Delhi District Court
State vs . on 13 July, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
CNR No. DLSE01-000128-2017
SC No 10/2017
FIR No. 431/2015
P.S.Hazrat Nizamuddin
State
Vs.
Raifq Ahmad
S/o Sh. Safiq Ahmad
R/o Jhuggi Sunder Nursery Near DPS School
Mathura Road, New Delhi
........ Accused
Date of Institution : 24.08.2013
Date of reserving the Judgment : 04.07.2023
Date of Judgment : 13.07.2023
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution, are hereby succinctly recapitulated. It was alleged that on 25.06.2017, at about 05:05 PM near DPS School Sunder Nursery Mathura Road, New Delhi within the jurisdiction of PS H.N Din, the accused was apprehended while carrying plastic bag which was found to be containing 'Ganja' weighing 2 Kg 200 Grams. Thereafter, the accused was arrested, and investigation was conducted. Whereafter, the present chargesheet came to be filed.
CHARGES FRAMED QUA THE ACCUSED
2. Charges under section 20 (b) (ii) B of NDPS Act, were framed qua the FIR No431/2015 State Vs.Rafiq Ahmad Page No. 1/27 Digitally signed by ARUL ARUL Date:
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accused to which he pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In the trial, the prosecution in support of its case, examined ten witnesses, the succinct testimonies whereof are as follows:
4. PW-1 ASI Dharambir deposed that on 25.06.2015, he was the part of raiding team constituted by SI Ashok, which investigated the matter, and arrested the accused from whom the recovery of contraband item was effected.
5. PW-2 Dr Adesh Kumar Senior Scientific Officer deposed that he was the FSL expert, who proved his report viz Ex.PW2/A whereby it was opined that the seized item contained Ganja.
6. PW-3 ASI Patel Chadrakant deposed that he was the duty officer on 25.06.2015. He further deposed that he had registered the FIR no 431/15 on the basis of rukka brought by SI Ashok. The said FIR was p roved as Ex. PW3/A.
7. PW-4 ASI Ram Dhan deposed that he was deployed as an MHC(M) on 25.06.2015. He deposed that the case property of the present case ie two pullandas duly sealed with the seal of AK and VP alongwith FSL form and copy of seizure memo alongwith Jamatalashi articles vide entry no 2789 of Malkhana Register no 19 was deposited in the Malkhana by the then SHO Ved Prakash. The same was proved as Ex. PW4/A.
8. PW-5 ASI Suraj Pal Singh deposed that he was posted as HC on FIR No431/2015 State Vs.Rafiq Ahmad Page No. 2/27 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.07.13 14:23:32 -0300 25.06.2015. He further deposed that he was the part of raiding team constituted by SI Ashok which investigated the matter and apprehended the accused and effected recovery of contraband item from him.
9. PW6 SI Ashok Kumar deposed that he was the recipient of the secret information. He further deposed that he produced the secret informer before the then SHO Ved Prakash who directed him to constitute a raiding party. He further deposed that after lodging the secret information vide DD no. 20A at about 04:10 PM, he recorded their departure entry vide DD no 21A and they left their office by a private Hyundai Accent Car. He further deposed that he further investigated the matter and effected recoveries of contraband item from him and apprehend him in the present matter.
10.PW-7 Inspector Ishwar Singh deposed that he was posted as SI PS H.N Din on 25.06.2015 and the investigation of this case was assigned to him after registration of FIR. He deposed that he made inquiries from accused person and arrested him in this case vide arrest memo Ex. PW1/C and collected personal search and one notice u/s 50 NDPS Act with case of Rs. 200/-. He prepared the personal search of accused and interrogated him and recorded his disclosure statement vide Ex. PW1/E.
11.PW-8 ASI Mohd Akhlakh deposed that he was assistant in the office of ACP. He had brought the summon record ie one report u/s 57 NDPS Act dated 25.06.2015, prepared by SI Ishwar Singh PS H.N Din which was FIR No431/2015 State Vs.Rafiq Ahmad Page No. 3/27 Digitally signed by ARUL ARUL Date:
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received in the office of ACP 26.06.2016. The original report was proved as Ex. PW8/A.
12.PW-9 ACP Ved Prakash deposed he was posted as SHO PS H.N Din.
