Md. Sarvar v. State

15. Insp Satender Sangwan, Addl.

SHO PS Lajpat Nagar deposed as PW-10. He stated that on 05.04.2011 at about 10:30 am, a secret informer came to the office of Special Cell SR, NFC and gave information that one Afghani national will deliver a consignment of drugs to some Nigerian national on that day at about 06:0 pm opposite Netaji Subhash Institute of Technology, Dwarka More. Thereafter, he set up a raiding team and reached the spot. He constituted a raiding team comprising of himself, ASI Rajender, ASI Mahipal, HC Balraj, HC Ram Karan, Ct Rajesh and Ct Satish. The raiding team left the office in two private cars at about 12:30 pm. He stated that he made efforts to join 5-6 passerby to join the raiding team at Maharani Bagh, however, he was unsuccessful in doing so. He stated that at the spot also, he requested 5-6 passerby to join the raiding party, however, he was unsuccessful in doing so. He stated that he apprised the two accused of their legal rights to the effect that they can search the police team before their search is conducted and can get themselves searched in the presence of any Gazetted officer or Magistrate. The accused refused to get themselves searched in the presence of a Gazetted officer or Magistrate. Thereafter, PW-10 prepared a notice under Section 50 of the NDPS Act which was first served on Emeka Paul, who wrote his refusal in English. Thereafter, he served the said notice on accused Md Sarvar, who wrote his refusal in English on the carbon copy of the notice. In his cross-examination, he stated that in the notice (Ex. PW4/C), it is not recorded that he had informed the accused that he has a legal right to get himself searched before a Gazetted officer or Magistrate. He stated that he had left the spot around 08:30-08:45 pm. He affirmed that he had told the accused that he had a legal right to get himself searched before a Gazetted officer or Magistrate. PW-10 affirmed that the words ‘legal right’ were inadvertently missed by him in the notice given by him to accused Md Sarwar.

16. Ms N Flavia S Hangam, wife of Emeka Paul, deposed as DW-1. She stated that she works at a call centre in Delhi and has been residing in Delhi for the last ten years. She stated that Emeka Paul was engaged in the business of exporting clothes and jewelry from India to Nigeria. On 05.04.2011, at about 10:30 am, four men came to their residence and told them that they had come to check their passports. One of the persons introduced himself as Anand Swaroop. She stated that the said officials took her husband on the pretext of passport verification. At the police station, she was told that her husband was engaged in the drugs business and had been arrested in a drugs case. She stated that her husband told her that the police officials had demanded $10,000/- from him.

17. The appellant deposed as DW-2. He stated that his real name is Masood and the police had taken his original passport from his pocket at the time of his apprehension. He stated that he was picked up from a park in front a metro station in Saket on 05.04.2011 at about 05:00 pm when he was taking a walk with his wife and children. He stated that he had come to India in November, 2010 to get his wife treated for certain psychiatric issues and her treatment was being done at Apollo Hospital. On the said date, the police officials told him to show them his passport. He stated that since his visa had expired, the police officials told him to accompany them to the police station. He stated that at the police station, he was made to sign certain blank and written documents. On him making certain inquiries, the police officials beat him with a wooden object and also slapped him various times. In his crossexamination, he denied all the questions that were put to him. He denied living in India under the name Mohd Sarvar. He denied being involved in the drugs business.

18. In his statement under Section 313 of the CrPC, the appellant stated that he was picked up by the police in front of a metro station near Saket on 05.04.2011 at about 05:00 pm when he was taking a walk in the park with his family. He had come to India in the month of November, 2010 to get his wife treated for certain ailments. He told the police officials that his name is Masood. Thereafter, the police officials examined his passport and since his visa had expired, told him to accompany them to the police station. Thereafter, he was taken to an office where he saw three-four more Afghani nationals detained. He denied that any notice under Section 50 of the NDPS Act was served on him. The police officials had beaten him and forced him to copy some sentences from another piece of paper. He denied having the ability to write English and stated that he could only write Pushto, Farsi and Urdu. Discussions and Conclusion

19. The learned counsel appearing for the appellant had sought to assail the impugned judgment on the sole ground that the provisions of Section 50 of the NDPS Act were not complied with. He rested the appellant’s case on the judgment of the Supreme Court in Arif Khan @ Agha Khan v. State of Uttarakhand: (2018) 18 SCC 380. On the strength of the said decision, he contended that since the appellant was not searched in the presence of a Magistrate or a Gazetted Officer, the search fell afoul of the mandatory provisions of Section 50 of the NDPS Act and therefore, any conviction on the basis of the said search could not be sustained. He submitted that the appellant was required to be acquitted.

