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1. The prosecution case in brief is that on 04.10.2018 at about 1.00 p.m, a secret informer came to the office of Narcotics Cell, Crime Branch, Old Kotwali Building Daryaganj and passed on information to HC Ravinder Khokar that Jitender r/o 32 Block FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.1 of 46 Trilokpuri used to supply heroin in Delhi and that he would come in between 3.00 p.m to 4.00 p.m to his house with heroin and if nakabandi is made near his house, he can be apprehended with heroin. HC Ravinder Khokhar produced the secret informer before ASI Dushyant and informed him about the secret information. ASI Dushyant made enquiries from the secret informer and after satisfying himself, he produced him before Insp. Brijpal Singh at about 1.30 p.m. Inspector Brijpal after satisfying himself informed ACP Narcotics Sh. RK Ojha who directed for conducting the raid. ASI Dushyant lodged DD no.11 at about 2.00 p.m and sent the copy of the same to Insp. Brijpal in compliance of section 42 of NDPS Act. Insp. Brijpal forwarded the said DD to senior officers. As per directions of ACP, ASI Dushyant prepared a raiding team consisting of HC Ravinder Khokar, HC Ravinder Malik and Ct. Pawan and all the members of the raiding party including secret informer after taking IO bag, field testing kit and electronic weighing scale left the PS vide DD no.12 in private car bearing no. DL 3CCB 2362 being driven by Ct. Pawan and reached at 32 Block in a vacant place at about 3.00 p.m. On the way, at Akshardham bus stand, Mayur Vihar Metro bus stand, IO requested 4­4 passersby to join the raiding party but they all refused and went away disclosing their genuine reasons. At 32 Block, Trilokpuri, ASI Dushyant again requested 3­4 passersby to join the raiding team but they refused. The car was parked at the distance of 10­15 meters at the corner of road. All the members of the raiding team were briefed. Raiding team members FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.2 of 46 were deputed at the spot and they started waiting for the accused. It is further the case of the prosecution that at about 3.25 p.m, one person came on foot from the side of Chilla Village towards 32 Block Trilokpuri through service road. The secret informer identified him as Jitender and thereafter, he left the spot. As the said person reached 32 Block near park at vacant space, he was apprehended at about 3.30 p.m with the help of staff and on enquiry, his name came to be known as Jitender Kumar. Ct. Pawan was directed to bring the vehicle at the spot. ASI Dushyant introduced himself and the raiding team members to the accused. He was also apprised about the secret information that he is involved in supply of heroin and that he had come with heroin and there is possibility of recovery of heroin from him and that his search is to be conducted. He was also apprised about his legal rights that he can be searched in the presence of Gazetted Officer/Magistrate but he refused for the same. Accused was also given an option to search the police vehicle as well as raiding team members but he refused. Thereafter, ASI Dushyant prepared a notice u/s 50 NDPS Act and original copy was given to the accused and he was also read over the said notice. The accused understood the same and mentioned his refusal on the notice. ASI Dushyant searched the accused. From the right hand of accused, one weighty polythene was recovered. From the said polythene, another transparent polythene containing brownish powder was recovered. The brownish powder was checked on field testing kit and it was found to be heroin. The said polythene FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.3 of 46 alongwith powder was weighed and it was found to be 500 grams. Out of the same, two samples of 5 grams each were drawn and kept in small transparent polythene bags and the same were converted into pullandas and given Mark A and B and remaining heroin was also converted into pullanda and it was given Mark C. Form FSL was filled at the spot. All the pullandas and form FSL were sealed with the seal of 3CPS/NB DELLHI. All the pullandas and FSL form were seized. Seal after use was handed over to HC Ravinder Khokar. Thereafter, ASI Dushyant prepared a tehrir and handed over the same to Ct. Pawan alongwith three pullandas, form FSL and seizure memo with directions to hand over the rukka to duty officer and other documents/pullandas to SHO. Duty officer recorded the FIR and SHO conducted the proceedings u/s 55 NDPS Act. He mentioned the FIR number on the pullandas after enquiry from the duty officer. SHO called the MHCM and handed over the pullandas to him after sealing with his seal of SS. After registration of the FIR, further investigation was entrusted to ASI Sanjay Tyagi who reached at the spot where ASI Dushyant handed over the custody of accused alongwith documents to him. ASI Sanjay Tyagi prepared the site plan. He recorded the statements of the witnesses. Accused was arrested. His personal search was conducted. In the personal search of accused notice u/s 50 NDPS Act, cash Rs.430/­, Adhar Card and RC of vehicle were recovered. Accused was interrogated and his disclosure statement was recorded. Accused disclosed that the source of heroin is Virender @ Pichka. Accused FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.4 of 46 was brought to Narcotics Cell where Insp. Brijpal Singh made enquiries from the accused and found his arrest satisfactory. Jamatalashi was deposited in the malkhana through MHCM. Statement of SHO/Satender Sangwan was recorded. ASI Sanjay Tyagi prepared the report u/s 57 NDPS Act and sent the same to Insp. Brijpal who forwarded the same to senior officers. On 08.10.2018, exhibits were sent to FSL through Ct. Pankaj. Accused Virender @ Pichka was searched but he could not be traced. He was declared Proclaimed Offender vide order dated 31.01.2019. Thereafter, on 04.02.2019, accused Virender surrendered before the Court. He was arrested in this case and one day PC remand was obtained. He was produced before Insp. Rajnikant who made enquiries from him. Section 174­A IPC was added. Another source of supply namely Javed could not be apprehended as his complete address was not available. After completion of the investigation and pending receipt of FSL result, charge­sheet was prepared and filed in the Court. Later FSL result was received which confirmed that the recovered substance was diacetylmorphine.

