Delhi District Court
Sc No. : 8717/16 Fir No. : 14/12 U/S: 21/29 ... vs . Palgiri Siddiqui & Ors. Page No. 1 Of 29 on 16 February, 2017
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CNR No. : DLND01-000160-2012
SC No. : 8717/16
FIR No. : 14/12
U/S : 21/29 NDPS Act
PS : Special Cell
State
Versus
1. Palgiri Siddiquie
S/o Sh Sidhu Hussain
R/o 7/886-6, Seemapuri Colony, Kaddappa,
Andhra Pradesh.
2. Mohd. Dawood
S/o Sh Gul Agha
R/o Frah, Distt. Khaksefid,
Karakhus (Afghanistan).
3. Sikander Owaish
S/o Sh Kalandar
R/o Herat (Afghanistan),
Presently at 30, Masjid Lane,
Bhogal, New Delhi. (Absconder vide order dated 31.01.2014)
......... Accused persons.
Date of receipt of file in this Court : 02.01.2017
Date of filing of charge sheet : 09.11.2012
Date when arguments were heard : 04.02.2017
Date of judgment : 16.02.2017
JUDGMENT
1 The charge sheet in the present case has been filed against the aforementioned accused persons u/s 21/29 of The Narcotics Drugs and SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 1 of 29 Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act'). 2 Briefly stated, the facts that can be culled out from the assertions made in the charge sheet and documents filed therewith are as follows:
(a) On 22.06.2012 Insp. Devender Singh, Special Cell, SR was present at his office at New Friends Colony when he received an information from a secret informer that one Afgani National namely Dawood who was staying in a hotel either at Daryaganj or Jama Masjid would come at about 2.30pm at Millennium Park near Sarai Kale Khan and would deliver Heroin to some one, that he could be apprehended and a large quantity of Heroin could be recovered from him.
(b) Insp. Devender Singh informed about the said information to ACP/NDR through telephone who directed him for necessary legal action. This information was recorded vide DD No. 6 at 10.35am in Roznamcha, Special Cell, SR by Insp. Devender Singh. A copy of said information was sent through R-ACP to ACP, Lodhi Colony. As per directions of ACP, the said Insp.
Devender Singh formed a raiding party consisting of SI Mohd. Mobin, ASI Mahipal Singh, HC Balraj Singh, HC Ajay Kumar, Ct Rajesh Kumar and Ct Satish Kumar and they were briefed about the said information. Insp. Devender Singh along with the above said raiding party with the secret informer went in two private vehicles at about 1.10pm for the spot.
(c) Insp. Devender Singh, HC Ajay Kumar and Ct Satish Kumar along with the secret informer were seated in the vehicle of HC Balraj Singh. In the other vehicle, one Ct Rajesh Kumar, SI Mohd. Mobin and ASI Mahipal Singh were seated. After reaching the bus stand of Sarai Kale Khan, Insp. Devender Singh got stopped the vehicle and requested 5-6 passersby after telling them about the information to join the raiding party, however, none agreed to join the raiding party and left without telling their names and addresses. Thereafter, they reached at parking no. 1 of said Millennium park and there also Insp. Devender Singh requested 2-3 persons present there to join the raiding party after telling them about the information, however, no one SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 2 of 29 agreed to join it. Insp. Devender Singh thereafter got parked the vehicles in the said parking, briefed the members of the raiding party and directed them to take positions in different directions there.
(d) On the said date i.e. 22.06.2012 at about 2.40pm two boys one of whom was tall and fair and looked like Afgani and another one of short height came and stood near the corner of said parking. The boy with short height was having a big jute bag in his hand. The secret informer pointed out towards the said boys to the effect that they had come to take the supply of Heroin. After about 10 minutes, one more person who was tall, fair, had beard and looked like Afgani also came there with a bag on his back, saw here and there and after going to the earlier standing two boys started conversation with them. The secret informer identified said person and told that he was the Afgani who had come to supply Heroin.
(e) Thereafter, the person who had come in the last with a bag on his back removed the said bag from his back, took out some packets from the bag and during conversation gave one packet each to the said two boys. The short height boy kept the said packet in his jute bag, whereas, the tall boy kept the said packet in his hand.
(f) At that time, Insp. Devender Singh signalled to the members of the raiding party, the raiding party surrounded the said two boys and the said person from all the sides and apprehended them. At that time also, 2-3 persons gathered there who were also requested to join the investigation after briefing them, however, they did not agree and left the spot.
(g) Insp. Devender Singh thereafter introduced himself and his raiding party to the said three persons and also enquired from them their names. On interrogation, the short height boy disclosed his name as Palgiri Siddique S/o Sh Sidhu Hussain R/o Kaddapa, Andhra Pradesh. The tall and fair boy (who came earlier) disclosed his name as Sikander Owaish S/o Sh Kalandhar R/o Herat, Afganistan, presently at 30, Masjid Lane, Jangpura, Bhogal, New Delhi. The person/Afgani who came afterwards disclosed his name as Md SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 3 of 29 Dawood S/o Gul Agha R/o Farah, Afganistan, presently at Hotel S K Palace, Jama Masjid, Delhi.
(h) Insp. Devender Singh told them that he was having the information that the said three persons / accused were involved in the illegal trade of Heroin, they were also having the heroin at that time and therefore their search was to be conducted. After that, Insp. Devender Singh gave notice u/s 50 NDPS Act to all of them and were made to understand that they were having a legal right to be searched before a Magistrate or a Gazetted Officer and that before their search they were also having the legal right to search the raiding party. All the said three accused were given separate notices u/s 50 NDPS Act, they received the notice, the notice was read over to them and they were made to understand it.
(i) Insp. Devender Singh thereafter requested Sh Manishi Chandra, the then ACP/NDR to come on the spot who reached there at about 3.30pm. In the presence of said ACP the accused persons were searched. Search of accused Palgiri Siddique was taken and his jute bag of pink and khaki colour, on which CDJ was written in English with something written in south Indian language, was found to contain one lining bed sheet, one grey colour t-shirt and beneath it one transparent polythene containing cream colour substance in powder and crystal form. The said polythene was found stapled from upside, it was opened from one side by removing the staple pin, it was checked by colour, smell and testing kit and was found to be Heroin. The recovered packet was weighed on electronic weighing machine and was found to be 1000gms. Out of it, 20 gms was taken out as sample, which was put into a transparent pouch. Its mouth was locked. One cloth parcel / pullanda was prepared and was marked as S-1. The remaining heroin was put in the same transparent polythene, was stapled again, was put in the same jute bag alongwith bed sheet and t-shirt and a cloth parcel was made which was marked as A. Both the said pullandas were sealed with seal of DSN.
SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 4 of 29
(j) After that, search of accused Sikander Owaish was taken, the packet in black polythene in his right had was checked and it was found that one transparent polythene containing cream colour substance in powder and crystal form was found in it. The said polythene was opened after removing the staple pin, it was checked by colour, smell and testing kit and was found to be heroin. The said recovered packet was weighed on the electronic weighing machine and was found to be 1010gms. Out of it, 20 gms was taken out as sample, which was put into a transparent pouch. Its mouth was locked. One cloth parcel / pullanda was prepared and was marked as S-2. The remaining heroin was put in the same transparent polythene, was stapled again, was put in the same black polythene and a cloth parcel was made which was marked as B. Both the said pullandas were also sealed with seal of DSN.
(k) Thereafter, search of accused Mohd. Dawood was taken in which his light brown colour backpack on which Puma was labeled was checked which was found to contain two transparent polythenes containing cream colour substance in powder and crystal form. The polythenes were found stapled, which were opened from one side by moving the stapler pin and were checked by colour, smell and testing kit and were found to contain heroin. The recovered packets were weighed on the electronic weighing machine and were found to contain 1020 grams and 2232 grams out of which 20 grams from each packet were taken out as samples and were put in two transparent polythenes. Their mouth were locked, cloth parcels were made and marked as S-3 and S-4. The remaining heroin was put in the same transparent polythenes, were stapled again, was put in the same bag, cloth parcel was made and were marked as C and D. All the said three pullandas were also sealed with seal of DSN.
(l) The FSL Form was filled regarding all the recoveries and seal DSN was affixed on it. Seal after use was handed over to H.C. Ajay Kumar. All the recovered heroin parcels and sample parcels were seized through seizure SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 5 of 29 memo.
(m) Thereafter, Inspector Devender Singh prepared a rukka and handed over the same to H.C. Balraj who took the same along with carbon copy of the seizure memo, all the sealed pullandas and FSL form to the police station with the instructions to handover the rukka to duty officer for registration of FIR and the remaining articles to the SHO. H.C. Balraj went to PS along with the said items, handed over the rukka to the duty officer and handed over remaining items to SHO Insp. Rajender Singh Sehrawat in his office at PS Special Cell, Lodhi Colony. After registration of FIR, H.C. Balraj came back to the spot along with copy of FIR and original rukka and handed over the same to SI Anand Swaroop to whom further investigation was assigned and who was present at the spot.
(n) SI Anand Swaroop to whom further investigation was marked prepared the site plan at the instance of Insp. Devender Singh, arrested the accused persons, conducted their Jamatalashi and recorded their disclosure statements.
(o) Thereafter, they returned back to PS along with the accused persons. The jamatalashi articles of the accused persons were deposited with the Malkhana and the accused persons were produced before the SHO Insp. Rajender Singh Sehrawat. Thereafter they all returned back to the office of Special Cell, New Friends Colony. On 23.06.2012, SI Anand Swaroop prepared a special report under section 57 NDPS Act regarding recovery of heroin and arrest of accused persons which was handed over by him to Reader of ACP after forwarding the same by Insp. Devender Singh.
(p) During the course of investigation, the sample pullandas of this case were sent to FSL, Rohini through Ct. Satish Kumar and after receiving and collecting the report from FSL, the present charge sheet was filed. 3 On the basis of material placed on record, charges were framed against all the three accused persons by learned predecessor of this court vide order dated 16.04.2013 for the offence punishable under section 21(c) read with section 29 SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 6 of 29 NDPS Act. Further charge under section 21(c) NDPS Act was also framed against all the three accused separately. The accused persons pleaded not guilty and claimed trial.
4 In order to prove its case against the accused, the prosecution has examined total 12 witnesses.
5 It is pertinent to note that accused Sikander Owaish absconded during the trial and was declared an absconder vide order dated 31.01.2014 of Ld. Predecessor of this court.
6 PW1 SI Daler Singh has inter alia deposed to the effect that on 23.06.2012 he was working as Reader to ACP, SR and at about 10:30 a.m, a special report under section 57 NDPS Act regarding search and seizure of contraband was received by the office of ACP vide diary no. 1640. The said report was prepared by SI Anand Swaroop and was forwarded by Insp. Devender Singh. The said report has been proved as Ex PW1/A. PW1 deposed that the said report was put up before Sh. Manishi Chandra, ACP, NDR on that day as he was also looking after the work of ACP, SR. The relevant diary register has been proved as Ex PW1/B. 7 PW2 ACP( then Inspector ) Devender Singh, PW3 H.C. Ajay and PW5 H.C.Balraj are the member of the raiding team which had apprehended the accused persons. They have deposed on similar lines and have reiterated more or less the assertions as made in the charge sheet. As per their depositions, the information received from the secret informer was reduced into writing vide DD no.6 at about 10:35 a.m and its copy has been proved as Ex PW2/A. DD no.9 vide which the raiding party left the office and proceeded towards the spot in two private vehicles has been proved as Ex PW2/B. The notices issued to the accused persons namely Paligiri Siddiqui, Sikander Owaish and Mohd.Dawood under section 50 of the NDPS Act have been proved as Ex PW2/C to Ex PW2/E. The seizure memo prepared with respect to the recovery of heroin from accused Paligiri Siddiqui and its sample has been proved as Ex PW2/F. The seizure memo prepared with respect to the recovery of heroin from accused Sikander Owaish and its sample has been proved as Ex PW2/G. The seizure memo prepared with SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 7 of 29 respect to the recovery of heroin from accused Mohd. Dawood and its two samples along with Pithoo bag has been proved as Ex PW2/H. The rukka prepared by PW2 at the spot has been proved as Ex. PW2/I. The pullanda Mark A containing a jute bag, one bed sheet, one T-shirt and a transparent polythene containing some substance contained the items as recovered from accused Paligiri Siddiqui. The jute bag was proved as Ex P1, the bed sheet was proved as ExP2, the T-shirt was proved as Ex P3 and the polythene with substance was proved as ExP4. The pullanda Mark B containing a black colour polythene and a transparent polythene containing some substance contained the items as recovered from accused Sikander Owaish. The black colour polythene was proved as Ex P-5 and the transparent polythene with substance was proved as Ex P6. The pullanda Mark C + D containing one Pithoo bag and two transparent polythenes containing substances contained the items as recovered from accused Mohd.Dawood. The Pithoo bag was proved as Ex P-7 and two polythenes with substance were proved as Ex P8 and P9. The arrest memos of accused Paligiri Siddiqui, Sikander Owaish and Mohd. Dawood have been proved as Ex PW3/A, Ex PW3/B and ExPW3/C respectively. The Personal search memos of accused Paligiri Siddiqui, Sikander Owaish and Mohd. Dawood have been proved as Ex PW3/D, Ex PW3/E and ExPW3/F respectively. The disclosure statements of accused Paligiri Siddiqui, Sikander Owaish and Mohd. Dawood have been proved as Ex PW3/G, Ex PW3/H and ExPW3/I respectively.
