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15. In cross­examination stated that on 24.07.2012, he came to know about the present case at around 01.45 noon and reached spot at around 03.30 PM, and Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 8 of 56 not joined any independent witness either from office or at the spot. He remained present at Shankar Vihar from 06.30 to 07.30 PM, and at that time sun was setting, prepared the seizure memo at around 06.45 PM. He denied suggestion that disclosure statement of accused Tauhid was false and fabricated. No search warrant was taken for Shankar Vihar house. Accused Ashhab Khan was arrested on 26.07.2012. No independent witness were joined at the time of his arrest. Despite knowing the whereabouts of accused Ashhab Khan he did not go anywhere to apprehend him. The place of arrest i.e. parade ground was very thickly populated and accused was not resident of the said area. Two mobile phones were recovered from his possession. He came to know about the name of Sabbu Khan from the statement of Tauhid Khan two days prior to the raid at parade ground. Accused Tauhid Khan only told him about parade ground not any specific place with regard to arrival on 26.07.2012. He had not searched accused Ashhab prior to his apprehension on 26.07.2012, however SI Praveen Kumar raided the house at Khoda Colony. No public person was associated at the time of search. The mobile of accused was also on interception prior to his apprehension and they reached parade ground on the direction of Inspector Attar Singh as per interception of mobile number. He got information about parade ground from Inspector Attar Singh at around 11.00 AM and at that time he was in FSL Rohini and reached within 50 minutes from his office at Rohini. We searched the property on the same day at Rajiv Vihar, Khoda Colony on 26.07.2012. The key was recovered in his personal search memo. The chemical recovered from the said house as disclosed by accused is acetic anhydride powder however he could not conduct any test on the said substance. He also stated that he has not placed the permission given by ACP to hear the intercepted calls. On 04.08.2012, he finally retrieved those folders from computer and converted the same into different CDs.

Material exhibits

49. Ex.PW4/E is the rukka. Ex.PW9/A is the FIR. Ex.PW29/B is the site plan of place of apprehension of accused Tauhid Khan. Ex.PW9/F is the site plan of H.No. RC­209B, Rajiv Vihar from where the chemical and powder were Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 23 of 56 recovered as well as the place from where Wagon R car containing heroin was recovered. Ex.PW29/H is the site plan of H.NO. I­61, Azad Vihar, Khoda Colony, from the ground floor room from the single bed 5 kg of phenobarbital and 3 kg of heroin was recovered. Ex.PW29/D is the site plan of H.NO. 149, Shankar vihar, Khoda Colony from where 1 kg of heroin was recovered from the iron box. Ex.PW17/A, PW2/A, PW2/I are the notices u/s 50 to accused Tabrez, Tauhid Khan and Ashhab Khan. Ex.PW2/G is the seizure memo of heroin from accused Tauhid Khan. Ex.PW15/A is the seizure memo of heroin from the house pointed out by accused Tauhid Khan. Ex.PW2/B is the seizure memo of heroin from Wagon R car. Ex.PW2/O is the seizure memo of chemicals at the instance of accused Sabbu Khan. Ex.PW4/J is the seizure memo of heroin and phenobarbital from accused Ashhab Khan. Ex.PW13/C is the seizure memo of 500 gm of heroin from Mohd. Tabrez. Ex.PW2/D is the seizure memo of motorcycle from accused Tauhid. Ex.PW2/Q is the seizure memo of Wagon R car. Ex.PW29/I is the seizure memo of original papers and one affidavit by Babu Lal Chauhan of H.No. 149, Shankar Vihar, Khoda Colony by stating the said house is of accused Ashhab Khan @ Sabbu Khan however it was in his name. Ex.PW4/K is the seizure memo of utensils from H.No. 61, I Block, Azad Vihar. Ex.PW2/T is the seizure memo of driving license of accused Tauhid Khan. Ex.PW4/I is the seizure memo of key pointed out by accused Ashhab Khan at H.No. RC­209B, Rajiv Vihar from the secret cavity of a bag in a key ring containing three keys stated to be of H.No. 61, I Block, Azad Vihar. Ex.PW28/F dated 08.08.2012 of seizure memo of three CDs of voice recordings. Ex.PW4/G, Ex.PW29/J and PW29/K is the seizure memo of audio cassettes of voice samples of accused Tauhid Khan, Ashhab Khan and Tabrez. Ex.PW10/A is the seizure memo of palang (diwan) from H.No. 61, I Block, Azad Vihar from which 5 kg of phenobarbital and 3 kg of heroin was recovered. Ex.PW30/A is the seizure memo of mobile phone Nokia no. 9891815612 which is on legal interception from accused Tabrez. Ex.PW2/G is the seizure memo of mobile phone Nokia having two SIMs 9411622923 and 9560065945 from accused Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 24 of 56 Tauhid Khan. Ex.PW2/Q, PW2/S and PW2/K is the seizure memo showing no recovery from house of accused Tauhid Khan and Ashhab Khan from their villages. Ex.PW2/L, PW17/D, PW2/E are the arrest memos of accused Ashhab Khan, Mohd. Tabrez and Tauhid Khan. Ex.PW30/B, PW29/C and PW29/E are the body inspection memos of accused Mohd. Tabrez, Tauhid and Ashhab Khan. Ex.PW2/M is the personal search memo of Ashhab Khan showing recovery of driving license, two mobile phones bearing no. 9917819884 and 9917375910, one car key with remote, three keys, one purse having cash of Rs. 2200/­. Both these mobile phones stated to be kept open. Ex.PW2/F is the personal search memo of accused Tauhid Khan with recovery of 1 keyring with three keys. Ex.PW17/E is the personal search memo of accused Tabrez with recovery of mobile phone Nokia 8750576557.