16. Ld. Counsel for accused argued that the case of the prosecution is false and fabricated. The accused has been falsely implicated after lifting the accused from his house. Ld. Counsel FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.11 of 46 argued that there are material contradictions in the testimonies of raiding team members. Ld. Counsel has drawn the attention of the Court on the testimony of PW1, PW2 and PW3. It has been stated that PW1 stated that he, HC Ravinder and HC Ravinder were called by ASI Dushyant in his office at about 1.45 p.m but in cross examination, he stated that they all were present in their office in the same room while PW2 HC Ravinder stated that he took the informer before ASI Dushyant and informed him about the information. It is further stated that PW2 and PW8 have stated that the secret informer was not produced before ACP but PW3 stated that he was produced before ACP. As per PW1 nakabandi was held at the instance of secret informer but PW2 stated that place of nakabandi told by the secret informer and he had also told that at the particular place accused would be apprehended. PW3 stated that the secret informer had not disclosed in their office that the accused would come on the road on which accused was apprehended subsequently, they held nakabandi while PW9 stated that the informer had not disclosed the specific route on which the suspect is likely to come. As regards to DD no.11, it has been submitted that PW1 & PW2 have deposed that the accused has procured heroin from Salman but this fact is not mentioned in the DD. He further argued that PW2 had not disclosed the parentage and residence address of accused Salman. PW3 has not disclosed as to when accused had taken the contraband from Salman or about the price paid by him to Salman. Ld.Counsel further stated that a number of public witnesses were available at FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.12 of 46 the spot but the investigating officer has failed to join any public witness in this case. Ld. Counsel has further drawn the attention of the court on the testimony of PW1, PW2 and PW3 and stated that PW2 has specifically stated that no entry was made with regard to issuance of IO bag and electronic weighing machine. With regard to site plan, Ld. Counsel has drawn the attention on the testimonies of PW1, PW2 and PW3 and stated that they have made contradictory statement in this respect. It is also stated that the prosecution has failed to comply the provisions of Section 50 NDPS Act in this case. It is stated that PW1 could not state as to whether the accused had put his reply on the original notice or the carbon copy of the notice. Accused was not offered the search of the field testing kit and electronic weighing machine as the same has been admitted by PW2. Even PW3 has also admitted that he had not offered the search of IO bag, field testing kit and electronic weighing machine to the accused. Ld. Counsel further argued that PW1 stated that FSL form was of two pages but he does not know if it was hand written or typed and how many columns were there. PW2 stated that FSL form was in two sheets and it was a printed proforma. He cannot tell the number of columns while PW3 stated that he does not remember whether the FSL form was in one sheet or two sheets but he filled up the columns. PW12 stated that he does not remember the number of pages in which the FSL form was written. It is stated by the Ld. Counsel that there is a contradictory version in respect of FSL form and that the benefit of the same goes to the accused. Ld. Counsel FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.13 of 46 further argued that there is also a contradictory version with regard to the arrest memo as PW4 has deposed that wife of the accused came at the spot and he obtained her signatures in column no.9 of arrest memo but PW2 and PW3 stated that no family member had come to the spot and PW1 stated that he does not know if any family member of the accused had came to the spot. The seal bearing impression 3CPS/NB DELHI was in the possession of ASI Dushyant since 06.10.2017 and it was not issued to him on the date of recovery effected in the present case. Ld.Counsel further argued that PW5 Ct Pankaj had taken the FSL form, carbon copy of RC and FIR to FSL but he admitted that as per Mark PW5/B, sample seal and form FSL are different articles and that fact of depositing the copy of FIR, DD number, seizure memo, sample seal is not mentioned. PW7 could not tell the time when the entries were made in diary register regarding receipt of documents and returning of the same. Ld. Counsel further drawn the attention on the statement of PW8 ACP RK Ojha who stated that the copy of DD no.11 was produced before him while PW3 stated that he produced the said DD before Insp. Brijpal who forwarded the same to Senior Officer. PW11 ASI Jag Narayan admitted that