8 PW4 Ct. Satish Kumar has deposed that on 28.06.2012 on the instructions of the IO he reached PS Special Cell, Lodhi Colony, Delhi where after taking forwarding letter from ACP /NDR he collected the four sealed samples duly sealed with the seal of DSN and RSS along with FSL form and went to FSL Rohini vide RC no. 58/21/12 from Malkhana. He took the aforesaid sealed sample pullanda and FSL form to Rohini, deposited the same, obtained the receipt and returned back at the office of Special Cell and handed over the receipt to the IO. He deposed that till the samples remained with him no one tampered with them and their seals remained intact. The RC has been proved as Ex PW4/A and the receipt issued by SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 8 of 29 FSL is Ex P4/B. 9 PW6 Dr. Sami Ahmed has deposed that in the year 2012 he was serving at hotel S.K.Palace, 3858, Gali Khirki Tafazzul Hussain, Kala Mehal, behind Kasturba Gandhi hospital, Daryaganj. He deposed that on 30.06.2012 officials of PS Special Cell came to the hotel and inquired about staying of Mohd. Dawood in the said hotel. PW6 verified the record and informed that one person namely Mohd. Dawoood son of Gul Aga came to stay in the hotel, room no. 105 was given to him, entry was made in the hotel register at serial no. 3125, accused Mohd. Dawood mentioned his phone number as 8882968856 and that the accused stayed in the hotel and left it in the morning of 22.06.2012 without checking out. Entry was also made in that regard in the hotel register. He also produced the record of sending of C-form to the police officials. The copy of register having entry no. 3125 in the name of Mohd.Dawood has been proved as Ex PW6/A. 10 PW7 Dr. Adesh Kumar, Sr. Scientific Officer ( Chemistry ),Rohini, Delhi has proved the original forwarding letter that was received in the lab from PS Special Cell in the case as Ex PW7/A. He has proved the records maintained at the time of receiving the samples by the FSL Rohini on 28.06.2012 as Ex PW7/B. The report prepared by the witness with respect to the analysis conducted by him of the samples sent to FSL has been proved as Ex PW7/C. As per report, the said samples were found to contain Caffeine, 6-monoacetylmorphine and diacetylmorphine ( chemical name of heroin ).
11 PW8 ACP Manishi Chandra has deposed that on 23.06.2012 he was posted as ACP, New Delhi Range with additional charge of Southern Range. He deposed that on that day his Reader produced original report u/s 57 NDPS Act Ex PW1/A having diary no. 1640 Ex PW1/B and after perusing the same he had seen and returned it to the Reader for record.
12 PW9 Insp. Anand Swaroop was marked the further investigation of the case on 22.06.2012 at about 05.00 p.m upon which he reached Millennium park parking where PW2 Insp. Devender Singh along with staff met him and produced all the three accused persons along with the relevant documents i.e. seizure memo in SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 9 of 29 original, copy of notices under section 50 NDPS Act etc. He deposed that at that time PW5 H.C. Balraj was proceeded to go to PS with rukka and parcels for registration of the case and he left the spot at about 05.30 p.m. The site plan prepared by PW9 at the instance of PW2 has been proved as Ex PW9/A. He also arrested the accused persons and conducted their personal search. He deposed that at the time of arrest of accused Mohd. Dawood at about 08.30 p.m, PW5 came back at the spot and handed over copy of FIR and original rukka to him and thereafter he mentioned the case particulars on the relevant memos. He also recorded the disclosure statements of accused persons. On 23.06.2012, PW9 also prepared special report under section 57 NDPS Act regarding recovery of heroin and arrest of accused persons which has been proved as Ex PW9/B and deposed that he handed over the same to Reader of ACP after forwarding the same by PW2. 13 PW10 H.C.Sanjeev has inter alia deposed that he was posted as MHC(M) PS Special Cell, Lodhi Colony on 22.06.2012 and he has proved the entries in the malkhana register maintained by him with respect to case property, pullandas, FSL form, carbon copy of seizure memos, articles recovered during the personal search of accused persons as ExPW10/A and Ex PW10/B. He has also proved the entry vide which four pullandas along with form FSL and other documents were handed over to PW4 Ct. Satish Kumar vide RC no. 58/21/12 for depositing in FSL, Rohini as Ex PW10/C. He deposed that on 01.08.2012, Ct.Rajesh deposited four parcels sealed with the seal of FSL, Rohini in the Malkhana and the entry in that regard has been proved as Ex PW10/D. RC no. 58/21/12 is Ex PW10/E. The copy of the receipt dated 28.06.20-12 issued by FSL is Ex PW10/F. The witness deposed that till the samples remained in his possession no one tampered them and the seal remained intact.
14 PW11 SI Krishan Pal was posted as Duty Officer on 22.06.2012 at PS Special Cell, Lodhi Colony and on that day at about 06.00 p.m. received a rukka from PW5 H.C.Balraj Singh sent by PW2 Insp. Devender Singh. On the basis of the rukka, PW11 recorded the FIR on DD no. 8 and completed the same vide DD no. 10A. PW11 recorded the case FIR Ex PW11/A under Section 21 NDPS Act. He SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 10 of 29 also made endorsement Ex PW11/B on the rukka and lateron handed over the copy of FIR and original rukka to PW5 for handing over the same to PW9 for further investigation.
15 PW12 Insp. Rajender Singh Sehrawat has deposed to the effect that on 22.06.2012, he was posted as SHO PS Special Cell, Lodhi Colony, New Delhi and on that day, at about 6 PM, PW-5 HC Balraj Singh came to PS and handed over a rukka to duty officer to register the case. He deposed that after that PW-5 came to him at his office and handed over to him 8 pullandas Mark A, B, C, D, S1, S2, S3 and S4, one FSL Form and three carbon copy of seizure memos, all the pullandas and FSL form were having seal of DSN and that PW-12 put his seal of the RSS on all the said 8 pullandas and FSL Form. PW-12 further put the FIR number on the carbon copy of the seizure memos, FSL Form and all the pullandas alongwith his signature. PW-12 called MHC (M) alognwith register no. 19 in his office, handed over the aforesaid articles to him, who made relevant entries in register no. 19 and PW-12 also signed the same. The relevant copy of register no. 19 is Ex.PW10/A and DD no. 9A in that regard has been proved as Ex.PW12/A. 16 The entire aforementioned incriminating evidence was put the accused persons and their respective statements under section 313 Cr.P.C. were recorded. Both the accused persons denied all the incriminating evidence on record against them and stated that they were innocent and had been falsely implicated in the present case.
