Back
2014 Supreme(Del) 792
High Court of Delhi
THE HONOURABLE MR. JUSTICE V.K. JAIN
Ashraf Khan
Versus
State of Delhi
CRL. A. No. 264 of 2013
Decided On : 11-03-2014
Advocate Appeared:
For the Appellant:Aishwarya Rao, Advocate.
For the Respondent: Feroz Khan Ghazi, APP.
The court emphasized the importance of compliance with the legal requirements of the NDPS Act, including informing the accused of their legal rights and ensuring the prompt dispatch of samples to the laboratory to eliminate the possibility of tampering.
Headnote:
NDPS Act - Arrest and Seizure - Section 21(c), Section 50 - Section 52(3), Section 57 - The court upheld the conviction of the appellant under Section 21(c) of the NDPS Act, finding no ground to interfere with the quantity of heroin recovered from him being a commercial quantity. The court also directed that in the event of failure to pay the fine, the appellant shall undergo SI for three months as against two years awarded by the Trial Court.
Fact of the Case:
The appellant was apprehended based on secret information that he was supplying heroin in Delhi. He was informed of his legal right to be searched in the presence of a Gazetted officer or a Magistrate but declined. Heroin was recovered from him, and he pleaded not guilty to the charge under Section 21(c) of NDPS Act.
Finding of the Court:
The court upheld the appellant's conviction under Section 21(c) of the NDPS Act, finding no ground to interfere with the quantity of heroin recovered from him being a commercial quantity. The court also directed that in the event of failure to pay the fine, the appellant shall undergo SI for three months as against two years awarded by the Trial Court.
Issues: The issues included the validity of the arrest and seizure, the notice under Section 50 of NDPS Act, acknowledgment of receipt of FSL form, and the delay in sending the samples to FSL.
Ratio Decidendi: The court found that the police officer duly complied with the requirement of Section 50 of the NDPS Act by informing the appellant of his legal right. The court also noted that there was due compliance with the requirements of Section 52(3) and Section 57 of the NDPS Act. The court held that the time lag between seizure and the date on which the sample was sent to the laboratory was insignificant, given the evidence presented by the prosecution.
Final Decision: The court upheld the appellant's conviction under Section 21(c) of the NDPS Act and directed that in the event of failure to pay the fine, the appellant shall undergo SI for three months as against two years awarded by the Trial Court.
V.K. Jain, J. (Oral)
1. On 05.05.2011, at about 8.45 am, SI Satyavan of Narcotics Cell received a secret information that a person, namely Ashraf Khan, a resident of Bareilly, who was engaged in a business of supplying heroin in Delhi, would come near Sulabh Sauchalay, Metro Station Rohini between 10.30 am to 11.30 am to supply heroin. The secret informer was produced before Inspector Vivek Pathak of the Narcotic Cell and the concerned ACP Shri Bir Singh was informed on telephone at his resident. The ACP directed a raiding party to be organized, whereupon the information was recorded by way of a DD entry and the raiding party headed by Sub-Inspector Satyavan reached near East Metro Station Rohini in a private car. On the way, they requested some passerby to join the raiding party, but no one agreed to join the said party. At about 10.30 am, the appellant Ashraf Khan came near Sulabh Sauchalay and stood waiting for someone to come. After 5-6 minutes, Ashraf Khan started moving towards the Metro Station, whereupon he was apprehended and was informed that the police team had a secret information that he was supplying heroin in Delhi and wanted to search him. He was informed that it was his legal right to be searched in the presence of a Gazetted officer or a Magistrate and he could also search the police team and the vehicle in which the said team had come. However, the appellant declined to be searched in the presence of a Magistrate or a Gazetted officer. Thereupon, he was searched by the Sub-Inspector and 275 gram of heroin, which had kept in a polythene bag, was recovered from the right side pocket of his pant. Two samples of 5 gram each were drawn from the substance using an electronic balance for the purpose. The samples as well as residual substance were sealed with the seal of 7B PS NB Delhi after preparing separate parcels and the seal after use was given to Head Constable Om Prakash. FSL form was also filled on the spot and the aforesaid seal was also affixed on the form. The samples, residual substance as well as the FSL form were handed over to Inspector Kuldeep Singh, after reaching the office of Crime Branch. The appellant was also produced before Inspector Vivek Pathak of Narcotic Cell. The seizure reports were sent to the senior officers through Inspector Vivek Pathak. When the sample was examined in FSL, it was found to contain Diacetylmorphine, Phenobarbital, Paracetamol and Caffeine with percentage of Diacetylmorphine as 15.3.
2. Since the appellant pleaded not guilty to the charge under Section 21 (c) of NDPS Act, as many as 10 witnesses were examined by the prosecution in support of its case. No witness was examined in defence.
3. PW-10 SI Satyavan inter alia stated that on 04.05.2011, he has received a secret information at about 8.45 am that one Ashraf Khan, a resident of Bareilly, who used to supply heroin in Delhi, would come in front of a public toilet under East Rohini Metro Station to deliver heroin to someone between 10.30 am to 11.30 am. He produced the informer before Inspector Vivek Pathak who transmitted the information to ACP/N&CP Shri Bir Singh on telephone. On being instructed by the ACP to conduct a raid without delay, a raiding party consisting of himself, Head Constable Om Prakash and Constable Yogesh was organized. They reached at Rohini East Metro Station at 10.30 am. On the way, he asked some passengers at Burari Chow bus stand, and some passersby at Madhuban Chowk and also some passersby at the spot to join them, but no one agreed. Thereupon, they took position under Rohini East Metro Station and started waiting for the accused to come. At about 10.50 AM, the appellant came from the side of Rohini West Metro Station and was identified by the secret informer. After waiting for 5-6 minutes, the appellant turned back and was then apprehended. After introducing the raiding party to the appellant, he was apprised of the secret information which the police had received and was also told
