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TMI Blog2020 (9) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... ergo simple imprisonment for a further period of six months for committing an offence punishable under section 22(c) of the NDPS Act. The appellant was sentenced to undergo rigorous imprisonment for a period of six months with a fine of Rs. 10,000/- and in default of payment of fine to undergo simple imprisonment for a further period of one month for committing an offence punishable under Section 21(b) of the NDPS Act. Both the sentences were to run concurrently. 3. The case of the prosecution is that secret information was received on 19.11.2013 that the appellant-a Nigerian national engaged in dealing in drugs-would come near ISBT to deliver the drugs. The information was recorded and after authorisation from a competent officer, a raiding team was constituted. The raiding team along with the informer took positions near the ISBT terminal. The appellant was observed walking from the direction of ISBT; the secret informer identified him; and he was apprehended at 07:55 pm on 19.11.2013. The appellant was served a notice under Section 50 of the NDPS Act and was, thereafter, searched. Four hundred grams of Methamphetamine was found concealed in a metallic box recovered from a bag c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spector Akash Rawat at 6:45 pm. After satisfying himself regarding the information, Inspector Rawat informed ACP Zile Singh about the secret information. ACP directed Inspector Rawat to take the necessary steps. He in turn directed PW 12 to do so. PW12 deposed that he lodged DD No. 17 with respect to the secret information at 6:55 pm (Ex. PW 2/C). Copy of the same was given to Inspector Rawat for onward transmission to ACP. Thereafter, he called HC Bharat, HC Sunil Dutt and Ct Sunny Kumar and informed them regarding the facts of the secret information. He constituted a raiding party and made departure entry No. 18 (Ex. PW12/A). He stated that all the police officials along with the secret informer left their office at around 7:05 pm in a private vehicle-a blue coloured Wagon R bearing the registration no. DL-8CP-3419. He deposed that he had also collected the IO Kit bag, field testing kit and an electronic weighing machine. He stated that they reached the spot near ISBT flyover at about 7:35 pm via Pushta Road, Shanti Van, Jamuna Bazar, ISBT. 8. PW 12 deposed that he requested four-five public persons after coming out from the office, at Jamuna Bazaar and at ISBT, but no one was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arate cloth parcel and was marked as C. The other parts of the original box were kept in the same green colour cloth bag and the same was sealed in a cloth parcel and marked as Mark D. 11. PW12 deposed that thereafter he conducted a cursory search of the accused and from the rear right cross pocket of his lower garment, one white coloured transparent polythene containing some powder was recovered. On checking the powder on the field testing kit, it was found to be cocaine. It weighed ten grams. He stated that he took out two samples of two grams each and kept the samples in two separate cloth parcels, which were labeled as Mark E and F. The remaining six grams of cocaine was kept in the same transparent polythene and was put in a cloth parcel, which was marked as Mark G. He testified that he affixed his seal of 5APS NB Delhi on all the pullandas (cloth parcels) and prepared the FSL forms on the spot and put his seal on the FSL form as well. Thereafter, he handed the seal to HC Sunil Dutt. He stated that the case property was taken into possession vide seizure memo (Ex. PW1/B). Thereafter, he prepared the tehrir (Ex. PW1/B) and gave the same to HC Bharat for the registration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form and carbon copy of the seizure memo to the SHO. He testified that SHO Inspector Virender Singh called MHC (M) inside his office with instructions to bring Register no. 19. He also affixed his seal of 'VSS' on the pullandas and put his signatures against the relevant entries. PW8 stated that, thereafter, he collected the computerized copy of the FIR and gave the FIR to SI Sumit Malik. SI Sumit Malik, then proceeded to the spot in the same vehicle leaving PW8 behind. He deposed that about 9:15 am, on the next day, SI Sumit Malik recorded his statement at the Narcotics Cell Office. 16. In his cross examination, PW8 stated that he was not carrying a mobile phone with him during the raid. He also did not notice if any raiding party member was carrying a mobile phone or not. He stated that he had no idea if any government phone had been issued in favour of SI Rajnikant (PW12). He also deposed that at the time of leaving for the raid, he had left his mobile in the narcotic cell in a switched off condition. 17. HC Sunil Dutt, who was also a member of the raiding party, was examined as PW10. His testimony is also consistent with the testimony of PW12 and PW8 except that he di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o ACP Zile Singh. He deposed that on 20.11.2013, at about 7:30 am, SI Sumit Kumar produced the accused before him and thereafter, his statement was recorded by SI Sumit Kumar. He deposed that on 20.11.2013, SI Rajnikant placed before him the report under Section 57 regarding seizure of the contraband (Ex. PW 2/A) and SI Sumit Kumar furnished his report under Section 57 regarding the arrest of the accused Samuel (Ex. PW 2/B). He deposed that he forwarded both the reports to the ACP. He deposed that he had enquired about the source and the destination of the contraband from the accused in both English and Hindi. 