there is entry no.4288­A in register no.19 and that there is no other entry with alphabet and there is also overwriting at point 'X' which suggests that there is some manipulation. PW13 ASI Sanjay Tyagi admitted that there is no mention regarding preparation of site plan, personal search of the accused and about disclosure statement in his report u/s 57 NDPS FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.14 of 46 Act. PW13 stated that he had not handed over the copy of seizure memo and notice u/s 50 NDPS Act to anyone and both remained with him till filing the charge­sheet. Ld.Counsel has also pointed out the contradictions regarding the notice u/s 50 NDPS Act. PW13 has stated that he does not remember whether it was written on one side or both the sides and he does not remember whether the accused had put the date below his signatures but again said the accused has not put the date. It is submitted that no public witness has been joined in this case by the IO though available at the spot. No particulars of said persons were noted down. It is submitted that there is no compliance of section 42/50 of NDPS Act in this case. IO did not produce the accused before Gazetted officer. In none of the cases, they produce the accused before Gazetted Officer. Ld. Counsel submits that the accused has been lifted from his house and contraband has been falsely planted upon him. It is requested that the accused Jitender may be acquitted. It is further argued that co­ accused Virender @Pichka was not served properly and thus proceedings u/s 82 Cr.P.C were issued. It is further submitted that the proceedings were not conducted appropriately and thus, the accused may be acquitted.

17. PW1 Ct. Pawan, PW2 HC Ravinder Khokhar and PW3 ASI Dushyant are the three witnesses of recovery on which the prosecution case mainly rests. PW13 ASI Sanjay Tyagi is the Second IO. PW2 HC Ravinder Khokhar received the secret FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.15 of 46 information about coming of accused Jitender to his house at 32 Block Trilokpuri in between 3 to 4 p.m with heroin and he produced the secret informer before PW3 ASI Dushyant who recorded the information in DD no. 11 Ex.PW3/A. ASI Dushyant produced the secret informer before PW9 Insp. Birjpal who after satisfying himself passed on the information to PW8 ACP R.K.Ojha and then PW8 directed to conduct the raid. PW3 ASI Dushyant submitted the copy of DD no.11 to Insp. Brijpal who forwarded the same to ACP. PW3 deposed that on 04.10.2018, at about 1.00 p.m, one secret informer came and informed HC Ravinder Khokar that one person namely Jitender who used to supply heroin in Delhi, would come to his house in between 3 pm to 4 pm after procuring heroin from Salman and if raided, can be caught. HC Ravinder Khokar produced the said informer before PW3 and on being satisfied with the said information, PW3 produced the said informer before Insp. Brijpal and after being satisfied, Insp. Brijpal passed on the said information in the office of ACP, R.K. Ojha, Narcotic Cell who directed to take necessary action. PW3 recorded the said information vide DD No.11, copy of which is Ex.PW3/A in compliance of section 42 NDPS Act and produced the same before Insp.Brijpal who forwarded the same to Sr. Officer. Thereafter, PW3 prepared a raiding party comprising of PW3, HC Ravinder Khokar, Ct. Pawan and HC Ravinder Malik and they, at about 2.30 pm alongwith secret informer & after collecting IO bag, field testing kit and electronic weighing scale, left the office in a private car no.DL3C CB 2362 FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.16 of 46 being driven by Ct. Pawan. PW3 lodged DD No.12 and via Shanti Van Chowk, Geeta Colony Flyover, Akshardham Metro Station, Mayur Vihar Metro Station and via Chilla Village, they reached 32 Block Trilokpuri at about 3.20 pm. On the way, PW3 requested 4 public persons each at Akshardham bus stand and Mayur Vihar Bus stand to join the raiding team after revealing them about secret information but none agreed and left the place without giving their names and addresses. PW3 briefed all the members of raiding team at the spot in detail. The car was parked about 10­12 meters ahead of the park and members took the position at the gate of park. PW3 requested public persons at the spot also to join the proceedings/raiding team but none agreed and left the spot without giving their names and addresses. He further deposed that at about 3.25 pm, the secret informer pointed out towards the person who was coming from the side of Chilla Village and told that the said person was Jitender about whom he had given information. After pointing out, the secret informer had left the spot and the said person was apprehended with the help of staff at about 3.30 pm. PW3 interrogated him who disclosed his name as Jitender. Ct. Pawan along with the car was called and accused was apprised