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3. Further investigation of the case was handed over to SI Anand Swaroop. He prepared the site plan (Ex.PW-1/DA) at the instance of Inspector Satender Sangwan. He arrested Sanjeev Kumar vide arrest memo Ex.PW-1/D. His personal search was done vide memo Ex.PW-1/E and disclosure statement was recorded vide Ex.PW-1/C. The black bag from which the heroin was recovered was seized vide seizure memo Ex.PW-1/F. On 4th November 2010, three days PC remand of Sanjeev Kumar was sought.

4. On 6th November, 2010 HC Balraj and Ct. Rajesh were searching for the co-accused near Laxmi Nagar area. At 2:30 P.M., they received information from a secret informer that the co-accused namely Daniel would come at Vikas Marg near Shakkarpur Chungi at about 4:00 P.M. for supplying heroin to someone. Thereafter, SI Anand Swaroop reached the spot and took position on the road side at about 3:45 P.M. At about 4:00 P.M., they noticed an African coming from Laxmi Nagar side towards Shakkarpur Chungi who the secret informer identified as Daniel. On interrogation, he disclosed his name as Dinebari Debari @ Daniel. He was informed about his legal rights and thereafter, SI Anand Swaroop prepared and served the notice under Section 50 NDPS Act vide Ex.PW-1/G which was signed by Dinebari Debari @ Daniel. His search was conducted wherein one transparent polythene containing cream colour powder was recovered from his underwear. On testing the powder it was found to be heroin. Thereafter, he checked the weight of the polythene which weighed 1.011 kilograms. One sample of 20 grams was taken out from the recovered heroin and put into a small transparent polythene. Thereafter, the cut on the polythene containing the remaining heroin was covered with the help of brown colour tape and the sample polythene and the polythene containing the heroin were given mark S5 and E respectively. He prepared the FSL form and affixed his seal AS on it. The case property alongwith form FSL were seized vide seizure memo Ex.PW-1/H. Dinebari Debari @ Daniel was arrested vide arrest memo Ex.PW-1/K. His personal search was done vide personal search memo Ex.PW-1/L and disclosure statement was recorded vide Ex.PW-1/J. Thereafter, SI Anand Swaroop prepared the site plan vide Ex.PW-10/A. After completion of investigation, he along with Dinebari Debari @ Daniel and other team members went to PS Special Cell, Lodhi Colony, produced Dinebari Debari @ Daniel before SHO Inspector R.S. Sehrawat and also handed over the case property to him. Inspector R.S. Sehrawat counter sealed both the pullandas with the seal of RSS and thereafter deposited the case property with MHCM. On 7th November 2010, he prepared a report under Section 57 NDPS Act (Ex.PW-2/C) regarding arrest of Dinebari Debari @ Daniel and the recovery affected from his possession. The exhibits were sent to FSL. After completion of investigation, chargesheet was filed for offence punishable under Section 21 NDPS Act. Vide order dated 12th May 2011, charge was framed against the appellants for offence punishable under Section 21(c) NDPS Act.

8. Learned Counsel for Dinebari Debari @ Daniel states that the raiding team left for the spot even before having the secret information about the whereabouts of Dinebari Dibari @ Daniel. The disclosure statement of Sanjeev Kumar also does not mention anything as to when and where Dinebari Dibari @ Daniel would surface. As per the testimony of SI Anand Swaroop, Sanjeev Kumar had pointed out towards Dinebari Dibari @ Daniel pursuant to which he was arrested. No pointing out memo has been prepared in this regard. Moreover, there is no explanation as to why Dinebari Dibari @ Daniel was not arrested on the pointing out of the secret informer even though he had accompanied them to the spot. Admittedly, the search of Dinebari Dibari @ Daniel was conducted in the absence of any gazetted officer or Magistrate. He had given his refusal to notice issued under Section 50 on its carbon copy. Since the original of the notice does not bear the refusal or his signatures there is a possibility of tampering with the notice. Reliance is placed upon the decision of the Supreme Court reported as 2018 SCC Online SC 459 Arif Khan @ Agha Khan v. State of Uttarakhand. He further submits that no document with regard to the test carried out by the Field Testing Kit was prepared. The site plan is vague and inconsequential as it does not depict the exact position of the raiding team at the time when they were waiting for Dinebari Dibari @ Daniel. As per the case of the prosecution, the pullandas were sealed with the seal of AS and later with the seal of RSS before depositing the same with the malkhana but it is clear from the cross-examination of ASI Mathias Baxla that the pullandas and FSL Form did not bear the seal of RSS.

11. Inspector R.S. Sehrawat (PW-8) in his testimony stated that on 3rd November 2010 HC Anil Tyagi handed over pullandas marked A to D and four sample pullandas marked as S-1 to S-4 having seal of SS, one copy of seizure memo and FSL form. On 6th November 2010 at about 8:30 P.M., SI Anand Swaroop handed over one pullanda marked as E and one sample pullanda marked as S-5, one copy of seizure memo and FSL form.

12. ASI Mathias Baxla (PW-4) in his testimony stated that on 3rd November, 2010, Inspector R.S. Sharawat had deposited six pulandas as per the seizure memo mark A, B, C and D alongwith sample pulandas S-1 to S-4 which were sealed with the seal of SS and RSS. He had made the entry at serial no. 1645 in Register no.19 copy of which is Ex.PW-4/A. SI Anand Swaroop had deposited one bag alongwith personal search articles of Sanjeev Kumar. He had made the entry at serial no.1646 in Register no.19 copy of which is Ex.PW-4/B. On 6th November, 2010, Inspector R.S. Sharawat had deposited two pullandas sealed with the seal of AS and RSS. He had made the entry at serial no. 1647 in Register no.19 copy of which is Ex.PW-4/C. SI Anand Swaroop deposited personal search articles of Dinebari Debari @ Daniel. He had made the entry at serial no. 1648 in Register no.19 copy of which is Ex.PW-4/D. In his cross-examination he admitted that in Ex.PW-4/A and Ex.4/C there is no reference of the seal of RSS.

21. Incharge Malkhana ASI Mathia Baxla PW-4 in his testimony admitted that when he made the entry Ex.PW-4/A in the malkhana register No.19 he did not state that the pullandas and FSL form were sealed with the seal of RSS. He also admitted that even in the entries Ex.PW-4/A and Ex.PW-4/C there is no reference to the seal of RSS. Further Insp. R.S.Sehrawat SHO PS Special Cell in his examination admits that when he was handed over the pullandas, it only bore the seal of investigating officer. It did not bear the signature of the accused or any other witness except SI Anand Swaroop on which the Inspector affixed his own signatures as well and deposited the same with the incharge malkhana. He admitted that the form FSL was in open condition but was having the seal of AS. At no point of time the accused was produced before him and that he had not given to the malkhana to check the relevant entry made in the register with regard to the pullandas deposited on 6th November, 2010. Inspector Satender Sangwan in his cross examination admitted that he did not remember if any specific information was received with regard to Sanjeev Kumar who was supposed to come in the morning to deal with contraband on 3 rd November, 2010. He admitted that no handing over memo was prepared when he handed over the seal to HC Balram Singh who took back the seal after 2-3 days. Admittedly further recovery was made from Daniel within 2-3 days i.e. on 6th November, 2010. This witness even did not remember whether the tehrir was sent to the ACP concerned.