21. HC Maan Singh was examined as PW2. He deposed that on 19.11.2013, he received two reports under Section 57 of the NDPS Act, duly signed by SI Rajnikant Sharma, regarding the seizure of four hundred grams of methamphetamine and ten grams of cocaine vide Diary No. 3059. He stated that he had received another report regarding the arrest of the appellant made by SI Sumit Malik (PW6) vide Diary No. 3060. The reports had been duly forwarded by Inspector Akash Rawat of N & CP Crime. He stated that he put up both the reports before ACP Sh. Zile Singh. He proved both the reports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/13. 25. In his cross examination, PW5 stated that it was correct that no time was mentioned in the Register no. 19 in entry 2011 and 2012. He affirmed that it is correct that if parcels are deposited before 12 midnight, the entries of the previous date are made and after 12 midnight, the entries are to be mentioned in the next dates in the Register No. 19. 26. Ct Shani Kumar was examined as PW3 and had deposited the samples in FSL Rohini. He testified that on 22.11.2013, he had deposited Samples A and E, which were sealed with seal of 5APS NB Delhi and VSS, along with FSL form bearing the same seal impression and RC bearing no. 374/21/13 dated 22.11.2013, with the FSL Rohini. In his cross examination, he denied the suggestion that he had tampered with the case property when the same was in his possession. 27. Sh. Sanjeet Kumar, JJA, deposed as PW9. He brought and proved the judicial file of the accused in FIR No. 505/11, under Sections 323/325/341 of the IPC and Section 14 of the Foreigners Act, 1946, registered with PS Uttam Nagar. He testified that the accused was acquitted of the offences under IPC but had been convicted for offence punishable under Section 14 of the Foreig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated by the fact that the appellant was allegedly apprehended at 7:55 pm, whereas the arrest memo states that he was arrested at 04:30 am. He submitted that it could not be believed that the officials were conducting the raid proceedings till 4:30 am. PW12 had stated in his cross examination that the entire proceedings were conducted on the bonnet of the car and they had not taken any break for dinner, food, or otherwise. He submitted that the same was not necessary and could not be believed. Further the reply dated 19.04.2016 of the Public Information Officer to the RTI application dated 21.03.2016 filed by the appellant also confirmed that no foreigner was found arrested during 19.11.2013 & 20.11.2013 in the area of ISBT, Delhi. 33. It is further contended that the claim of the Investigating officer and the recovery witness that they had left the police station along with the field testing kit and the electronic weighing machine is also unsubstantiated. The appellant contends that the malkhana register recording the withdrawal of such articles prior to the departure of the raiding team was not produced. Further, the field testing kit or electronic weighing machine was also not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitute a raiding team and proceed with the same. PW12 had also testified that he had recorded the secret information at about 06:55 pm vide DD No. 17 (Ex. PW2/C). He had further testified that thereafter, he called HC Bharat, HC Sunil Dutt and Ct. Shani Kumar and informed them regarding the secret information. The said persons were included in the raiding party constituted to act on the secret information. The said raiding team departed from their station at about 7.05 PM and their departure was recorded vide DD Entry No. 18 (Ex. PW12/A). He testified that the police officials (raiding team) along with the secret informer had left the station at 07:05 pm in a private vehicle (bearing No. DL 8CP 3419). He had also collected the IO kit, field testing kit and electronic weighing machine. He testified that the team had reached near ISBT Flyover at about 07:35 pm travelling via Pushta Road, Shanti Van and Jamuna Bazaar. After reaching the spot, they had parked their vehicle below the flyover and the raiding team had taken their positions. He testified that at about 07:45 pm, one Nigerian was found walking from the direction of the ISBT. The secret informer pointed towards the accused i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the FSL Form. The seal was handed over to HC Sunil Dutt who was a part of the raiding team. He had thereafter prepared the tehrir (Ex. PW1/B). The same was handed over to HC Bharat with the direction to hand over the same to the Duty Officer for registration of the FIR. He had also handed over the sealed parcels, FSL Form and carbon copy of the seizure memo. HC Bharat left the spot with the said articles at about 11:10 pm. HC Bharat (PW8) also testified that he left the spot at 11:10 pm and reached PS Crime Branch at about 12:05 am in the private vehicle. He further testified that he handed over the original tehrir to the Duty Officer and he handed over the sealed parcels, FSL Form and the carbon copy of the seizure memo to the SHO (Inspector Virender Singh). The SHO had affixed his seal on the said parcels and had produced the case property before MHC(M), who made an entry in Register No. 19. PW8 testified that he collected the computerized copy of the FIR and the original tehrir from the Duty Officer and proceeded to the Narcotic Cell, Shakar Pur at about 02:00 am. He handed over the same to SI Sumit Malik, who proceeded to the spot in the same vehicle. 