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2020 Supreme(Del) 1254
IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
State Of NCT Of Delhi - Appellant
Versus
Palgiri Siddique And Anr - Respondent
Criminal Appeal No. 30 of 2020
Decided On : 27-01-2020
Meenakshi Chauhan, Advocate, S.S. Das, Advocate
Non-compliance with mandatory provisions of the NDPS Act, including Section 42(2), Section 42(1), and Section 50, as well as the absence of independent witnesses, led to the acquittal of the respondents.
Headnote:
NDPS Act - Acquittal - Section 21(c)/29 - [Narcotics and Psychotropics Substances Act, 1985] - Section 42(2), Section 42(1), Section 50 - The court discussed the non-compliance of Section 42(2) and Section 42(1) of the NDPS Act, lack of compliance with Section 50, and the absence of independent witnesses. The acquittal was upheld due to the failure to comply with mandatory provisions of the NDPS Act.
Fact of the Case:
The State appealed the acquittal of the respondent charged under Section 21(c)/29 of the NDPS Act. The prosecution's case involved a raid based on secret information, resulting in the seizure of heroin from the accused. The Trial Court acquitted the respondents due to non-compliance with Section 42 of the NDPS Act, lack of independent witnesses, and inconsistencies in the testimonies.
Finding of the Court:
The Court found non-compliance with Section 42(2) and Section 42(1) of the NDPS Act, lack of compliance with Section 50, and the absence of independent witnesses. The acquittal was upheld due to the failure to comply with mandatory provisions of the NDPS Act.
Issues: Non-compliance with Section 42(2) and Section 42(1) of the NDPS Act, lack of compliance with Section 50, absence of independent witnesses, and inconsistencies in the testimonies.
Ratio Decidendi: The Court held that the failure to comply with mandatory provisions of the NDPS Act, including Section 42(2), Section 42(1), and Section 50, as well as the absence of independent witnesses, led to the acquittal of the respondents.
Final Decision: The appeal was dismissed, upholding the acquittal of the respondents.
JUDGMENT
Vibhu Bakhru, J. - The State has filed the present appeal impugning the judgment dated 16.02.2017, whereby the Additional Sessions Judge-04, Patiala House Courts had acquitted the respondent of the charges under Section 21(c)/29 of the Narcotics and Psychotropics Substances Act, 1985 (NDPS Act). The State contends that the Trial Court had erred in not appreciating that there were only minor contradictions in the testimonies of the material witnesses, which could be overlooked. Further, the Trial Court had failed to appreciate that there was no requirement to have public witnesses corroborate the case of the prosecution.
The prosecution''s case
2. The case of the prosecution is that on 22.06.2012, Inspector Devender Singh, Special Cell, SR was present at his office at New Friends Colony when he received information from a secret informer that one Afghani national, namely Dawood, staying at a hotel in Daryaganj or Jama Masjid would come at about 2:30 pm to Millennium Park, near Sarai Kale Khan, and would deliver heroin to someone. This information was recorded vide DD No. 6 at 10:35 am in Roznamcha, Special Cell, SR by Inspector Devender Singh. Inspector Devender Singh communicated the same to ACP/NDR through telephone who directed him to take the necessary action. As per directions of the ACP, a raiding party was formed consisting of SI Mohd Mobin, ASI Mahipal Singh, HC Balraj Singh, HC Ajay Kumar, Ct Rajesh Kumar and Ct. Satish Kumar. Inspector, Devender Singh, along with the raiding party went to the spot at 01:10 p.m. in two private vehicles.
3. After reaching the bus stand of Sarai Kale Khan, Inspector Devender Singh stopped the vehicle and asked 5-6 passersby to join the raiding party. However, they were not agreeable to join the proceedings and went away without giving their names or addresses. The same exercise was also conducted at Millennium Park, however, no one joined the raiding party.
4. On 22.06.2012, at about 2.40 pm, two boys came and stood near the corner of the parking. One of the boys was tall, fair complexioned and looked like an Afgani. The height of the other boy was short. The short heighted boy had a big jute bag in his hand. As per the secret informer, the said persons had come to supply heroin. After ten minutes, another person, tall, fair and bearded, who looked like an Afghani, also came there with a bag on his back. As per the secret informer, that person had come to supply heroin and his name was Dawood. The person who came in last (Dawood) took out two packets and gave one each to the boys. The short heighted boy kept the said packet in his jute bag, whereas, the tall boy kept the packet in his hand. Inspector Devender Singh signaled to the members of the raiding party and apprehended the said three persons. Thereafter, Inspector Devender (PW2) introduced himself and the raiding party and enquired the name of the three persons. The said three persons disclosed their names and places of residence. Inspector Devender Singh informed them that he had information regarding illegal trade of heroin and therefore their search would be conducted. He also served individual notices under Section 50 of the NDPS Act and made them understand their legal rights to be searched before a Gazetted officer/ Magistrate and that they also had a right to search the raiding party.
5. Inspector Devender Singh, thereafter, requested the ACP/NDR to come to the spot and he reached at about 3.30.pm. The search of the three persons was conducted before the ACP. The respondent and his jute bag were searched and a polythene packet containing a cream coloured substance was found. On checking and weighing the same, it was found to be 1000 grams of heroin. Thereafter, the other accused persons were also searched and the packet recovered from Sikander Owaish (which he had in his right hand) was found to contain 1010 grams of heroin. The search of the accused Mohd Dawood, yielded two transparent polythene packets. These were