61. Arguments heard. Record perused.

62. The brief sequence of facts is that one secret information that accused Tauhid will come at the T Point Murga Mandi, Ghazipur on 23.07.2012 for supplying of Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 36 of 56 heroin for going towards Anand Vihar at around 10.15 PM received by PW4 SI Praveen. After taking the requisite permission, PW4 SI Praveen alongwith raiding party and secret informer reached the spot however accused Tauhid did not turn up. Thereafter, again received secret information around 09.30 AM on 24.07.2012 that accused Tauhid will come at same place for supplying the contraband between 12­01.00 PM, then raiding party reached the spot and on the pointation of secret informer, accused was apprehended and 1 kg of heroin was recovered from the bag carried by him. Thereafter accused was taken to the house at Shankar Vihar which was of co­accused Ashhab and accused Tauhid Khan being his cousin working with accused Ashhab and on that day also, going to supply the said contraband to somebody on the directions of co­accused Ashhab and 1 kg of heroin was recovered from the house at Shankar Vihar at the instance of accused Tauhid. Thereafter, accused Ashhab was searched but was not found, however on 26.07.2012 at around 11.30 AM PW28 Inspector Attar Singh intercepted the location of accused Ashhab Khan @ Sabbu Khan and found his location of parade ground, Jama Masjid. Thereafter, PW4 SI Praveen alongwith team and accused Tauhid was informed who was with the accused in Khoda Colony area for search of accused Ashhab @ Sabbu Khan and PW29 IO SI Jitender Tiwari was also informed who was at FSL, Rohini. Both the teams reached parade ground, Jama Masjid and at the pointing out of accused Tauhid Khan, Ashhab Khan was apprehended from the parade ground however nothing was recovered from his possession thereafter, the accused Ashhab Khan during PC remand was taken to his house at Rajiv Vihar, Khoda Colony from where 5 liters of Acetic anhydride and 500 gm of powder used in processing of heroin recovered however no contraband was recovered. The accused Ashhab Khan @ Sabbu Khan however on interrogation also disclosed that one Wagon R car parked in the gali used by him is having 1 kg of heroin, which, he had put inside the car because he came to know about the arrest of accused Tauhid Khan, thereafter, 1kg of heroin was recovered from the said Wagon R car.

83. On overall appreciation, the prosecution case on the manner of apprehension of accused Tabrez also do not appear credible and cannot be relied upon therefore, the subsequent recoveries also become doubtful.

Circumstance of search and recovery of contraband from Shankar Vihar house at the instance of accused Tauhid Khan.

84. As per prosecution case, accused was taken to Shankar Vihar house by PW29 IO alongwith his team and from the recovered keys of said house from the personal search of accused Tauhid, it was opened and contraband was recovered. The said house is found to be in the name of one Babu Lal and the said Babu Lal purchased in his name from the amount of accused Ashhab Khan and accused Ashhab Khan and Tauhid Khan used this house for illegal activities. However none of the neighbours or public witnesses were joined at the time of recovery of contraband at the instance of accused Tauhid Khan from the said house. PW29 stated that after the proceedings of recovery, he straightaway went with the team to PS Special Cell whereas PW4 stated that after search PW29 Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 46 of 56 alongwith accused and team came back to the spot i.e. T Point Ghazipur. These all circumstances alongwith the manner of apprehension create doubt over the recovery from the said house. PW4 in his cross­examination has given a very sketchy answers to proceedings conducted at the spot after apprehension of accused. He stated that he had left the spot at around 06.00 PM alongwith HC Suresh and all other raiding team party members went to the house of accused Tauhid Khan. He also stated that from the telephonic conversation prior to 23.07.2012 they have already known about the residential locations of accused persons. Accused Jitender Tiwari left the spot at 06.00 PM and returned back at around 07.30 PM therefore suggesting that he remained there even after 06.00 PM which is in contradiction to the version of IO that they had reached from Khoda Colony straight to Special Cell office. This witness also stated that on 26.07.2012 the accused Tauhid Khan was taken to 3­4 houses for search as he told that Ashhab can come to any of the four houses however could not tell any particulars of those houses. The houses in the present case searched either at the instance of Tauhid or Ashhab are at Khoda Colony therefore it can be inferred that those houses were already raided even prior to the apprehension of Ashhab Khan. In overall circumstances, the recovery of 1 kg of heroin from house at Shankar Vihar in the manner projected appears suspect. Circumstance of recovery of contraband or other chemicals at the instance of accused Ashhab Khan @ Sabbu Khan from Rajiv Vihar and Azad Vihar house of Khoda Colony