41. PW12 had testified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clude any witnesses from the public or any other independent witnesses. However, the testimony of police witnesses cannot be ignored or doubted on this ground. In absence of evidence of any public or independent witness, it is essential that the testimony of the official witnesses should be subjected to greater scrutiny. In the case of Kalpnath Rai Vs. State: (1998) AIR SC 201, the Supreme Court observed as under: "There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent witness was examined." 45. Thus in absence of testimonies of any independent witness, even minor inconsistencies in the evidence of the official witnesses may be considered as material. In the present case, this Court has carefully examined the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Register No. 19 and had made the necessary entries. The relevant Malkhana Register was produced (Ex. PW4/A) and the relevant entries conform with the testimony of PW4. MHC (M) HC Jag Narain, was also examined as PW5 and his testimony is consistent with that of PW4. He had produced the original Register no. 19; the same was seen by the Court and a photocopy of it (Ex. PW5/A) was retained on the record. 48. PW5 had further testified that on 22.11.2013, two sealed parcels were sent to FSL, Rohini through Ct. Shanni vide Road Certificate-RC No. 374/21/13. The original RC Register was seen by the Court and the photocopy of the relevant entry was placed on record as Ex. PW5/C. The original exhibits were deposited with the FSL lab and Ct. Shani had returned back and handed over the receipt (Ex. PW5/D). 49. Ex. PW5/D indicates that FSL, Rohini had received two sealed cloth parcels along with the FSL Form, copy of the FIR, seizure memo and sample seal. However, the FSL Form that was received by FSL, Rohini has not been placed on record. It was contended that there is no confirmation by FSL, Rohini that the two sealed cloth parcels that were received bore the seals of 5APS NB Delhi an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand of the accused and on checking the bag it was found that it contained one green and black coloured carton box on which Executive Golf Set was written. He had opened the said box and found that the same contained a silver coloured metallic box. He testified that he, thereafter, opened the box with the help of a hook and it was found containing two balls, three section golf clubs and one putting hole along with the case inside the metal box. He testified that there was black coloured foam pasted inside the box. He had removed the foam and it was found that it contained two transparent polythenes; one on each side of the metal box. The two transparent polythenes were tied with a brown tape. PW12 testified that he had taken out the contents of both the transparent polythenes and kept the same in one transparent polythene. He had, thereafter, checked the white crystals on the field testing kit and found the same to be methamphetamine. He stated that he had weighed the substance on the electronic weighing machine and the same weighed four hundred grams. He took out two samples of five grams each and kept them in two separate transparent polythenes tied with a rubber band and these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etamine. IO had taken out two samples of 5 gm each, kept the same in two separate transparent polythene, tied with rubber band and then these polythenes were kept in two separate parcels and were given mark A and B." [italics for emphasis] 57. Ms. Dhalla, learned APP contended that the contents of the two polythenes were mixed only after the same were tested on a field testing kit. She referred to the testimony of HC Sunil Dutt (PW10) in this regard. He had testified as under: "There was black colour foam pasting inside the box metallic box. IO removed the form and it was found containing two transparent polythene having white crystals. These two transparent polythenes were tied with brown tape. IO checked those white crystals on the field testing kit and it came to be methamphetamine. The white crystals from both the plastic polythenes were taken out and then it was kept in a separate polythenes and then it was weighed on electronic weighing machine and it came to be 400 gm of methamphetamine. IO had taken out two samples of 5 gm each, kept the same in two separate transparent polythene, tied with rubber band and then these polythenes were kept in two separate parcels and were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If the contents have been properly mixed to a uniform consistency, then the analysis of the sample drawn from the said mixture would reveal the proportion of the offending substance in the mixture. The said proportion would indicate the exact amount of the illicit substance in the said mixture. Thus, it would make no difference if the proportion of the offending drug in found in separate packets was different prior to the said contents being mixed. This is so because in any event, the proportion of the neutral substance would be ignored. 62. As an illustration if two packets are recovered from an accused-one packet containing hundred grams of a mixture containing 50% cocaine and the other containing white talc powder (a neutral substance)-and are mixed; the resultant mixture would contain 25% Cocaine. If the contents were mixed to a uniform consistency, analysis of a small sample drawn from the mixture would also indicate presence of cocaine to the extent of 25%. The same would establish that the accused possessed 50 grams of Cocaine and he would be prosecuted accordingly. 63. However, once it is held that the quantity of the entire mixture including the neutral substances have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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