about the information that he might be in possession of heroin and in this regard his search was to be conducted. Accused was informed about his legal rights that his search can be taken in the presence of Gazetted Officer or Magistrate or that he can take search of any member of raiding team and of the car or that he can be produced FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.17 of 46 before the Gazetted Officer in this regard but the accused refused for the same. PW3 prepared notice u/s 50 NDPS Act and served the same to accused, carbon copy of the notice is Ex.PW1/A. Accused recorded his refusal in his handwriting on the back side of the notice which is Ex.PW2/A. PW3 searched accused Jitender Kumar and the black colour polythene was taken from his right hand and it was checked and was found containing one transparent polythene containing bhura colour powder. Some powder was taken out from the said transparent polythene after removing the rubber band and it was tested on field testing kit and was found to be heroin. PW3 weighed the recovered heroin along with transparent polythene prior to taking samples and its weight was found to be 500 grams. PW3 drew two samples of 5 grams each from the recovered heroin and the same were kept in two small transparent polythene and the same were given Mark A and B and were converted into cloth parcels. Remaining 490 grams heroin was kept in the said transparent polythene and it was converted into cloth parcel and was Marked C. All the parcels were sealed with the seal of 3 CPS/NB DELHI and the seal after use was handed over to HC Ravinder Khokar. PW3 filled up Form FSL at the spot and it was also affixed with the same seal. All the parcels were taken into possession vide seizure memo Ex.PW1/B. PW3 prepared a tehrir Ex.PW3/B and it was handed over to Ct. Pawan along with all the sealed parcels, FSL form and carbon copy of seizure memo with directions to hand over the rukka to Duty Officer and the parcels etc to the SHO. He further deposed FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.18 of 46 that at about 12.15 am midnight, ASI Sanjay Tyagi came at the spot to whom he handed over the custody of accused Jitender. ASI Sanjay Tyagi prepared site plan Ex.PW3/C. He interrogated and arrested the accused Jitender vide arrest memo Ex.PW2/B and conducted his personal search vide memo Ex.PW2/C. In his personal search, original notice u/s 50 NDPS Act, cash Rs.430/­, Adhaar card and RC of two wheeler, were recovered. His disclosure statement Ex.PW2/D was also recorded. Thereafter, they left the spot and accused Jitender was produced before the Insp. Brijpal who satisfied himself about the arrest of accused. He further deposed that on 08.10.2018, HC Ravinder Khokar returned the seal to him vide handing over memo Ex.PW2/E. PW13 ASI Sanjay Tyagi produced report u/s 57 NDPS Act before Insp. Brijpal which is Ex.PW7/C. On 08.10.2018 case property was got deposited in FSL, Rohini through Ct. Pankaj for chemical analysis. PW13 further deposed that accused Virender @ Pichka surrendered and he was arrested vide memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D. His disclosure statement is Ex.PW1/E. PW13 obtained the PC remand of accused Virender and he disclosed the name of source of contraband as Javed but Javed could not be traced. PW13 collected the FSL result which is Ex.PW13/B. Notice u/s 50 recovered in the personal search of accused is Ex.PX.

34. Ld. Counsel submitted that the accused was not offered the search of the field testing kit and electronic weighing machine to the accused. He submitted that the contraband has been falsely planted upon the accused. In the present case, there is recovery of 500 grams heroin from the accused. The recovery is in the nature of FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.35 of 46 commercial quantity. It is highly improbable for the police to falsely plant such a huge quantity upon the accused. PW3 ASI Dushyant has stated that accused was informed about his legal rights that his search can be taken in the presence of Gazetted officer or Magistrate, if he so desired or that he can take search of any member of the raiding team and of the car or that he can be produced before the Gazetted Officer but accused has refused. Though PW3 has stated in cross examination that he had not offered the search of IO bag, field testing kit and electronic machine to the accused but offering the search of the above is of no consequence since PW3 has clearly stated that the accused was offered to take search of any member of the raiding team and of the car of the police. Offering search of members of the raiding team as well as vehicle of the police was sufficient compliance in this case. Furthermore, as already discussed provisions of Section 50 NDPS Act does not apply in the present case as recovery was effected from a polythene held by the accused in his hand.