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1 The charge sheet in the present case has been filed against the above mentioned accused persons u/s 15/29 of The Narcotics Drugs & 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 12.02.2010 at about 5.50am one secret informer appeared before ASI Paramjeet Singh in the Narcotics Cell and informed him that two persons with the name of Deepak and Manpreet used to deal in and supply in wholesale and retail of Chura Post (Poppy Straw) by bringing it from Gwalior, Madhya Pradesh. The secret informer further informed that on 12.02.2010 at between about 6.30am to SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 1 of 27 07.00am, the said persons would come at Sarai Kale Khan bus stand to supply Poppy Straw to someone and that they could be apprehended by taking suitable action in time.

9 PW6 HC Amar Singh deposed that on 12.02.2010 at about 12.45pm PW3 Ct Harender Singh handed one tehrir sent by PW9 ASI Paramjeet Singh on the basis of which he got typed the case FIR from the computer operator. The copy of the FIR has been proved as Ex PW6/A. He deposed that after registration of FIR, he handed over the copy of FIR to PW3 and further investigation of the case was handed over to PW10 ASI Rajbir Singh. The endorsement made by PW6 on the rukka has been proved as Ex PW6/B. He deposed that he started to record the FIR at 12.45pm and lodged DD No. 6 to that effect which has been proved as Ex SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 8 of 27 PW6/C. He deposed that he had concluded registration of FIR at 2.10pm and lodged DD No. 9 to that effect which has been proved as Ex PW6/D. 10 PW7 HC Om Prakash was posted as Reader to ACP Narcotics Cell, Shakarpur, Delhi on 12.02.2010 and at about 6.10am, a DD No. 4 dated 12.02.2010 was forwarded to Insp. Narcotics Cell who further forwarded the same to ACP Narcotics and CP Sh Sube Ram Yadav. The said DD has been proved as Ex PW7/A. He deposed that he had put the said DD before ACP Sh Sube Ram Yadav on 12.02.2010 itself and said ACP put his signatures on the same. PW7 made entry in diary register at Sr. no. 275 on 12.02.2010 which has been proved as Ex PW7/B. He further deposed that on 12.02.2010 special report u/s 57 NDPS Act was prepared by PW9 ASI Paramjeet Singh regarding seizure of 53 kg Poppy Straw which was forwarded to Insp. Narcotics Cell and was further forwarded by the Insp. to ACP N & CP on 12.02.2010 itself. He deposed that the said report was received in their office on 13.02.2010 which was placed by him before ACP Sh Sube Ram Yadav which he forwarded to Addl. DCP Crime. The original report received in the office of PW7 has been proved as Ex PW7/C bearing signatures of ACP Sh Sube Ram Yadav and Sh Sanjay Tyagi, Addl. DCP. PW7 deposed that he could identify the signatures of said officials as he had seen him writing and signing and had worked with them. An entry to that effect made by PW7 in the diary register has been proved as Ex PW7/D. Similarly, the special report u/s 57 NDPS Act prepared by PW10 ASI Rajbir Singh regarding arrest of accused persons and received in the office of PW7 on 13.02.2010 has been proved as Ex PW7/E and the corresponding entry has been proved as Ex PW7/F. 11 PW8 Insp. Kuldeep Singh was posted as SHO PS Crime Branch on 12.02.2010 and deposed to the effect that on that day at about 12.50pm, PW3 came to his office and handed over to him six pullandas Mark A, B, A1, B1, C, C1, two FSL forms and two carbon copy of seizure memo of Poppy Straw. The 06 pullandas and both the FSL forms were having the seal of PS. He deposed that he put one seal of KSY each on said 06 pullandas and both the FSL forms, he put FIR Nos. on the carbon copy of seizure memos, both the FSL forms and all the pullandas alongwith his signatures. He called PW5 HC Chand Ram, MHC(M) SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 9 of 27 along with register no. 19, handed over the aforesaid articles to him, PW5 made relevant entries in register no. 19, PW8 signed the same and MHC(M) took the aforesaid property in his possession. PW8 registered DD no. 7 in that regard which has been proved as Ex PW8/A. He deposed that on 26.02.2010 upon his instructions, PW5 entrusted the pullandas Mark A and A1 with both the FSL forms and other relevant documents to PW1 for depositing the same in FSL, Rohini. 12 PW10 ASI Rajbir Singh is the 2nd IO of the case who was handed over the investigation of this case on 12.02.2010 upon instructions of PW11. On that day at about 1.45pm, he left his office vide DD no. 11 Ex PW10/A, reached the spot at about 2.15pm where he met PW9, PW2 along with accused persons and PW9 handed over to him all the relevant investigation papers and accused. The site plan prepared by PW10 at the instance of PW9 has been proved as Ex PW10/B. He interrogated both the accused persons, arrested them, conducted their personal search and recorded their disclosure statements. He collected the copy of FIR and original rukka from PW6 and deposited personal search of both the accused with PW5. He also produced both the accused before PW11 in his office who made enquiries from them. He also gave information regarding arrest of accused persons to their relatives vide DD No.16 Ex PW10/C. He also prepared report u/s 57 NDPS Act of arrest of both the accused persons Ex PW10/D and produced it before PW11. He also collected the FSL result and after completing the investigation, the challan was prepared and filed in the court.