He further deposed that he received the secret information regarding movement of Narcotics material. He further deposed that he made DD entry vide DD no. 20A regarding receipt of secret information vide Ex. PW6/D1. He also deposed that he had constituted a team of staff with secret informer and proceeded to disclosed placed vide their departure entry DD no. 21 A which was already proved as Ex. PW6/D2.
13.PW-10 SI Chandra Shekhar deposed that he was posted H.N Din. He further deposed that the further investigation of this case was assigned to me. He had perused the file and found the entire investigation has already been done by the previous IOs. He had recorded the statement of one witness namely HC Devraj and prepared the chargesheet and put up the same before the Court on 06.01.2017.
14.The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE
1 ASI Dharambir He was a part of raiding which
apprehended the accused and
effected recoveries from
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contraband items from them.
2 Dr Adesh Kumar Senior He was the FSL expert, who
Scientific Officer. proved his report viz Ex.PW2/A
whereby it was opined that the
seized item contained Ganja.
3 ASI Patel Chandrakant He was the duty officer who
registered the FIR no 431/15 on
the basis of rukka brought by SI
Ashok. The said FIR was p roved
as Ex. PW3/A.
4 ASI Ram Dhan He was the MHC(M), and proved
the relevant entries in the
Malkhana Register no 19. He
also corroborated the compliance
of Section 55 of NDPS Act.
5 ASI Suraj Pal Singh He was a part of raiding which
apprehended the accused and
effected recoveries from
contraband items from them.
6 SI Ashok Kumar He is the first IO of the case who
received secret information,
conducted investigation leading
to arrest of the accused, and
effected recoveries from him.
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7 Inspector Ishwar Singh He was the 2nd IO, to whom
investigation was assigned after
registration of the FIR, who
recorded statements of witnesses,
prepared site plan, interrogated
and arrested the accused,
conducted their personal search.
8 ASI Mohd Akhlakh He was the Assistant to the ACP
who proved the factum of receipt
of report u/s 57 of NDPS Act
9 ACP Ved Prakash He was posted as SHO and had
received sealed parcels, FSL
form and carbon copy of seizure
memo on which he affixed his
seal of VP and deposited the
same in the Malkhana after
making entry in Malkhana
Register in compliance of Section
55 of the NDPS Act
10 SI Chandra Shekhar He filed the chargesheet before
the court after completion of the
investigation of the case.
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STATEMENT OF ACCUSED
15.Accused was examined u/s 313 Cr.PC. In his defence, he averred that he does not know anything about this case and has been falsely implicated in this case. He deposed that in the month of June, 2015, he was called by SI Ashok through HC Dharambir from his house and SI Ashok asked him to become the police informer in the area, upon that he denied because he was working for Special Staff and then on account of this, he planted him in this false case. Accused further deposed that he is innocent and that nothing was recovered from his possession. Further, accused did lead evidence in his defence.
EVIDENCE LED BY THE ACCUSED PERSON
16.In support of his defence accused examined one witness,the succinct testimony whereof are as follows:
17.DW-1 Smt Halima deposed that she knew accused Rafique, as he used to live in her neighbourhood for the last 78 years. In the month of June 2015, at about 09:00AM, when she was cleaning vessels out of her jhuggi, then one beat police official came to the jhuggi of accused and took away with him. In the evening, the wife of accused told her that the police had implicated the accused. The wife of accused told her that the police official had asked the accused to do work for them but her husband refused because he was working for some other unit of the police.
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ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
18. Sh. Wasi-Ur-Rahman, Ld. Public Prosecutor for the State submitted that all the relevant material prosecution witnesses have been examined and cumulatively they have proved the case of prosecution beyond reasonable doubt. It was also submitted by Ld. Addl PP for State that after the prosecution evidence, the statement of accused has been recorded u/s 313 Cr.PC. In his statement, the accused nowhere explained any circumstance proved against him and put to him during his examination. The accused also did not claim any prejudice for non compliance of any provision, if any,. It shows that no prejudice was caused to the accused even in case of non compliance of some provisions. It was submitted by Ld. Addl PP for State that substantial compliance has been done of all the mandatory provisions.