16.1 Accused Mohd. Dawood inter alia stated that he was not apprehended in the manner as deposed by the prosecution witnesses and he had never gone to the Millennium Park. He deposed that in fact he was apprehended alone by two police officials in civil clothes from hotel S.K. Palace, Jama Masjid, Delhi on 22.06.2012 and that he did not even know his co-accused persons. He stated that he was not informed about any legal right under section 50 NDPS Act. He stated that no notice under section 50 NDPS Act was served upon him or upon his co-accused in his presence and that his signatures were obtained on blank papers. He further stated that nothing was recovered from his co-accused in his presence and that no SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 11 of 29 samples from any substance were drawn in his presence. He stated that he was not carrying any pithoo bag and no drugs were recovered from his possession. He also stated that he had not given any disclosure statement and that since no contraband was recovered from is possession, hence, he did not wish to say anything with respect to the testimony of expert witness. He admitted that he had stayed in hotel S.K. Palace behind Kasturba Gandhi Hospital, Darya Ganj, New Delhi but he did not remember the room number. He denied that he in conspiracy with his co-accused acquired, possessed or dealt with heroin. He further stated that on 22.06.2012, he had gone to FRRO, R.K. Puram for giving particulars about his stay in Delhi, when he came back to S.K. Palace Hotel at about 11:20 am, the manager of the hotel asked him to sit down at a chair near the reception, two persons out of whom one was wearing Pathani suit with Muslim cap on his head and another one was wearing shirt pants came near him, sat on the chairs on right and left side of him and they asked whether he was Imran to which he replied that he was not Imran but was Mohd. Dawood. He stated that said persons asked him to show his passport, he showed them his passport, they snatched the same from him and started searching him. He stated that they snatched his Nokia mobile phone, bank ATM Card, $ 7000 and Rs. 3000 - Rs. 4000/- Indian currency and bills about Punjabi garments purchased from India. He further stated that thereafter they caught hold of him by his hand, told him that they were police officials, took him to his room in the hotel, they searched his room but found nothing incriminating, they brought him outside, made him to sit in an auto rickshaw and took him to PS Lodhi Colony. He stated that after about 20 minutes, the said police officials took him to a room at the second floor, said police officials started interrogation, gave beatings to him, at that time he could not properly understand as he was not knowing Hindi and they compelled him to sign certain blank papers. He preferred not to lead any defence evidence.
16.2 Accused Paligiri Siddiqui inter alia stated that he was not apprehended in the manner as deposed by the prosecution witnesses and he had not never gone to the Millennium Park. He stated that he was forcibly picked up from hotel Sri Krishna SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 12 of 29 Palace, Nangli Rajapur, Near Sarai Kale Khan, ISBT, Delhi and therefrom he was taken to PS where he was falsely implicated, his signatures were taken on many blank papers and he was also forced to write certain things on a paper there. He stated that no proceedings were conducted at the spot as he was not present there, every paper was got signed from him in the PS and he was not informed about his legal rights. He stated that no notice under section 50 NDPS Act was served upon him or his co-accused in his presence and his signatures were obtained on blank papers in PS. He stated that he was not carrying any jute bag and no drugs were recovered from his possession. He stated that no samples from any substance were drawn in his presence and no documents were prepared in his presence. He also stated that since no contraband was recovered from his possession, he did not wish to say anything with respect to the testimony of expert witness. He stated that he did not even knew his co-accused person before his arrest. He stated that he was never present at the spot, nothing incriminating was recovered from his possession, he is a permanent resident of Andhra Pradesh and had come to Delhi to go to Ajmer Sharif to offer his prayers. He preferred to lead defence evidence in support of his case.
17 Although, the accused Paligiri Siddiqui preferred to lead defence evidence in his statement under section 313 Cr.P.C., however, as per record, the said accused did not lead any defence evidence and the defence evidence was closed vide order dated 03.12.2015 of the Ld. Predecessor of this court.
18 I have heard the final arguments on behalf of Ld. Addl. PP for the State and Ld defence counsels on behalf of the accused persons. I have also carefully perused the record.
19 The Ld. Counsels for the accused persons have advanced the following arguments:-
(i) It was argued that DD no. 6 dated 22.06.2012 of Special Cell/SR Ex.PW2/A vide which the secret information was recorded would show that the information was to the effect that an Afghan National namely Dawood, who was staying in some hotel of Darya Ganj in Jama Masjid would come to SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 13 of 29 Millennium Park at about 2:30 PM and would supply the drugs (heroin) to some of his contact. It was argued that the said information would disclose that the specific information was only qua one supplier and one recipient, however, the name, appearance and particulars etc. of recipient were not mentioned. He referred to the testimony of PW-2, a member of the raiding party, and argued that in the absence of any name, appearance and particulars etc. of the recipient how the informer identified the accused persons as the persons who had come to receive the supply of heroin. He argued that in the secret information, the place was only mentioned as 'Millennium Park', which is a very big park, has lot of common public space, many gates, various parking lots, then how the raiding team and the informer could directly go to parking number 1 of Millennium Park. He also referred to the cross-examination of PW-2 wherein inter alia he has deposed that the secret informer had told him that accused Dawood would come at parking number 1 of Millennium Park. He thus argued that it seemed that the police officials had some other information which was not recorded in Ex.PW2/A and therefore, there is non-compliance of section 42 (1) NDPS Act which is fatal to the case of the prosecution. Reference was also made to site plan Ex.PW9/A which only mentions the gate no. 1 of parking no. 1 but does not mention any park. In that regard specific reference was also made to cross-
examination of PW-2 wherein he inter alia deposed that a secret informer had told him that accused Dawood would come at parking no. 1 of Millennium Park, however, the said parking no. 1 has not been mentioned in Ex.PW2/A.
(ii) It was argued that it is an admitted case on behalf of the prosecution that the accused persons did not know English and Hindi language, PW-2 did not call for any official interpretor and astonishingly called PW-8 ACP Manishi Chandra for the said purpose and that too after service of notices under section 50 NDPS Act to the accused persons. He also referred to the notices under section 50 NDPS Act i.e. Ex.PW2/C (with respect to accused Paligiri Siddiqui), Ex.PW2/D (with respect to accused Sikandar Owaish) and SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 14 of 29 Ex.PW2/E (with respect to accused Mohd. Dawood) and argued that no reply/option whatsoever of the accused persons was recorded. He further argued that testimony of PW-8 ACP Manishi Chandra, who was allegedly called at the spot by PW-2 as accused persons did not know English and Hindi language, is totally silent on that aspect. He thus argued that there was total non-compliance of section 50 NDPS Act which is also fatal to the case of the prosecution.
