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2020 Supreme(Del) 87
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIBHU BAKHRU, J.
Md. Sarvar - Appellant
Versus
State - Respondent
Crl.A. No. 191 of 2016
Decided On : 24-02-2020
Advocate Appeared:
For the Appellant :Ajay Verma, Pratiksha Tripathi, Katyayani, Advocate.
For the Respondent: Meenakshi Chauhan, APP.
Headnote:
NDPS Act - Conviction under Section 21 - Summary of Acts and Sections: The court discussed the provisions of Section 50 of the NDPS Act and its interpretation as per the decision in Arif Khan v. State of Uttarakhand and Innocent Uzoma v. State. It highlighted the requirement to inform the accused of their legal right to be searched before a Magistrate or a Gazetted Officer, as per the decision in State of Punjab v. Baldev Singh. The court found that the notice under Section 50 of the NDPS Act served on the appellant did not inform him of his legal right to be searched before a Magistrate or a Gazetted Officer, leading to the search being illegal. It also discussed the inconsistencies in the testimonies of the witnesses, raising doubts about the prosecution's case.
Fact of the Case:
The appellant was convicted under Section 21 of the NDPS Act for possession of heroin. The prosecution's case was based on a raid conducted on the appellant and another individual, during which heroin was found in their possession. The appellant and the other individual were apprehended based on secret information received by the police. The appellant challenged the conviction on the grounds of non-compliance with the provisions of Section 50 of the NDPS Act and inconsistencies in the testimonies of the witnesses.
Finding of the Court:
The court found that the search conducted on the appellant was illegal as he was not informed of his legal right to be searched before a Magistrate or a Gazetted Officer, as required by Section 50 of the NDPS Act. The court also noted serious inconsistencies in the testimonies of the witnesses, raising doubts about the credibility of the prosecution's case. As a result, the court acquitted the appellant of the offence for which he was convicted.
Issues: The issues in the case revolved around the compliance with the provisions of Section 50 of the NDPS Act and the credibility of the prosecution's case based on the inconsistencies in the testimonies of the witnesses.
Ratio Decidendi: The court's decision was based on the interpretation of Section 50 of the NDPS Act and the requirement to inform the accused of their legal right to be searched before a Magistrate or a Gazetted Officer. The court also considered the impact of serious inconsistencies in the testimonies of the witnesses on the credibility of the prosecution's case.
Final Decision: The court acquitted the appellant of the offence for which he was convicted and directed his release forthwith, based on the finding of an illegal search and serious doubts raised about the credibility of the prosecution's case.
JUDGMENT :
1. The appellant has filed the captioned appeal, inter alia, impugning a judgment dated 03.09.2015 passed by the Special Judge – NPDS, Patiala House Courts, New Delhi whereby the appellant was convicted of the offence under Section 21 of the Narcotic, Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The appellant also impugns an order dated 07.09.2015, whereby he was sentenced to serve rigorous imprisonment for a period of ten years and a fine of Rs.1,00,000/- and in default of payment of the said fine, to undergo simple imprisonment for a period of six months.
2. The prosecution’s case, in brief, is that on 05.04.2011 at about 10:30 am, secret information was received by the Special Cell CR, New Friends Colony that one Afghan national would be coming at about 03:00 pm to deliver a consignment of drugs to a Nigerian national. A raiding team was constituted and tasked to reach the spot. On their way, the IO tried to include five-six passersby as witnesses, however, they declined to do so.
3. At about 02:40 pm, two persons were identified by the secret informer as the said Afghan and Nigerian nationals. The Afghan national, thereafter, took out a packet from his front pocket and handed over the same to the Nigerian national. At this point, both persons were apprehended. On enquiry, their names were revealed as Emeka Paul (Nigerian national) and Md. Sarvar (Afghan national). They were, thereafter, apprised of their legal rights and notices under Section 50 of the NDPS Act were served to them. Upon the search of Emeka Paul, a white coloured polythene was recovered from him, which had been handed over to himby Md. Sarvar. The said packet contained 800 grams of a cream/brown coloured powder, which tested positive for Heroin. On Md. Sarvar’s search, one packet was found tied to his right leg. The said packet too contained 860 grams of a cream/brown coloured powder, which tested positive for Heroin.
4. By an order dated 08.09.2011, charges were framed against the accused. They were charged with the offence punishable under Section 21 (c) read with Section 29 of the NDPS Act. Both pleaded not guilty to the said charges and the matter was set down for trial.
Evidence
5. In order to prove its case, the prosecution examined ten witnesses.
6. ASI Rajender Kumar, SB Special Cell, SR Friends Colony, deposed as PW-1. He deposed that on 05.04.2011, he along with Insp. Satender Sangwan and other staff members had gone to the spot in front of Netaji Subhash Institute of Technology. Insp. Satender Sangwan, who was the IO in this case, had handed over the rukka of this case at 06:45 pm along with four pullandas sealed with the seal of SS, FSL to PW-1. PW-1 stated that he was directed to hand over the rukka to the Duty Officer, PS Special Cell, Lodhi Colony and the pullandas along with other documents to Insp. R.S. Sehrawat, SHO, PS Special Cell. After registration of the FIR, PW-1 collected a copy of the same along with the rukka and came back to his office at Special Cell, SR, New Friends Colony. PW-1 was cross-examined by the Advocate for the accused, Emeka Paul. In his cross-examination, PW-1 stated that he along with other members had left special cell ST at about 12:00 noon. The IO had briefed the members of the raiding party at about 11:0 am in the office of special cell SR. He stated that they had left for the spot in two vehicles, one official vehicle (gypsy) and one private vehicle. He had travelled to the spot in the private vehicle along with HC Vijay Pratap, HC Ram Karan and Ct. Rajesh (who was driving the said vehicle). Insp. Satender Sangwan, SI Anand Swaroop and HC Balraj came to the spot in an official vehicle driven by Ct Satish. The official gypsy had started from the office and thereafter, he stated that he left the office in the private car. He denied that the vehicle in which he reached the spot (the private vehicle) had stopped anywhere on the way to the spot. He stated that he could not tell whether the official g