15.1 Accused Deepak Tomer inter alia stated in his statement u/s 313 Cr.P.C that he had no knowledge about the secret information, the secret information if received was false , he was never involved in the supply of Poppy Straw and he did not even know his co-accused before his apprehension in this case. He also stated that he was not apprehended in the manner as deposed by the prosecution witnesses, on 12.02.2010 he had come to Delhi from Madhya Pradesh to meet his sister Manju who used to reside in Chittranjan Park, he had SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 11 of 27 boarded a bus from Madhya Pradesh to come to Delhi at 12 midnight and the said bus had reached CNG petrol pump in Sarai Kale Khan at about 5:00-6:00 am when he was apprehended by the police. He stated that there were few police officials who were standing at the petrol pump, one boy got down from the bus and ran away immediately after the bus stopped, 2-3 police officials ran behind him, other police officials got into the bus and asked him and 4-5 other boys who were in the bus and were of same age to accompany them. He stated that no katta was in his possession when he was apprehended and he was not sitting on any katta on the footpath as deposed by the police officials. He stated that no notice u/s 50 NDPS Act was served upon him or his co-accused in his presence, police officials gave beatings to him with danda on his back, told him to sign blank papers, he was totally illiterate, he did not know what was written on the documents that the police officials had got signed from him and that they had got signed from him some blank and some partly written documents. He further stated that nothing at all was recovered from him and no samples from any substance were drawn in his presence as nothing was recovered. He stated that he has not given any disclosure, police officials gave beatings to him with danda on his back,told him to sign blank papers, the personal search articles shown to have been recovered from him were actually recovered and that the police has not shown Rs. 300 - 400/- in cash and the bus tickets which he was carrying in his personal search memo. He stated that no Poppy Straw was recovered from him and he has nothing to do with the case property produced before the court. He further stated that he heard the police officials talking among themselves that they had recovered some plastic kattas from the seat behind the driver seat of the above said bus, the boy who had ran away from the bus was brought to the police station but he and other boys were let off by the police officials, he was not permitted to go as the police officials were demanding Rs. 50,000/- from him which he refused being poor, gave beatings to him with a danda on his back and made him sign 4-5 blank papers. To a court query, the accused stated that he was not taken to any hospital for medical examination and that he was told about the police officials not to tell anything to SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 12 of 27 the Ld. Judge about beatings given to him and that if he would admit his guilt before the court, he would be allowed to go. He stated that he was never in supply of business of Poppy Straw, no such substance was recovered from him and he was not carrying any plastic katta with him. He preferred not to lead any defence evidence.

31.2 One other judgment which has been relied upon by the Ld. defence counsel is State of Rajasthan Vs Parmanand (Supra). In that case, the Hon'ble Apex Court held to the effect that a joint communication of the right u/s 50 (1) of NDPS Act may not be clear or unequivocal, it may create confusion and it may result in diluting the right. The Hon'ble Apex Court was therefore of the view that the accused must be individually informed that u/s 50 (1) NDPS Act, he has a right to be searched before a nearest Gazetted Officer or by nearest Magistrate. 31.3 In coming to the case in hand, it is evident that PW2, PW3 and PW9 have deposed to the effect that when PW9 apprehended both the accused, he introduced himself and the members of the raiding party, he also told the accused persons that they had been bringing Chura Post, he needed to take their search, if they wanted the search could be conducted in front of a Magistrate or a Gazetted officer and also asked the accused persons to conduct search of the members of the raiding party and govt vehicle. PW9 also deposed that accused persons refused to get themselves searched before the Magistrate or a Gazetted Officer or to take the personal search of the member of the raiding party and govt vehicle. PW9 deposed that he served notice u/s 50 NDPS Act to both the accused persons and the said notices have been proved as Ex PW2/A (qua accused Deepak) and Ex PW2/B (qua accused Manpreet Singh). He has deposed that both the accused were illiterate and reply on behalf of accused persons were also written by him. In cross examination, PW9 has denied the suggestion that no notice u/s 50 NDPS Act SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 24 of 27 was served upon the accused or that the notices u/s 50 NDPS Act were prepared while sitting in the office of Narcotics Cell. PW2 in his cross examination has deposed to the effect that notice u/s 50 NDPS Act was served upon the accused before opening the kattas/bags. PW3 in his cross examination has denied the suggestion that no notice u/s 50 NDPS Act was given before search of accused persons. PW3 further deposed in his cross examination that first of all the notices u/s 50 NDPS Act were given to the accused and thereafter they had given their refusals. It is thus evident that nothing has appeared in the cross examination of PW2, PW3 and PW9 to discredit their testimony on the said issue. The notices u/s 50 NDPS Act i.e. Ex PW2/A and Ex PW2/B also show that all necessary legal requirements were complied with by PW9 ASI (later on SI) Paramjeet Singh. In the said circumstances and discussion, it is safe to hold that the safeguards provided in Section 50 NDPS Act were duly observed by the raiding party including PW9. 31.4 Further, the facts of the case would show that the recovery of the contraband was effected from the accused persons from the katta/bag which they were respectively carrying as distinguished from their personal search. The Hon'ble Supreme Court of India in case of State of H. P. Vs Pawan Kumar (supra) has inter alia held as follows:-