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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.

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.

22.2 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.

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.