(iii) He referred to the testimony of PW-9 Inspector Anand Swaroop, Second IO of the case, and argued that no investigation was made regarding the train by which the accused Paligiri Siddiqui had come from Andhra Pradesh, no investigation was done as to where he stayed, about his address etc. He argued that no witness from hotel Sri Krishna Palace was joined in the investigation by the IO and thus contended that the case of the prosecution against the accused persons is false and fabricated.
(iv) It was argued that the prosecution did not join any independent witness despite the fact that they were aware that the accused persons were not knowing English or Hindi language and some of them were foreigners. He argued that the testimony of prosecution witnesses in the absence of any public witness should be subjected to a very strict scrutiny. He contended that as per the case of the prosecution, the information was received at about 10:25 am, the raiding party left their office at about 1:10 PM and the information was regarding the time of 2:30 PM i.e. the raiding party had sufficient time to associate and join the public witnesses, however, no such public witness has been joined during the entire investigation including the search and seizure proceedings and on that score also the case of the prosecution should be discarded. He also argued that the Millennium Park is a public place with lot of crowd and even then no public witness has been joined in the investigation.
(v) During arguments reference was made to personal search memos of the accused persons i.e. Ex.PW3/D (of accused Paligiri Siddiqui), Ex.PW3/E (of SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 15 of 29 accused Sikandar Owaish) and Ex.PW3/F (of accused Mohd. Dawood). It was argued that the said personal search memos would show that one mobile phone each was seized from each of the accused, however, the investigating agency has failed to point out any connection between the accused persons and no CDRs have been proved on record. He also argued that where was the money to be paid in lieu of supply of huge quantity of heroin. He contended that it is not the case of the prosecution that any money was exchanged. He argued that as per the case of the prosecution, accused Mohd. Dawood was to supply contraband to the remaining two accused persons, the said accused persons must be in touch of each other to meet at Millennium Park, their mobile phones were also allegedly seized but the investigating agency has failed to show any previous talks, communication or connection between them and has failed to prove any call detail records on record.
(vi) During arguments reference was made by Ld. defence counsels to the seizure memos Ex.PW2/F (qua accused Paligiri Siddiqui), Ex.PW2/G (qua accused Sikandar Owaish) and seizure memo Ex.PW2/H (qua accused Mohd. Dawood). It was argued that the said seizure memos are highly doubtful as the main witness who has been shown in the said memos is 'Sh. Manish Prakash, ACP/NDR', however, no such witness although being the senior most member present there has been cited or examined by the prosecution in support of its case. In that context further reference was made to the testimony of PW-2, star witness for the prosecution, who has deposed to the effect that at that point of time he was not aware about the correct name of ACP, he being recently posted and therefore, he had written the said name as 'Manish Prakash' instead of 'Manishi Chandra'. It was argued that the testimony of PW-8 ACP Manishi Chandra is however totally silent regarding witnessing any search or seizure proceedings thus raising a serious doubt on the alleged recovery of contraband from the accused persons, serious doubt over the seizure memos of contraband from accused SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 16 of 29 persons and as a consequence the entire case of the prosecution. It was argued that in view of the testimony of PW-8, the case of the prosecution is bound to fail and it is fatal for the prosecution.
(vii) It was argued in light of testimony of PW-8 that there was non- compliance of section 42 (2) NDPS Act also as PW-8 has not deposed in the court that any such information was given to him.
(viii) It was further argued in the light of testimony of PW-8 that there is non examination of a material witness in this case. He referred to the examination-in-chief of PW-2, the star witness for the prosecution, and argued while referring to seizure memos Ex.PW2/F to Ex.PW2/H that PW-8 has not deposed anything about his witnessing any such seizure or about his signatures on Ex.PW2/F to Ex.PW2/H. It was argued that it creates a total doubt over the case of the prosecution including the seizure and recovery and thus is fatal to the case of the prosecution.
(ix) It was argued that PW-2 has deposed to the effect that private vehicles were used during the alleged raid, as per case of prosecution, one vehicle belonged to PW-5 HC Balraj and one vehicle belonged to Ct. Rajesh, however, the description and registration number of the said vehicles have not been mentioned in the rukka Ex.PW2/I, said Ct. Rajesh has not been examined as a witness and even one Mr. Muneem Bhati stated to be registered owner of one vehicle as deposed by PW-5 has not been examined by the prosecution. It was argued that in the said circumstances, the use of said alleged private vehicles by the raiding party becomes highly doubtful and even no circumstance has been shown by the prosecution as to why no government vehicle was used.
(x) It was argued that PW-2 has deposed in his cross-examination that seal after use was handed over to PW-3 HC Ajay but the seal was returned to PW-2 in three days after the seizure proceedings. It was contended that no handing over memo or taking over memo was prepared in that regard. It was further argued that as per testimony of PW-2, he received the seal back SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 17 of 29 within three days i.e. by 25.06.2012, however, it would be evident from the testimony of PW-4 Ct. Satish Kumar that he took the sealed samples alongwith FSL Forms to FSL only on 28.06.2012. It was thus argued that till the dispatch of case samples to FSL, the seal was back in the possession of PW-2, the malkhana where the case property was lying is within the control of police only and hence there was every possibility of tampering with the samples before their dispatch to FSL. It was argued that if any doubt is raised over the authenticity of samples then it is absolutely fatal to the case of the prosecution as 'stringent the punishment stricter the proof'.
(xi) It was contended that in terms of testimony of PW-2, Ct. Satish (PW-4) was also member of the raiding party, however, PW-4 is also silent while deposing that he was member of the raiding party. It was thus argued that the case of the prosecution becomes doubtful and the benefit should go to the accused persons.
(xii) It was contended that PW-2 has admitted during his cross-examination that although the color of the substance mentioned in the seizure memos was cream but the color of the substance as produced during the testimony was of brown color. In that regard, reference was also made to the testimony of PW-7 Dr. Adesh Kumar, Senior Scientific Officer, Chemistry, Rohini, Delhi. It was thus argued that there are chances of manipulation in the case property and the samples.
(xiii) It was contended during arguments after referring to testimony of PW-3 HC Ajay, a member of the raiding party, that he had no knowledge about anything of the said park and is a total unreliable witness. It was further argued that in his cross-examination, PW-3 has specifically deposed that he was not the witness of search, seizure and sealing and that he was not the witness to any of the documents prepared before the registration of the FIR. It was thus contended that the testimony of said witness is also totally unreliable and it further casts a strong doubt over the entire case of the prosecution.
SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 18 of 29
(xiv) The following judgments were also referred to by the Ld. defence counsels during the final arguments:-
1. Gunesh Kumar Vs. State, Crl. A. 1696/2014, decided on 18.07.2016 by Hon'ble Delhi High Court.
2. Eze Val Okeke @ Val Eze Vs. Narcotic Control Bureau, 2005 (1) C.C.Cases (HC) 72 of Hon'ble Delhi High Court.
3. Phuman Singh Vs. State of Punjab (P&H), 2006 (3) JCC (Narcotics) 188 of Hon'ble Punjab and Haryana High Court.
4. Emma Charlotte Eve Vs. Narcotic Control Bureau, 2000 (2) JCC (Delhi) 331 of Hon'ble Delhi High Court.
5. Ritesh Chakarvarti Vs. State of M.P., 2007 (1) JLJ 239 of Hon'ble Supreme Court of India.
6. Narcotics Control Bureau Vs. Gurnam Singh, 2013 (8) LRC 342 (Del) of Hon'ble Delhi High Court.
7. Kishan Chand Vs. State of Haryana, 2013 (3) LRC 212 (SC) of Hon'ble Supreme Court of India.
8. Makhan Singh Vs. State of Haryana, 2015 (3) LRC 47 (SC) of Hon'ble Supreme Court of India.
9. Bahadur Singh Vs. State of Madhya Pradesh, 2002 (1) JCC 12 of Hon'ble Supreme Court of India.
10. Narcotics Control Bureau Vs. Sukh Dev Raj Sodhi, 2011 VII AD (S.C.) 27 of Hon'ble Supreme Court of India.
11. State of Rajasthan Vs. Gurmail Singh, 2005 I AD (Cr.) S.C. 554 of Hon'ble Supreme Court of India and .
12. Beckodan Abdul Rahiman Vs. State of Kerala, Crl. A. No. 619 of 1997 dated 16.04.2002 of Hon'ble Supreme Court of India.
20 Per contra, Ld. Addl. PP for State argued that the prosecution has been able to prove its case against the accused persons beyond reasonable doubt. He argued that PW-2, PW-3 and PW-5 who were members of the raiding party have SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 19 of 29 deposed consistently with respect to the search and seizure proceedings from the accused persons. He argued that there was a complete compliance of mandatory provisions of section 42 and section 50 NDPS Act and also other directory provisions. He argued that even otherwise the provision of section 50 NDPS Act would not apply to any search or seizure where the substance was not being carried on the person of the accused as in the present case it was being carried in a jute bag by accused Paligiri Siddique and in a backpack by accused Mohd. Dawood. He referred to the judgment of Hon'ble Apex Court in case of State of H.P. Vs. Pawan Kumar, (2005) 4 SCC 350. He argued that mere non joining of public witnesses would not make the case of the prosecution doubtful as the testimony of police witnesses are otherwise reliable in this case. He also rebutted the contention of Ld. defence counsels stating that the same were without any merits and that the accused persons were found in conscious possession of the contraband. 21 After hearing both the sides, it may be held at the outset that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. 22 There is merit in the contention of Ld. defence counsels that there is non compliance of section 42 (2) NDPS Act. In that regard, PW-2 has deposed that the secret information was reduced into writing vide DD no. 6 Ex.PW2/A at about 10:35 am and the same was forwarded to ACP NDR. He also deposed that he had informed the secret information to ACP NDR on telephone who had instructed him to do the needful. PW-2 further inter alia deposed that as he felt that accused were not conversant with local language so he requested ACP NDR Sh. Manishi to reach at the spot and the ACP arrived at about 3:30 pm. PW-3 HC Ajay who as per the case of the prosecution, was also a member of the raiding party, also deposed that because of language problem, PW-2 requested ACP Manishi Chandra to come at the spot, who arrived at about 3:30 pm. PW-5 HC Balraj, another member of the raiding party, has also deposed on the similar lines. Said Sh. Manishi Chandra, ACP NDR (New Delhi Range) has been examined as PW-8 by the prosecution. PW-8 astonishingly has deposed only qua the production of original report under section 57 NDPS Act Ex.PW1/A before him and has not deposed even an iota SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 20 of 29 regarding the receiving of any such information from PW-2 either orally or in writing. In facts, he has not even deposed to the effect that he was called on the spot by PW-2 due to any language problem or that the search and seizure of contraband from accused persons was done in his presence. As the testimony of PW-8, immediate Senior official of PW-2, is totally silent regarding the receipt of any such information by him, hence, it can be safely held that the prosecution has miserably failed to prove that the copy of Ex.PW2/A was sent to his immediate official superior in compliance of section 42 (2) NDPS Act. Further, there is no documentary evidence to show that the copy of said information was ever sent by PW-2 to his immediate official superior.
22.1 Compliance of section 42 NDPS Act is mandatory and there cannot be any escape from its strict compliance and this question is no more res integra and stands fully answered by the Constitution Bench Judgment of Hon'ble Supreme Court of India in case of Karnail Singh Vs. State of Haryana, 2009 (8) SCC 539 in which it was held that the compliance with the requirements of section 42 (1) and 42 (2) NDPS Act in regard to writing down the information received and sending a copy thereof to the superior officer should normally precede the entry, search and seizure by the officer but in special circumstances involving emergent situation, the recording of the information in writing and sending a copy thereof to official superior may get postponed by the reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. While total non compliance with requirements of sub-section (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay would be acceptable compliance of section 42. It has been so also held in Sukhdev Singh Vs. State of Haryana, AIR 2013 SC 953: (2013) 2 SCC 212 and Kishan Chand Vs. State of Haryana (supra).
22.2 Reverting to the facts of the present case, the testimony of PW-8 and record would show that it is a case of total non compliance of section 42 (2) of NDPS Act and the co-joint reading of testimonies of PW-2 and PW-8 puts the matter beyond ambiguity that there was total non compliance of section 42 (2) of NDPS Act. It is a SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 21 of 29 settled law that the said provision is mandatory in nature and once there is total non compliance of it, then the prosecution case must fail. My view are substantiated by the judgment of Hon'ble Apex Court in the case of Kishan Chand (supra). In view of said discussion and in view of non compliance of section 42 (2) of NDPS Act, the accused persons namely Paligiri Siddiqui and Mohd. Dawood are entitled to be acquitted on this ground alone.
23 Further, it was rightly pointed out by Ld. defence counsels that no genuine efforts whatsoever appear to have been made by the IO for including public witnesses in the search and seizure proceedings.
