CRL.A. 191 of 2016

IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 24.02.2020

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CRL.A. 191/2016

MD. SARVAR

....Appellant

versus

STATE

.....Respondent

Advocates who appeared in this case:

For the Appellant

: Mr Ajay Verma, Ms Pratiksha Tripathi and

Ms Katyayani

For the Respondent

: Ms Meenakshi Chauhan, APP for State

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

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 ₹1,00,000/-

CRL.A. 191 of 2016

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 him by 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.

CRL.A. 191 of 2016

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

CRL.A. 191 of 2016

had travelled to the spot in the private vehicle along with HC Vijay

Pratap, HC Ram Karan and Ct. Ra