19.Ld. Addl PP for State contended that there is no reason to discard the testimony of witnesses examined in this case. Furthermore, there is no defence taken by the accused, which can be considered at par with the prosecution evidence. It was submitted that the Section of 42 of NDPS Act has been complied properly in this case. Although, there is no documentary proof of sending the DD No. 20A to ACP but the information was conveyed telephonically to the ACP. Ld. Addl PP for State further submitted that it is pertinent to mention here that the report FIR No431/2015 State Vs.Rafiq Ahmad Page No. 8/27 Digitally signed by ARUL ARUL VARMA Date:
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u/s 57 NDPS Act was sent to ACP, it clearly reflects that the DD No.20 A would have been sent to him but somehow it is not reflected on record.
20.Ld. Addl PP for State also submitted that therefore, substantial compliance of Section 42 NDPS Act has been done as required. Moreover, even non compliance of Section 42 NDPS Act may not vitiate the trial, if it does not cause prejudice to the accused, and in this case, the recovery was effected from a public place and thus Section 43 Act is attracted. Ld. Addl PP for State placed reliance on Bahadur Singh Vs State of Haryana (2010) 4 SCC 445. It was further submitted that the compliance of Section 50 NDPS Act has also been done. It was also contended by Ld. Addl PP for State that the substance which was recovered from the possession of accused has been analyzed in the FSL and it was found to be Ganja.
21.Lastly, Ld. Addl PP for State contended that the compliance of Section 55 NDPS Act has also been done by the SHO and apart from his testimony, it reflects from the relevant copy of Register no.19 proved in the court. All the relevant material prosecution witnesses have been examined and cumulatively they have proved the case of prosecution beyond reasonable doubt that 2.200 Kilogram of Ganja was recovered from the possession of accused. Hence, the accused is liable to be held guilty for the offence he is charged with. It was thus submitted by Ld. Addl PP for State that the case has been proved beyond reasonable doubt and thus accused ought to FIR No431/2015 State Vs.Rafiq Ahmad Page No. 9/27 Digitally signed by ARUL ARUL VARMA Date:
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be convicted.
22. Per contra, Sh. M. Nabi, Ld. Counsel for accused submitted that it has come in the cross-examination of ASI Dharambir that despite the arrest of accused being taken from Jhuggi, no witness was called from the Jhuggi area. It was further submitted that the said witness stated that the accused was at the distance of 20 meters from the South Gate of DPS School whereas SI Ashok Kumar stated that he was at the distance of 100 meter. Ld. Counsel further invited the court's attention to Ex. PW1/A to contend that his signatures were taken on the notice u/s 50 of NDPS Act but it was denied by him that he did not sign the notice u/s 50 of NDPS Act. Ld. Counsel further submitted that PW deposed that he had not even seen the notice. Ld. Counsel further submitted that there is no departure and arrival time to and fro from the police station to the hospital.
23. Ld. Counsel for accused further submitted that PW-4 ASI Ram Dhan who was the MHC(M), did not obtain signature of HC Dev Raj in Malkhana Register while handing over to him sample property for taking the same to FSL. Ld. Counsel further submitted that as per the testimony of PW-4, the FSL result was brought by Ct Gurdayal, but he was not cited as a prosecution witness. Ld. Counsel further submitted that in the Road Certificate ie Ex PW4/B, it has not been mentioned that the FSL form has also been sent, alongwith case property and sample seal. It was further submitted that IO did not call Security Guard of DPS School, any care FIR No431/2015 State Vs.Rafiq Ahmad Page No. 10/27 Digitally signed by ARUL ARUL VARMA VARMA Date:
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taker of Mazaar or any resident of Sundar Nursery Jhuggi to participate in the investigation. Ld. Counsel also contended that all the proceedings and the documents were prepared at the police station only. Ld. Counsel further submitted that in the cross-examination of PW-6 SI Ashok Kumar, it has come on record that he did not remember as to whether he had informed the SHO about the secret information personally or on phone. It was submitted by Ld. Counsel for accused that there were discrepancies in the position at the spot taken by the raiding team members. It was submitted by Ld. Counsel for accused that no DD no has been mentioned in the original notice u/s 50 of NDPS Act ie Ex. PW7/C. It was also submitted that it was deposed by PW-6 in his cross-examination that in the notice u/s 50 of NDPS Act, it has been mentioned that any Gazetted Officer or Magistrate can be called at the spot in order to search the accused. To this, Ld. Counsel contended, is in contravention of Mohd.