23.1 As per the case of the investigating agency, as deposed by PW-2, PW-3 and PW-5, the secret information was received at about 10:25 am on 22.06.2012 at the office of Special Cell, SR to the effect that one Afghani namely Dawood (accused Mohd. Dawood) who was staying in the area of Jama Masjid was indulged in trafficking of heroin and would at about 2:30 pm supply the same to someone at Millennium Park. PW-2 in that regard has deposed that at about 1:50 pm, they reached at Millennium Park and took position in parking no. 1 where he asked 2-3 passersby to join the raiding party but none agreed to join it. During cross- examination, PW-2 deposed that all the 2-3 passersby at Millennium Park who were requested to join the proceedings were males only and some of them were young and some were middle aged. He further deposed in his cross-examination that he did not request any government official to join the raiding party to go to Millennium Park though they had 3/4 hours with them. As per the prosecution, the incident occurred at about 2:40 pm at parking no. 1 of the Millennium Park which admittedly is a busy area, the public persons were also available at the spot and from the receipt of secret information till the actual recovery there was a time interval of about 3-4 hours but still it has not come in the testimony of PW-2 or any other prosecution witness that sincere efforts were made to join any public witness or any passersby or even any government official in the proceedings. The case of the prosecution otherwise also becomes doubtful in view the testimony of PW-8 who has not even deposed that he was present at the spot at the time of alleged search SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 22 of 29 and recovery or that he was a witness to seizure memos Ex.PW2/F to Ex.PW2/H. It is a settled law that in case the story of the prosecution seems doubtful then the testimony of police witnesses should be subjected to a great scrutiny and the presence of public witnesses should be insisted upon. It is true, as argued by Ld. Addl. PP for State, that ordinarily the public at large show their disinclination to come forward to become a witness but the least that is expected from the investigating agency is that it must be able to satisfy the court that genuine and sincere efforts were made by the investigating officer to make public persons join the proceedings. It has been repeatedly held by the higher courts that in such cases as the present one, the investigating agency must show that sincere efforts were made to join independent witnesses and the investigating agency cannot merely take a stand that public witnesses refused to join the investigation. Further, the facts of the case would show that the raiding party including PW-2 felt that the accused were not conversant with the local language, hence, it was more necessary for the investigating officer to join public witnesses in this case. The Hon'ble Delhi High Court in a recent case under NDPS Act with title Gunesh Kumar (supra) has inter alia held as follows:
"4.------------------------------------------- At the outset, it may be mentioned that the entire evidence produced by he prosecution consists of only of police officials. No independent public witness was associated at any stage of the investigation. True, testimony of the police officials per se without independent corroboration by public witnesses cannot be discarded. Equally it is true that the charge under the Act is serious and entails serious consequences. The minimum sentence prescribed under the Act is imprisonment for ten years with a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution, though it is not absolute rule as sometimes it may not be possible to find independent witness at all place at all times. The obligation to join public witnesses is not absolute. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officials was believable after taking due care and caution in evaluating their evidence.
5. In the instant case, despite having ample time to join independent public witness, no sincere efforts seen to have been made by the investigating agency. No plausible explanation has been offered for SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 23 of 29 that. Routine response to have requested 4/5 passersby to join the investigation has been given which does not inspire confidence. It has come on record that there were number of shops nearby. But no attempt was made to associate any independent public witness from the shops etc. Under these circumstances, evidence of the police officials is to be perused with great circumspection.
6. Number of discrepancies have emerged in the prosecution case making it unsafe to base conviction on the sole testimonies of the police officials....................................."
23.2 The Hon'ble Supreme Court of India in case of Ritesh Chakarvarti (supra) has inter alia held as follows:
"22. An offence committed under the NDPS Act is a grave one. Procedural safeguard to the accused provided under a statue require strict compliance. ............................................................................................. ................
23. ........................................................................................................... .......
24. In a case under the NDPS Act, recovery of contraband in presence of the independent person assume accordance. ...................................................................
25. It was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken.
26. Illustration (g) appended to section 114 of Indian Evidence Act reads thus:
The court may presume
(a) to (f) XXXXXXX
(g) that evidence which could be and is not produced would, if produced be unfavourable to the person who holds it.
27. An adverse inference, therefore, could be drawn for non- examination of material witnesses. "
23.3 The failure to join public witnesses in the present case on the peculiar facts of the case thus is a serious lacunae in the case of the prosecution. As discussed above, the testimony of police witnesses is not credible in this case in the absence of corroboration by independent public witnesses. Benefit of doubt accrued goes in SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 24 of 29 favour of the accused persons who are entitled to acquittal in the present case. 24 Further, there are material discrepancies and contradictions in the testimonies of the material witnesses including the members of the raiding team leading to a strong suspicion on the case of the prosecution including that the search and seizure proceedings may not have taken place at the spot, as projected by the prosecution creating a doubt over the entire case of the prosecution. 24.1 The secret information which was recorded vide DD no. 6 dated 22.06.2012 Special Cell/SR Ex.PW2/A would show that it was to the effect that an Afghan national namely Dawood, who was staying in some hotel of Darya Ganj in Jama Masjid would come to Millennium Park at about 2:30 pm and would supply the drugs (heroin) to some of his contact and if a raid is conducted then they can be apprehended and huge amount of drugs can be recovered. The said information would thus show that any specific gate number or location of said Millennium Park was not mentioned in the said information. PW-2 has however deposed that at about 1:50 pm they reached at Millennium Park and took position at parking no. 1. In cross-examination, PW-2 has inter alia deposed that the secret informer had told him that accused Dawood would come at parking no. 1 of Millennium Park and that he had reduced the said information in writing vide Ex.PW2/A. PW-2 was confronted with Ex.PW2/A wherein it was not recorded that the accused Dawood would come at gate no. 1 parking. PW-2 further deposed that there must be 2-3 entry points of the said park though he was not very sure of the said number. PW-3 also deposed that they were told to join the raiding party which was proceeding to conduct the raid at Millennium Park parking no. 1. He also deposed in his cross- examination that in his presence there was no talk between the informer and PW-2. PW-5 also deposed that PW-2 discussed receiving of a secret information about one Dawood and told that at about 2:30 pm said Dawood who was an Afghan national would come at parking no. 1, Millennium Park, Sarai Kale Khan to deliver the consignment of heroin to his associates. In his cross-examination, PW-5 inter alia deposed that when he was first briefed by PW-2, he had directed us to proceed to parking no. 1 of gate no. 1 of the Millennium Park. The prosecution has thus SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 25 of 29 failed to prove as to how the raiding party could have reached directly at parking no. 1 of said park which has admittedly other entry points also in the absence of any specific secret information as to where the accused persons would assemble in the park. It thus seems that there is substance in the submissions of the Ld. defence counsels that PW-2 did not record the complete secret information or has fabricated said information in Ex.PW2/A. It is a material lacunae in the case of the prosecution which also points towards non compliance of section 42 (1) of NDPS Act and also raises a strong doubt over the testimony of material witnesses including that of raiding party i.e. PW-2, PW-3 and PW-5.
