Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Decided on: 10 April, 2018
+ CRL.L.P. 220/2018
NARCOTICS CONTROL BUREAU ..... Petitioner
Represented by: Mr. P.C. Aggarwal, Advocate
versus
SAAD ANSARI & ORS. ..... Respondent
Represented by: None
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl.M.A.6308/2018 (exemption)
Allowed, subject to all just exceptions.
CRL.L.P. 220/2018
1. Aggrieved vide judgment dated 25th September, 2017, whereby the
Learned Additional Sessions Judge acquitted Respondent No. 1 Saad Ansari
for the offences punishable under Section 20(b)(ii)(B) read with Section 28
of Narcotics Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS
Act') and Section 29/20(b)(ii)(C) NDPS Act and Respondent No. 2 Sonam
Dava for the offences punishable Section 20 (b)(ii)(C) and Section 29 of
NDPS Act, petitioner has preferred the present leave petition.
2. Briefly stated, prosecution case is that on 10th January, 2013 at about
10:00 A.M., a secret information was received by Azad Singh that one
person namely Saad Ansari, aged about 25-26 years, medium built, fair
complexion, was coming from Mumbai to Delhi by Rajdhani Express to
receive charas from another person namely Dava Lama. The charas was to
be delivered to Saad Ansari at Brij Palace Hotel, Paharganj, New Delhi.
Crl.L.P.No.220/2018 Page 1 of 5
Aforesaid information was reduced into writing and K.S. Chauhan, Asst.
director, NCB constituted a raiding team consisting of Azad Singh, C.S. Rai,
Vishwanath Tiwari, Sarita Kataria, Ct. Vasudev and Ct. Ganesh. The team
reached the hotel and the receptionist, after checking the hotel register,
informed that Saad Ansari checked into the hotel on 10th January, 2013 and
room no. 103 was allotted to him. Surveillance was mounted near the hotel
and raiding team waited for the person who was to deliver the consignment
of charas. At about 2:30 P.M., one person of similar description as
mentioned in the information entered the hotel and wanted to meet the
person staying in room no. 103. Raiding team also proceeded towards the
room and found two persons namely Saad Ansari and Sonam Dava
(respondents herein). Notice under Section 50 NDPS Act was given to them
and they were explained their legal right to be searched before a Magistrate
or Gazetted Officer, however, both of them refused to exercise their right.
Nothing incriminating was found from the personal search of Sonam Dava.
From the personal search of Saad Ansari, Rs.52,000/- was recovered and on
enquiry, he revealed that out of the total amount, Rs.35,000/- was to be paid
to Sonam Dava for purchasing charas. During the search of the room, two
bags of black colour lying on the bed were recovered. One black colour bag
on which "HP" was written was identified by Saad Ansari as his bag and the
other bag with "Converse" written on it was identified by Sonam Dava as his
bag. 19 pieces of rectangular shape of dark brown colour solid substance
was recovered from the bag of Sonam Dava and its total weight was 2 kg.
Two samples of 25 grams each were taken out and kept in small polythene
pouches and were marked as A1 and A2. On the basis of material on record,
charges under Section 20(b)(ii)(B) read with Section 28 NDPS Act and
Crl.L.P.No.220/2018 Page 2 of 5
Section 29/20(b)(ii)(C) NDPS Act were framed against Saad Ansari and
charges under Section 29/20(b)(ii)(C) NDPS Act were framed against
Sonam Dava.
3. Prosecution examined 16 witnesses in order to prove its case. Rajesh
Kumar (PW-2), C.S. Rai (PW-3), Sarita Kataria (PW-4), Azad Singh (PW-
7) and Vishwanath Tiwari (PW-9), members of the raiding team, deposed on
the lines of complaint. V.K. Sharma (PW-11), Chemical examiner, proved
the chemical analysis report as Ex.PW-11/A.
4. Saad Ansari, in his statement recorded under Section 313 Cr.P.C.,
stated that on 10th January, 2013, his train reached New Delhi Railway
Station. At that time, he was accompanied by his friend Mohsin Shaikh and
went to Y2K Hotel, Paharganj for taking room. Since no room was
available, the Manager of the said hotel referred them to KBM Hotel. They
took the room in KBM Hotel. Thereafter, they went to Paharganj market,
from where he was taken to Hotel Brij Palace in room no. 103 by NCB
officials. Thereafter, NCB officials spun a false story and falsely implicated
him in the present case. He was forced to sign in the hotel register of Brij
Palace.
5. Sonam Dava, in his statement recorded under Section 313 Cr.P.C.,
stated that he never visited Brij Palace Hotel in Paharganj on 10th January,
2013 or at any point of time. He further stated that he was apprehended by
NCB officials from Tibetan market in the morning hours of 10th January,
2013 in the presence of his brother Amar and other people. From there, he
was taken to NCB office and falsely implicated in the present case.
6. Respondents lead defence evidence and Amar, brother of Sonam
Dava, was examined as DW-1 and Ashok Kumar, owner of KVM
Crl.L.P.No.220/2018 Page 3 of 5
International Hotel, Paharganj, Delhi was examined as DW-2.
7. Learned Trial Court acquitting the respondents held that, firstly, non-
production of the log book of official vehicle by the complainant Azad
Singh goes to the root of the matter and casts shadow of doubt on the visit of
NCB officials to Brij Palace Hotel, Paharganj. Secondly, non production of
the CCTV footage of hotel casts doubt on the prosecution case since Saad
Ansari had taken the plea in his cross examination that he was picked up
from somewhere else and DW-2 Ashok Kumar stated that Saad Ansari was
staying in his hotel. Sonam Dava also took the defence that he was picked
up from Tibetan market. Neither any call connection between the
respondents was shown nor the source of drugs was verified by the NCB
officials despite the availability of phone numbers of the respondents.
There was non-compliance of Section 41 and 42 of NDPS Act. Since, it was
the admitted case of the prosecution that they had prior secret information,
provisions under Section 41 and 42 of NDPS Act were squarely applicable
and the case was not covered by Section 43 NDPS Act. Authorization
(Ex.PW-7/B) in favor of Azad Singh (PW-7) given by K.S. Chauhan (PW-8)
to conduct search/seizure was doubtful. Case property was tampered with as
evident from the testimonies of V.K. Sharma (PW-11), Chemical examiner
and S.K. Sharma (PW-16), Malkhana Incharge. When the case property was
opened in court, it was found to be in torn condition. Lastly, conviction
cannot be solely on the basis of statements under Section 67 NDPS Act in
the present case.
8. Considering the findings of the learned Additional Sessions Judge
particularly the fact that when the case property was opened in the Court, it
was not found properly deposited and sealed, this Court concurs with the
Crl.L.P.No.220/2018 Page 4 of 5
view expressed by the learned Additional Sessions Judge. Hence, the
impugned judgment acquitting the respondents cannot be said to be perverse
warranting interference of this Court.
9. Leave to appeal is dismissed.
(MUKTA GUPTA)
JUDGE
APRIL 10, 2018
‘ga’
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