Jabir Vs State of NCT of Delhi, Bail Application no 1725 of 2022.
24. Ld. Counsel further submitted that that the IO did not make any arrival entry in the police station when he had taken the accused to Police station. Ld. Counsel submitted that it is strange that IO did not remember the measurement of the weighing machine nor could he remember whether he weighed the ganja with or without the bag. Ld Counsel also contended that the sample were sent to FSL after a delay of 7 days. Ld. Counsel submitted that firstly the FIR registered and then all the FIR No431/2015 State Vs.Rafiq Ahmad Page No. 11/27 Digitally signed by ARUL ARUL VARMA Date:
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proceedings of the investigation took place inasmuch the FIR number has already been written in the original notice u/s 50 of NDPS Act. Ld. Counsel for accused further submitted that the 1 st IO SI Ashok had averred tghat he had accompanied the 2nd IO SI Ishwar Singh to the spot at about 08:00 PM. However, this is in contrary to the stand taken by PW- 7, 2nd IO SI Ishwar Singh inasmuch as he avowed in his cross- examination that the FIR was received at about 07:00- 07:30 PM on 25.06.2015 and it is only after about 2-2 ½ hours of receiving them, that he proceeded to the spot with SI Ashok Kumar. Thus, Ld. Counsel has submitted that there is discrepancy of almost 2 hours in the time-line mentioned by both the witnesses.
25. Ld. Counsel also submitted that the police witnesses have omitted to record arrival and departure entries. Ld. Counsel for accused submitted that the prosecution could not prove the compliance of Section 57 of NDPS Act inasmuch as neither the then Reader to ACP nor was the ACP concerned summons as witness. It was further submitted that PW-8 ASI Mohd Akhlak averred that he never worked with the then ACP concerned and as such the witness would not be in a position to prove the relevant entries reflecting the compliance of Section 57 of NDPS Act. Ld. Counsel further submitted that there was also non compliance of Section 42 of NDPS Act inasmuch as there is no documentary proof regarding sending of DD no 20A. Ld. Counsel for accused pointed out that PW-8 ASI Mohd FIR No431/2015 State Vs.Rafiq Ahmad Page No. 12/27 Digitally signed by ARUL ARUL Date:
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Akhlak did not also mention any factum regarding DD No. 20 A in compliance of Section 42 of NDPS Act.
26.Ld. Counsel thus submitted that there are consistencies and discrepancies in the present matter and therefore benefit of doubt must enure in the favour of accused. Ld. Counsel thus submitted that accused ought to be exonerated.
STATEMENT OF REASONS FOR THE DECISION A. APPREHENSION OF ACCUSED AND RECOVERY OF ALLEGED CONTRABAND FROM HIM
27. The manner in which the accused was apprehended has been elucidated by the testimonies of the members of the raiding team party especially PW-1 ASI Dharambir, PW-5 ASI Suraj Pal Singh and PW-6 SI Ashok Kumar. They all deposed in similar vein that upon receipt of secret information on 25.06.2015 vide DD no. 20A, a raiding team was formed which left the police station with the secret informer after recording DD no. 21A viz Ex.PW6/D2 in compliance of Section 42 of NDPS Act. Thereafter, at about 5:35 PM, when the raiding team party reached at DPS School, Mathura Road the raiding team members took their positions and after 10-15 minutes, secret informer indicated towards accused, who was coming from the side of North gate of DPS School, Mathura Road, Sunder Nursery Jhuggi, who was carrying a polythene bag in his hand. Thereafter, the accused was apprehended by the police FIR No431/2015 State Vs.Rafiq Ahmad Page No. 13/27 Digitally signed by ARUL ARUL VARMA VARMA Date:
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party. Notice u/s 50 NDPS Act was given to accused but the accused refused to get searched in presence of Gazetted Officer or Magistrate.
Thereafter, the polythene bag in the hand of the accused was checked and when it was opened, the said polythene bag was containing one another black colour cloth packet in which Ganja was found. The recovered Ganja alongwith black cloth packet was weighed on electronic weighing machine which turned out to 2.200 Kg. Sample of 200 grams Ganja was taken out and was converted into pullandas with seal of AK and it was given mark S1. The remaining case property was put in the same cloth and polythene bag and was sealed in a pullanda with the seal of AK and it was given Mark R-1. Thereafter, the remaining investigation was conducted, and arrest memo, seizure memo personal search memo and site plan was prepared.