24.2 As discussed above, the secret information Ex.PW2/A was only qua one Afghan national namely Dawood who would supply drugs to someone at the Millennium Park. It would show that there was no information regarding the identity of the persons or person who would come to receive the drugs. The testimony of PW-2 would however show that PW-2 deposed that the informer identified accused Paligiri Siddiqui and Sikander Owaish as the persons who had come to receive the supply of the heroin. No suitable explanation has come on record to show as to how, the secret informer could have identified the said two accused persons and that too when till then the accused Mohd. Dawood had not reached at the spot. It further proves that some material concealment was done by PW-2 either in recording Ex.PW2/A or that it had been fabricated later on which in turn would point out a lacunae in compliance of section 42 (1) NDPS Act.
24.3 PW-3 Ct. Ajay who was also a member of the raiding party as per the case of the prosecution inter alia deposed in his cross-examination that he had no knowledge as to how many gates were there in the said park, he did not remember if there was any marking on the gate of the park and he could not say as to what was the distance between the parking area and the gate. He specifically deposed in his cross-examination that there was no Buddha Stupa in the said area and again deposed that he did not see any Buddha Statute in the parking area. PW-2 has however deposed to the contrary by deposing that there was a Buddha Stupa in the said park. PW-3 further deposed in his cross-examination that he did not remember SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 26 of 29 the color of the bag (of accused Mohd. Dawood). He also deposed that as he was not the witness of search, seizure and sealing, therefore, he could not tell the details of the bag, the description and the contents of the documents. He further deposed that he was not a witness of the documents prepared before the registration of the FIR. The said testimony of PW-3 would show that he was not aware about any material fact about the Millennium Park, about the bag of the accused containing the contraband and himself admitted that he was not the witness of search, seizure and sealing. It raises a very strong doubt on the presence itself of PW-3 at the spot i.e. raises a strong doubt over the testimony of PW-3 and in turn over the entire case of prosecution including the alleged search and seizure of contraband from the accused persons in the manner as deposed by the prosecution witnesses.
24.4 PW-8 Sh. Manishi Chandra ACP/NDR has deposed that on 23.06.2012, he was posted as ACP NDR with additional charge of Southern Range (SR) and on that day his reader produced original report under section 57 NDPS Act Ex.PW1/A vide diary no. 1640 Ex.PW1/B. He has thus only deposed regarding report under section 57 NDPS Act and nothing else. The record would however show that PW-2 has deposed to the effect that when he felt that the accused were not conversant with local language so he requested PW-8 (ACP NDR Sh. Manishi) to reach at the spot, PW-8 arrived at about 3:30 pm and in the presence of PW-8 the search and seizure proceedings regarding contraband were conducted. PW-2 has specifically deposed that at that time he was not aware about the correct name of the ACP, he being recently posted and therefore had written the said name as 'Manish Prakash' instead of 'Manishi Chandra'. The seizure memos of contraband i.e. Ex.PW2/F to Ex.PW2/H i.e. qua accused Paligiri Siddiqui, Sikander Owaish and Mohd. Dawood respectively would show that the all bear the name and signatures of Sh. Manish Prakash, ACP/NDR as one of the witness to them. In terms of testimony of PW-2, said Sh. Manish Prakash is actually PW-8 ACP Manishi Chandra. As discussed above, PW-8 has not deposed to the effect that any search and seizure proceedings were conducted in his presence or that the seizure memos Ex.PW2/F SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 27 of 29 to Ex.PW2/H bear his signatures. It is pertinent to note that in terms of the testimony of PW-2, the Senior most gazetted officer present at the time of alleged search and seizure was in fact PW-8 but in view of the silence of PW-8 in his testimony in that regard, a very serious doubt is raised upon the entire story of the prosecution including the alleged search and seizure and also the seizure memos Ex.PW2/F to Ex.PW2/H. It raises a strong doubt over the testimony of all the material witnesses including that of the raiding party i.e. PW-2, PW-3 and PW-5 and also that of PW-8 and also raises a strong suspicion as pointed out by the Ld. defence counsels that the search and seizure proceedings may not have taken place at the spot as projected by the prosecution. It is absolutely fatal to the case of the prosecution.
24.5 These all are material contradictions and discrepancies in the testimony of the material prosecution witnesses including the alleged recovery witnesses and members of the raiding team i.e. PW-2, PW-3 and PW-5 and also PW-8. It raises a very strong suspicion over the credibility of their testimony including the recovery and entire case of the prosecution. The benefit of doubt goes in favour of the accused persons who are entitled to acquittal in the present case. 25 It has been repeatedly reiterated by the Hon'ble Supreme Court in its various judgments that it must be borne in mind that severer the punishment, greater has to be the care taken to be seen that the case of the prosecution is proved beyond all reasonable doubt. In State of Punjab Vs. Baldev Singh, (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that all the safeguards provided in a statute are scrupulously followed". The Hon'ble Apex Court in the case of Noor Aga Vs. State of Punjab & Anr. 2008 (3) JCC ( Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act. In the case of Gunesh Kumar (supra) Hon'ble Delhi High Court has inter alia held as follows:
"12. In the light of the above referred deficiencies, inconsistencies and SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 28 of 29 discrepancies, the statements of the police officials without independent corroboration cannot be believed to base conviction for stringent provisions of the Act. The law on this aspect is that 'stringent the punishment stricter the proof', in such like cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication.................... Mere apprehension of the appellant is not enough. The evidence is scanty and lacking to establish that the contraband was recovered from the possession of the appellant in the manner alleged by the prosecution on the said date and time. The appellant deserves benefit of doubt."
26 In view of the above said discussion, this court is of the opinion that the prosecution has not been able to prove its case against the accused persons Mohd. Dawood and Paligiri Siddiqui beyond reasonable doubt and therefore the said accused persons namely Mohd. Dawood and Paligiri Siddiqui are hereby acquitted of the charges under Section 21(c)/29 NDPS Act, 1985. 27 The case property lying with MHC (M) PS Special Cell qua this case is confiscated to state and the State would be at liberty to dispose of the same as per the prescribed rules after the expiry of period of appeal / revision / order of the appellate court, if an appeal is preferred.
28 As per record, accused Sikander Owaish has been declared as an absconder vide order dated 31.01.2014. In the said circumstances, the testimonies of prosecution witnesses as recorded after 31.01.2014 be read under section 299 Cr.P.C. against the said accused and the file be taken up again as and when he is arrested in this case.
29 File be consigned to record room after completion of all other necessary formalities.
Announced in the open
Court on 16.02.2017 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS/NEW DELHI
16.02.2017
SC No. : 8717/16 FIR No. : 14/12 U/S: 21/29 NDPS Act PS: Special Cell State vs. Palgiri Siddiqui & Ors. Page no. 29 of 29