20. The aforesaid contention is unmerited. This Court in Innocent Uzoma v. State: CRL.A. 139/2017, decided on 14.01.2020, had considered the aforesaid issue and after referring to the decision of the Constitution Bench of the Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat: (2011) 1 SCC 609, held that it was not essential that a suspect be searched before a Magistrate or a Gazetted Officer if he, after being informed of his rights to be so searched, declines to be searched before a Magistrate or a Gazetted Officer. Thus, merely because the appellant in this case was not searched before a Magistrate or a Gazetted Officer would not render the search to be illegal. The decision in Arif Khan (supra) turned on its own facts.

21. However, it is essential that the appellant ought to be informed that he has a right to be searched before a Gazetted Officer or a Magistrate. In State of Punjab v. Baldev Singh: 1999 (6) SCC 172, the Constitution Bench of the Supreme Court had, inter alia, held that “when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.”

22. In the present case, the prosecution has relied upon the notice under Section 50 of the NDPS Act (Ex.PW4/C) allegedly served on the appellant. The said notice is set out below:- “NOTICE U/s 50 NDPS Act You Mr Mohd. Sarwar s/o Abdul Khalid R/o Lohawala, Ara Tehri, Kandhar, Afghanistan, are here by informed that we have an information that you have drugs in your possession (heroine) & you can search the police party before your search and you can get searched before Magistrate or GO.”

23. It is apparent from the plain reading of the said notice that the appellant was not informed that he has a legal right to be searched before a Magistrate or a Gazetted Officer. Informing the appellant that he could search the police party or could be searched before a Magistrate or a Gazetted Officer, cannot be construed as informing the appellant that he had a legal right to be searched before a Magistrate or a Gazetted Officer.

24. In Ashok Kumar Sharma v. State of Rajasthan: (2013) 2 SCC 67, the Supreme Court had held as under: “7. We are in this case concerned only with the question whether PW 1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under Section 50 of the NDPS Act. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a five-Judge Bench. This Court in Vijaysinh Chandubha Jadeja [(2011) 1 SCC 609: (2011) 1 SCC (Cri) 497] answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a gazetted officer or a Magistrate. This Court also held that it is mandatory on the part of the authorised officer to make the accused aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer is concerned, an obligation is cast on him under Section 50 of the NDPS Act to apprise the person of his right to be searched before a gazetted officer or a Magistrate. The question, as to whether this procedure has been complied with or not, in this case the deposition of PW 1 assumes importance, which reads as follows: “He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any gazetted officer if he wished. He gave his consent in written and said that I have faith on you, you can search me. Fard regarding apprising and consent is Ext. P- 3 on which I put my signature from A to B and the accused put his signature from C to D. E to F is the endorsement of the consent of the accused and G to H is signature, which has been written by the accused.” The above statement of PW 1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a gazetted officer if he so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a gazetted officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a gazetted officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person.

8. We may, in this connection, also examine the general maxim ignorantia juris non excusat and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Undisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various laws laid down in this country, leave aside the NDPS Act. We notice that this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorised officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a gazetted officer or a Magistrate warranting strict compliance with that procedure.”

25. In the present case, although SI Satender Sangwan (PW10) had testified that he had informed the accused persons (including the appellant) about their legal right to be searched in the presence of a Magistrate or a Gazetted Officer; in the notice (Ex.PW4/C) under Section 50 of the NDPS Act allegedly served by him, it was not recorded that the accused had a legal right to get himself searched. He had sought to explain the same by stating that he had inadvertently missed out the word “legal right” in the notice under Section 50 of the NDPS Act. This Court does not find the said testimony to be credible. The prosecution cannot be now permitted to add to the notice under Section 50 of the NDPS Act by claiming that there was an inadvertent error. It is also relevant to note that this explanation was provided by PW10 during the cross-examination. This Court is unable to concur with the decision of the Trial Court in accepting this testimony.

26. Failure to inform the accused of their legal right to be searched before a Magistrate or a Gazetted Officer, falls foul of the mandatory provisions of Section 50 of the NDPS Act. Thus, the appellant is liable to be acquitted.

27. This Court also finds that the conviction of the appellant cannot be sustained on the evidence obtaining in this case. There are several inconsistencies in the testimonies of the witnesses, which raises doubts as to the case set up by the prosecution.