28. The contention of Ld. Counsel for the accused that no public witnesses were joined nor notice to any public witness was given to join the proceedings, pales into insignificance in light of the fact that PW-6 SI Ashok Kumar deposed that he had requested 4-5 passersby to join the raiding team but they all refused to do so after giving their reasonable excuses. Significantly, in this context, it would be useful to peruse the following extracts of Ajmer Singh v State of Haryana (2010) 3 SCC 746:
"19 The learned counsel for the appellant has submitted that FIR No431/2015 State Vs.Rafiq Ahmad Page No. 14/27 Digitally signed by ARUL ARUL VARMA VARMA Date:
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the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW 3, Paramjit Singh Ahalwat, DSP, Pehowa; PW 4, Raja Ram, Head Constable and PW 5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. 20 We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
29.Thus, the testimony of police witnesses cannot be disregarded merely on account of non joining of public witnesses. B. RECORDING OF SECRET INFORMATION AND COMPLIANCE OF SECTION 42 OF NDPS ACT
30. As per the prosecution, PW-6 SI Ashok Kumar received secret information on 25.06.2015, as the secret informer had come to the police station and had informed him that the accused will reach near DPS School Mathura Road, with ganja at about 4:00 PM to 5:00 PM. As per the testimony of PW-6 SI Ashok Kumar, he produced the secret informer FIR No431/2015 State Vs.Rafiq Ahmad Page No. 15/27 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.07.13 14:26:09 -0300 before the then SHO Inspector Ved Prakash, who after satisfying himself directed to constitute a raiding party. When Inspector Ved Prakash was examined as PW-9, he denied the suggestion that he did not apprise the senior officers about the secret information. He averred that DD No. 20A was sent to the ACP in a routine manner, however, no documentary proof was available on record. Thus, there is compliance of Section 42 of NDPS Act inasmuch as the secret information received by SI Ashok Kumar was duly reduced in writing at 4:10 PM vide DD No. 20A ie Ex.
PW6/D.
31. It is of utmost significance to note that the case of prosecution is that recovery of Ganja was made from the accused on a road near DPS School. Thus, as is evident from point A mentioned in the site plan Ex. PW7/A, this is a case where recovery has been made at a public place and not from any building, conveyance or enclosed place. Therefore, Section 43 of the NDPS Act would be attracted in the facts and circumstances of the present case, and not Section 41 or 42 of the Act. In this context, it would be useful to refer to Mohan Lal V State of Rajasthan (2015) 6 SCC 222 wherein it was held as thus:
"32 In the present case, the High Court has noted that the information was given to the competent authority. That apart, the High Court has further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer FIR No431/2015 State Vs.Rafiq Ahmad Page No. 16/27 Digitally signed by ARUL ARUL VARMA Date:
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taking the search is not required to comply with sub- sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a bridge of public road accessible to the public. The officer, Sub-Inspector is an empowered officer under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question of non-compliance with Section 42(2) does not arise."
32. Even the Constitutional Bench judgment of Karnail Singh Vs. State of Haryana (2009) 8 SCC 539, it was laid down as thus:
26 The material differences between the provisions of Section 42 and 43 of the NDPS Act is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of article, etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful."
C. COMPLIANCE OF SECTION 55 OF THE NDPS ACT BY THE SHO
33.At this juncture, it would be apt to refer to Section 55 of the NDPS Act:
"SECTION 55. Police to take charge of articles seized and delivered.- An officer-in -charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
34.In the present case, PW-9 ACP Ved Prakash, the officer in charge of SHO PS H.N Din was examined as a witness. He categorically deposed that the case property including sample, FSL form were produced before him and he signed the same and affixed his seal VP on the said parcel and the FSL FIR No431/2015 State Vs.Rafiq Ahmad Page No. 17/27 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.07.13 14:26:29 -0300 form. He further deposed that the exhibits were deposited by him in the Malkhana of the PS after mentioning FIR number on the said articles and that the MHC(M) made an entry in this regard in Register no 19 which is already Ex. PW4/A bearing his signatures at point-A.
