ASHRAF KHAN Vs. STATE OF DELHI

JUDGEMENT

(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 about his legal right to be searched before a Magistrate or a Gazetted officer. Notice under Section 50 NDPS Act Ex.PW-1/A was then served upon him and was read over to him. He, however, refused to avail the offer and as per his direction, his reply was written by the Sub-Inspector. On search of the appellant, one transparent polythene, tied at the mouth with a rubber band, was found in the right side pocket of his pant. On opening the polythene, the substance found therein was checked with the help of field testing kit and it gave positive test of heroin. On being weighed, its weight was found to be 275 grams. Two samples of 5 gram each were then drawn from the substance and their parcels were prepared. The samples as well as the residual substance were seized with the seal of 7B PS NB Delhi which after use was handed over to Head Constable Om Prakash. All the three parcels, i.e., two samples and the residual substance as well as the FSL form and a copy of seizure memo were given to Constable Yogesh Kumar with direction to hand over the same to the SHO, Crime Branch. He further stated that on reaching the office of Narcotics Cell, the appellant was produced before Inspector Vivek Pathak and report under Section 50 of NDPS Act Ex.P/B was prepared.