28. ASI Rajender Kumar – who had testified as PW[1] – had deposed that he along with raiding team had left the Special Cell at 12:00 noon. He had stated that the IO had briefed the members of the raiding team at about 11:00 am at the office of the Special Cell, SR. He testified that they had left the spot in two vehicles, one of which was the official vehicle (that is, Gypsy) and the other was a private vehicle. He deposed that he had travelled to the spot in a private vehicle along with HC Vijay Pratap and HC Ram Karan and the said vehicle was being driven by Ct. Rajesh. He stated that Inspector Satender Sangwan, SI Anand Swaroop and HC Balraj came to the spot in the official vehicle, that is, a Gypsy which was driven by Ct. Satish. He stated that the official Gypsy had started from the Special Cell first and they had followed in a private car. Thus, according to PW[1], the raiding team consisted of him, HC Vijay Pratap, HC Ram Karan, Ct. Rajesh, Inspector Satender Sangwan, SI Anand Swaroop, HC Balraj and Ct. Satish. The raiding team had travelled in two vehicles, one of which was driven by Ct. Satish.

29. HC Balraj (who was one of the members of the raiding team deposed as PW[4]) stated that Inspector Satender Sangwan had constituted the raiding party consisting of him, ASI Rajender, ASI Mahipal, HC Ram Karan, Ct. Satish and Ct. Rajesh. Thus, according to him, SI Anand Swaroop was not a part of the raiding team and he did not accompany the said team when they left PS Special Cell, SR on the day in question (05.04.2011). Further, according to him, ASI Mahipal was a member of the raiding party. However, according to the testimony of PW[1], ASI Mahipal was not a part of the raiding party.

30. The inconsistencies do not end there. Whereas PW[1] had deposed that they had left in two vehicles, one of which was an official Gypsy; PW[4] deposed that the team had left in two private vehicles, one a Maruti Car and the other one, a swift. Whereas according to PW[1], the private vehicle (in which he travelled to the spot) was driven by Ct. Rajesh and the said vehicle included HC Vijay Pratap and HC Ram Karan; the official car (Gypsy) was driven by Ct. Satish. PW[4] (HC Balraj Singh) testified that one vehicle (Maruti) was driven by him and the other was driven by Inspector Satender Sangwan. According to him, HC Ram Karan, Ct. Rajesh and Ct. Satish were travelling in the vehicle (Maruti) driven by him, while the other members of the raiding party were in the Swift car driven by Inspector Sangwan. Such material inconsistencies cannot be overlooked. Whereas according to Inspector Satender Sangwan (PW[4]) and ASI Rajendra Kumar (PW[1]) did not travel along with him in the vehicle driven by him; as per the testimony of ASI Rajender Kumar, Inspector Satender Sangwan did not travel with him in the same vehicle but travelled in an official car. Thus, none of these two witnesses (PW[1] and PW[4]), who travelled in separate cars, testified that Inspector Satender Sangwan had travelled with them.

31. There is yet another material inconsistency in the testimony of PW[1] and PW[4]. According to PW[1], the part of the raiding team, which travelled in the official car left earlier and he along with the remaining team followed thereafter. However, PW[4] testified that both the vehicles left simultaneously and took the same route. Satender Sangwan (PW10) also testified that the raiding team had left in two private cars at about 12:30 p.m.

32. (PW[1]) ASI Rajender Kumar was cross-examined and he testified that the vehicle in which he was travelling (the private vehicle) did not stop anywhere and they reached the spot at about 01:00 p.m. and when they reached the spot, the official Gypsy had already reached. As noticed above, according to PW[4] and PW10, no official gypsy was used.

33. There is another aspect that requires to be considered. According to PW10 (Inspector Satender Sangwan), he stopped at a bus stop at Maharani Bagh and requested five to six passersby to join the raiding team after apprising them. However, none agreed to join the proceedings. He further deposed that on reaching the spot, he again requested four or five public persons to join the raiding team. However, they also refused. However, PW[1] could not provide the name of even a single person, whom he had so requested. PW10’s testimony is inconsistent with that of PW[4] inasmuch as, PW[4] did not depose that any of the vehicles had stopped on the way to ask passersby to join the raiding team. Thus, it is extremely doubtful whether PW10 had contacted any passersby on his way to the spot.

34. Although it is well settled that if the testimony of the official witnesses is credible, that need not be doubted only because independent witnesses have not been included in the proceedings; however, in the present case, where there are serious inconsistencies in the testimonies of the official witnesses, the fact that independent witnesses had not been included in the proceedings, should, in the opinion of this Court, be treated as fatal to the case of the prosecution.