35. Further, when the MHC(M) ASI Ramdhan was examined as PW-4, he corroborated the version of PW-9. He submitted that on 25.06.2015, Inspector Ved Prakash, the then SHO PS H.N Din deposited the case property of the present case ie two pullandas duly seal with the seal of AK and VP alongwith original FSL form and copy of seizure memo alongwith jamatalashi articles vide entry no 2789 of Malkhana Register no 19 copy which was Ex. PW4/A.
36. Thus, as is evident from the above deposition the prosecution evidence clearly discloses that the sealed articles were produced before Officer In- charge of the police station, that he had put his seal over those articles and there were sent for safe custody. Thus, there is due compliance of Section 55 of NDPS Act in terms of Ashok Kumar Vs State of Haryana AIR 2000 SC 3474 D. REPORT UNDER SECTION 57 OF NDPS ACT
37.It would be apposite to refer to Section 57 of the Act, which is reproduced hereunder:
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of FIR No431/2015 State Vs.Rafiq Ahmad Page No. 18/27 Digitally signed by ARUL ARUL VARMA VARMA Date:
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such arrest or seizure to his immediate official superior."
38.The legislative intent behind Section 57 of the Act, has been delved upon in Megha Ram v State of Rajasthan 1997 Cri LJ 3091 in the following words:
"Section 57 comes into play in the post-arrest period. It enjoins upon the officer, arresting an accused and effecting recovery of a narcotic drug or psychotropic substance from his possession, to inform his superior officers of the actions taken by him. Compliance of this provision is meant to serve a dual purpose. On the one hand it affords an element of authenticity to the action taken by him in the cause of preventing commission of offences against the NDPS Act. The consciousness of compliance of this section puts, in a sense, a sort of check on the arbitrary exercise of his powers of arrest and seizure by him under the Act and creates a sense of responsibility in him to act in accordance with relevant provisions of law so as not to be undermined in the estimation of his superior officers with regard to the discharge of his duties as a responsible officer. On the other hand the communication of the information apprises the superior officers of the position of offences against the NDPS Act and also of the steps taken and compliance of the relevant rules made by their subordinates in the administration of the said Act. If the officer has acted as a vigilant and duty conscious officer in the pre-arrest-stage of the proceedings and his evidence discloses satisfactory compliance of the mandatory provisions relating to that stage of proceedings and inspires confidence in Court, non-compliance or compliance with some irregularity of certain provisions relating to post-arrest period would not be fatal to the prosecution case as that would be a case of an offence already committed and concluded. The purpose of compliance of S. 57 is to afford further reliability to the action already taken by the subordinate, officer. In that sense of the matter compliance of S. 57 is not mandatory but for that reason its importance in the scheme of the Act cannot be minimised (see State of Punjab v. Balbir Singh)"
39.Ld. Counsel for the accused had rightly contended that the prosecution could not prove compliance of Section 57 of NDPS Act inasmuch neither the Reader to the ACP nor was the ACP concerned summoned as a FIR No431/2015 State Vs.Rafiq Ahmad Page No. 19/27 Digitally signed by ARUL ARUL Date:
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witness. In fact, to prove the report u/s 57 NDPS Act, the State only examined PW-8 ASI Mohd Akhlak, who was only an Assistant in the office of the ACP, New Friends Colony. He categorically deposed that he had not worked with the then ACP and also avowed that he neither knew as to who made the entry Ex. PW8/B in the diary register nor did he have personal knowledge whether the Reader had put up the report before the ACP. On this score, the Ld. Counsel for the accused rightly contended that there was non compliance of Section 57 of NDPS Act. However, since compliance thereof is not mandatory as discussed in Megha Ram (supra), benefit of doubt would not accrue in favour of accused.
E. COMPLIANCE OF SECTION 50 NDPS ACT
40.To adjudicate this issue, it would be profitable to refer to Section 50 of the Act, which reads as thus:
"Section 50: Conditions under which search of persons shall be conducted:
(1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate (2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1)"
41.The safeguards mentioned in Section 50 are intended to serve a dual purpose- to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by FIR No431/2015 State Vs.Rafiq Ahmad Page No. 20/27 Digitally signed by ARUL ARUL Date:
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an empowered officer.
42. Ld. Counsel for the accused submitted that in terms of Mohd Jabir (supra) it is essential that the notice u/s 50 of NDPS Act should mention that the accused has a right to exercise the option of himself getting searched before the nearest Magistrate, and not before any Magistrate.
43.During the course of arguments, Ld. Addl PP for State placed reliance on State of Punjab Vs. Baldev Singh, reported as AIR 1999 SC 2378 wherein the Hon'ble Court held that the information u/s 50 need be in writing. It was further held that:
"a search made by an empowered officer, on prior information, without informing the person of his right that if so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicity article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provision of the Section 50 of the Act"
44.Ld Addl PP for State further placed reliance on Prabha Shankar Dubey case [(2004) 2 SCC 56 (Cri 420] wherein a Division Bench of Hon'ble Supreme Court held that:
"11what the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form."
45.It was thus submitted by Ld. Addl. PP for the State that the FIR No431/2015 State Vs.Rafiq Ahmad Page No. 21/27 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.07.13 14:27:23 -0300 accused/applicant had waived of his right to be search in the presence of Gazetted officer or a Magistrate and the requirement of being searched in the presence of nearest Gazetted officer or a nearest Magistrate in terms of Section 50 NDPS Act would apply only where the accused requires a search. Reliance was also placed on the judgment of Nabi Alam @ Abbas Vs. State (Govt. Of NCT of Delhi) Bail Appl No. 2641/2018 and the relevant portion of the same is reproduced hereunder:
"26For the sake of clarity it is held that, axiomatically, there is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistate categorically waives such right by electing to be searched by the empowered officer. The words "if such person so requires", as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived "such requisition", as mentioned in the opening sentence of sub-Section (2) of Section 50 of the NDPS Signature Not Verified Digitally signed Signing Date:07.06.2021 15:26:10 Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only "if he so requires", upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act".
46.It is apparent from the decision relied by Ld. Addl PP for State that law has been settled by a Constitution Bench of the Hon'ble Supreme Court that the notice u/s 50 need not be in any prescribed form or even in FIR No431/2015 State Vs.Rafiq Ahmad Page No. 22/27 Digitally signed by ARUL ARUL VARMA Date:
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writing. Also, it is a settled law that mere procedural illegality in conducting the search and seizure the evidence collected does not become in admissible and serious prejudice to accused has to be shown. F. DEPOSIT OF EXHIBITS IN FSL FOR FORENSIC EXAMINATION AND FSL REPORT.
47. The sanctity of chain of custody qua deposit of Exhibits in FSL from the Malkahan was also duly proved by the prosecution. PW-4 ASI Ram Dhan who was the MHC(M), deposed that on the instruction of the IO, one sample pullanda duly sealed with the FSL Form was sent through HC Dev Raj vide RC No. 66/21/15 to FSL Rohini. This witness proved the copy of the RC as Ex. PW4/B. He further deposed that so long as the case property remained in his possession, it was not tampered with. Ld. Counsel for the accused had submitted that the MHC(M) did not obtain the signatures of HC Dev Raj in the Malkhana Register while handing over to him sample property for taking the same to FSL. However, mere omission to take such signatures cannot be treated as fatal to the case of the prosecution.
48.The FSL report Ex. PW2/A was proved by Sh. Adesh Kumar, Senior Scientific Officer, Chemistry, FSL Rohini, who deposed to the effect that on 03.07.2015, he had received one sealed cloth parcel duly sealed with the seal of AK and VP alongwith documents and specimen seals. He averred that upon opening of pullanda ie Ex. S-1was found containing FIR No431/2015 State Vs.Rafiq Ahmad Page No. 23/27 Digitally signed by ARUL ARUL Date:
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Greenish brown colour fruiting and flowering vegetative material stated to be Ganja. He further deposed that he had prepared the detailed report on physical, microscopic, chemical and TLC examination Ex. S1 was found to contain Ganja and detailed report in this regard was proved by him as Ex.PW2/A bearing his signatures at point-A. Thus, the factum of contraband item being Ganja was cogently established by this witness.