35. In Yogesh Singh v. Mahabir Singh: (2017) 11 SCC 195, the Supreme Court had held as under:

37. In the present case, the testimony of PW[1] raises serious doubts as to the case of the prosecution. In his cross-examination, he stated that he had not seen the accused; he could not exactly tell the positions where the Investigating Officer or the other members of the raiding team were standing; in his presence, no proceedings were conducted at the spot; and he could not tell what was recovered from the accused. He also testified that he had not visited the spot after registration of the FIR.

38. This testimony would not be damaging to the case of the prosecution, if the spot where PW[1] was deployed was far away or was not visible from the spot where the accused were allegedly apprehended. But, this is not the case as discernable from the testimony of other witnesses. PW[4], in his cross-examination, stated that ASI Rajender (PW[1]), ASI Mahipal, HC Ram Karan, Ct. Rajesh and Ct. Satish were standing around him. Although he could not tell their exact positions. PW[4] also deposed that immediately after the accused persons were accosted, Inspector Satender Sangwan introduced himself and introduced “other members of the raiding party to the accused persons”.

39. Thus, all members of the raiding party would have left their positions immediately on the accused being accosted. According to PW[4], the entire proceedings took place at the spot; the accused were told of their rights and handed over the notice under Section 50 of the NDPS Act; they wrote their refusal for being searched before a Magistrate/Gazetted Officer (Ex.PW4/C and Ex.PW4/D); thereafter, Inspector Sangwan had taken a polythene bag (panni), which the accused Emeka Paul was holding in his right hand and had checked the same; he weighed the same in an electronic weighing machine and the same was found to weigh around 800 grams. He had drawn sample of 50 grams and put it into a transparent polythene pouch, which was converted into a cloth pullanda; the polythene containing the remaining Heroin was converted into another pullanda; both pullandas were sealed; Inspector Sangwan had searched the appellant and found a khakhi coloured tape around the right leg below the knee; the tape was cut with the help of a blade and a polythene bag was found concealed inside the same; the polythene bag was cut from one side and the substance inside it was checked with the field testing kit that gave a positive result for heroin; the same was weighed on an electronic machine and the weight was found to be 860 grams; a sample of 50 grams was taken out and put into a small transparent polythene pouch, which was converted into a pullanda; the cut on the polythene was covered with a tape and thereafter, the polythene, along with tape, was removed from the leg of the appellant and converted into a pullanda; both pullandas were sealed with the seal of SS; Inspector Satender Sangwan had filled the form of FSL in duplicate; the property recovered from the possession of the accused was taken into possession by separate seizure memos; and Inspector Sangwan had prepared tehrir, which was handed over to ASI Rajender Singh.

40. However, according to ASI Rajender Singh, he was not aware of the aforesaid proceedings. This raises serious doubts whether any of the said proceedings had, in fact, taken place at the spot as claimed by the prosecution.

41. PW10 (Inspector Satender Sangwan) had testified that at 10:30 am on 05.04.2011, he had received an information from a secret informer that one Afgani National would deliver the consignment of drugs to some Nigerian National at about 06:00 p.m. opposite Netaji Subhash Technology Institute, Dwarka Mod. However, PW[4] had deposed that Inspector Satender Sangwan had constituted a raiding team and told them that one Afgani person would come during the day at about 02:30 p.m near Dwarka Mod, opposite Netaji Subhash Technology Institute, to supply the heroin to some Nigerian National and they had left their office at about 12:30 p.m. in two separate cars. PW[1] had stated that they had left the Special Cell at about 12:00 Noon. The inconsistencies in their statements as to whether they had left at 12:00 noon or 12:30 p.m. may not be material. However, it does raise a question as to why Inspector Satender Sangwan had left the office at that time when, according to his information, the Afgani National would come to the spot at about 6:00 p.m. This is also inconsistent with the testimony of PW[4] that Inspector Sangwan had informed them that the Afgani National would come to deliver heroin at the spot at about 02:30 p.m.