G. FAILURE TO EXPLAIN CIRCUMSTANCES APPEARING AGAINST THE ACCUSED
49.It was contended by the State that the accused did not avail the opportunity to explain the circumstances appearing in the evidence against him, and only put forth a mere bare denial or replied to the accusations by merely stating that 'it is incorrect'. He could not explain recovery of contraband items from him. The accused did not even put forth a plea of alibi. He only averred in his defence that in the month of June, 2015, he was called by SI Ashok through HC Dharambir from his house and SI Ashok asked him to become the police informer in the area, upon that he denied because he was working for Special Staff and then on account of this, he planted him in this false case. Accused further deposed that he is innocent and that nothing was recovered from his possession.
50. In his defence, the accused had produced one Halima as a defence witness. The witness deposed in his favour by averring that in June 2015, at about 09:00AM, one beat official came to the Jhuggi and took away FIR No431/2015 State Vs.Rafiq Ahmad Page No. 24/27 Digitally signed by ARUL ARUL Date:
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the accused. However, the credit of this witness was impeached by Ld. Addl PP for State and it was elicited from the witness that she neither knew her date of birth, nor the date of birth of her children nor the date of her marriage. In fact, she deposed as thus;
51. 'I do not know as to how many months are in a calender year'.
52. It is strange that the witness remembered the month and the year when the accused was allegedly lifted from his house by the police, but did not remember important days of her own life and events pertaining to her family. Thus, it is difficult to place reliance on her testimony.
53.There is a presumption u/s 54 of the NDPS Act which lays down that in trials under the NDPS Act, it may be presumed that the accused has committed an offence, unless and until the contrary is proved. The expression' unless and until the contrary is proved', clearly imposes the burden of proving that possession of prohibited substance is legal, or that he was not so found in possession, is on the accused himself. In this case, neither the presumption could be rebutted, nor could the accused explain the circumstances appearing in evidence against him. The inconsistencies or discrepancies in the version of the prosecution as pointed by Ld. Counsel for accused fall in the realm of minor inconsistencies and do not affect the case of the prosecution, which is based on cogent evidence.
54. Furthermore, nothing could be elicited in the testimony of the prosecution witnesses, and nothing therein could be controverted by the accused. The FIR No431/2015 State Vs.Rafiq Ahmad Page No. 25/27 Digitally signed by ARUL ARUL VARMA Date:
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veracity of the testimony of the witnesses was cogent and credible, and complete reliance can be placed upon them. In this context, it would be pertinent to reproduce the following extracts of Jagjeet Singh Vs State (2015 )219 DLT 199 "All these witnesses were subjected to lengthy cross- examination, however, nothing material could be elicited to discredit their testimony. It has further come in their statements that some independent persons were tried to be joined, however, none agreed. Ordinarily, the public at large show their disinclination to come forward to become the witness. If the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. The Court cannot disbelieve the testimony of police officials solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weights over the quantity of evidence. These aspects have been highlighted in State of UP v. Anil Singh, 1989 SCC (Cri) 48; State (Govt. of NCT of Delhi) v. Sunil, 2001 SCC (Cri) 248; Ramjee Rai v.
State of Bihar, (2007) 2 SCC (Cri) 626; Kashmirilal v. State of Haryana, (2014) 1 SCC (Cri) 441.
Appreciating the evidence on record on the anvil of the aforesaid principles, there is no acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and trustworthy."
CONCLUSION
55.Ergo, in view of the reasons hereinabove discussed in extenso, this Court is of the considered view that the prosecution has proved beyond reasonable doubt that the accused Rafiq Ahmad was found in possession of 2 Kg 200 of Ganja on 25.06.2017, at about 05:05 PM near DPS School Sunder Nursery Mathura Road, New Delhi within the jurisdiction of PS H.N Din, is therefore convicted for the offence punishable under FIR No431/2015 State Vs.Rafiq Ahmad Page No. 26/27 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.07.13 14:28:33 -0300 Section 20 (b) (ii) B of NDPS Act.
56.Further, after complying with the provisions of Section 40 of the NDPS Act, the name and place of business and residence of the convict, nature of the contravention, the factum of the accused being convicted, be published in two English and two Vernacular newspapers and in news websites. Accordingly, copy of this order be sent to the DCP concerned, to do the needful.
57. Put for arguments on quantum of sentence on 22.07.2023 Announced in the open court Digitally signed by on 13.07.2023 ARUL ARUL VARMA VARMA Date:
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(ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi FIR No431/2015 State Vs.Rafiq Ahmad Page No. 27/27