42. SI Anand Swaroop (PW[8]) had testified that on 05.04.2011, he was posted at Special Cell SR New Friends Colony and he was informed at about 06:00 p.m. that Inspector Satender Sangwan had apprehended two persons along with drugs and further investigation of this case had been marked to him. He claimed that he immediately left the Special Cell and reached the spot in front of Netaji Subhash Technology Institute at 06:40 p.m. He stated that Inspector Satender Sangwan along with staff and the accused was present there. He, thereafter, arrested the accused including the appellant and also conducted their personal search. During the personal search of the accused Emeka Paul, ₹100/- in cash, one passport, one mobile phone of make Nokia and a notice under Section 50 of the NDPS Act were recovered and during the personal search of the appellant; ₹360/- in cash, one mobile phone of make Nokia and a notice under Section 50 of the NDPS Act were recovered. He stated that in the meanwhile, ASI Rajender Kumar also reached the spot after registration of the FIR and handed over to him a copy of the FIR and rukka. After completion of the investigation at the spot, they along with the accused left the spot at about 11:30 p.m. and the accused were produced before Inspector R.S. Sehrawat, SHO, PS Special Cell, Lodhi Colony. In his crossexamination, he stated that ASI Rajender Kumar had left the spot in his presence at about 06:45 p.m. for registration of the case, while other members of the raiding team remained at the spot with him. He stated that both the accused, HC Balraj and Ct. Rajesh had left the spot along with him in his personal car (Maruti Zen Estilo) while the other team members came in another vehicle (private car). He stated that both the vehicles reached PS Special Cell at about 12:00 a.m. (night). This testimony indicates yet another inconsistency in the testimonies of the official witnesses. According to PW[1], PW[4] and PW10, the raiding team had come in two vehicles. As noticed above, there are discrepancies as to the members of the raiding team as well as whether one of the two vehicles, was an official vehicle or both were private vehicles. There is also inconsistency in the testimonies of the witnesses whether the two vehicles had left simultaneously. However, there is no inconsistency as to the fact that there were two vehicles. It is obvious that two vehicles would be required, considering that the raiding team consisted of seven persons and the said team was also accompanied by the informer. Thus, eight persons would require two vehicles. According to PW[8], he came to the spot at about 06:40 pm in his own private vehicle. Thus, there ought to have been at least three vehicles at the spot. But, according to PW[8], there were only two vehicles including his own private vehicle. In his cross-examination, PW[8] had testified that except for ASI Rajender Kumar, who had left for registration of the FIR, remaining persons of the raiding team remained at the spot with him.

43. There is no explanation as to what had happened to the third vehicle. According to PW10, he had left the spot after PW[8] had arrived. However, this is contrary to the above noted testimony of PW10.

44. In view of the above material inconsistencies, the prosecution has failed to establish beyond reasonable doubt that the appellant was guilty of the offence under Section 21(c) of the NDPS Act.

45. It is also material to note that the accused were apprehended from a busy spot and there were permanent establishments in the immediate vicinity. It is also admitted that there was a residential house about 100- 200 meters of the spot. However, the police officials had taken no serious steps to join any independent witnesses in the proceedings. Curiously, none of the official members had noted down the registration number of the TSRs in which the accused had come to the spot. There is no credible explanation for not noting down the registration number of the TSRs. The entire raiding team was there at the spot along with the informer to apprehend the accused and one would assume that they were keeping a watchful eye. In such circumstances, not noting down the number of the TSRs clearly raises a doubt as to whether the raiding team was, in fact, at the position as claimed by them.

46. It is relevant to note that two witnesses were examined for the defence – Ms N. Flavia S. Hangam (wife of Emeka Paul) deposed as DW[1] and the appellant deposed as DW[2]. Ms Hangam deposed that on 05.04.2011 at about 10:30 am, they were visited by four police officials including Anand Swaroop. She stated that she had seen him in the locality of Dwarka, as he was a resident of the said locality. She stated that the police officials had taken her husband for passport verification and she had accompanied her husband to the PS. She stated that she was asked to leave from there and her husband would be permitted to leave after an hour. She stated that her husband did not come home the entire night and consequently, she went to the police station next morning, where she was informed that her husband has been arrested in a drug case. Similarly, the appellant also deposed that he was intercepted in the park and he was picked up from the park in front of a metro station, while he was walking with his wife and children. He stated that he was taken to the office where there were three or four more Afgani Nationals. He claimed that the police officials had brought certain blank documents and asked him to sign the same. On his resisting signing the same, he was beaten and under threat and coercion, he signed certain blank documents and also wrote few lines, which the police officials had told him to copy from another piece of paper.

47. In view of the evidence obtaining in this case, this Court is of the view that the prosecution has failed to establish, beyond reasonable doubt, that the appellant was guilty of the offence for which he was charged.

48. The appeal is, accordingly, allowed. The appellant is acquitted of the offence for which he was convicted. He is directed to be released forthwith, provided that he is not required in any other case.

VIBHU BAKHRU, J FEBRUARY 24, 2020 RK