Interim Order 15

Order Details: COPY OF ORDER
Pdf Text: SC No. 375/23
State Vs Neeraj Kumar etc.
FIR No. 82/23
PS Crime Branch-North Delhi
15.01.2024
Present: Ms. Promila Singh, Ld. Addl PP for State.
All accused produced from JC.
Sh. Suraj Parkash Sharma and Sh. Mayank Chauhan, Ld.
Counsels for accused Arvind.
Sh. Vivek Kumar, Ld. Counsel for accused Neeraj.
Sh. Dheeraj Sehrawat, Proxy Counsel for accused
Amrender Pandey.
Matter is at the stage of arguments on charge.
Ld. Defence Counsels for accused Arvind and Amrender
Pandey concedes the charge.
1. Ld. Counsel for accused Neeraj argued that he is a
driver by profession and he was working on the directions of his
employer and he was not aware about the alleged recovered
contraband as co-accused had directed him to take the car to Odisha.
He further argued that there is no transaction of exorbitant amount in
his bank account which indicates his involvement in the present case
and the amount which was transferred in his bank account by the
accused person, was to meet the petrol expenses.
2. Further, it is argued on behalf of accused Neeraj that the
site plan is defective as alleged recovery has been effected from
Service road, near Bhalswa Jheel, Bhalaswa Dairy at around 10:10
AM whereas as per CDR of the applicant at about 10:08:09 AM, the
location of the application was of Jahangir Puri and not of the alleged
place of recovery which reflects that accused Neeraj was not arrested
in the manner as projected in the charge sheet.
Contd….
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3. It is further argued that as per the rukka the alleged
recovery was of leaves, seeds and grasses whereas sample sent to FSL
was of flowering and fruiting vegetative which is beyond the preview
of definition of ganja as per given in NDPS Act, however, as per FSL
report, the samples were found containing ganja. The alleged
recovered contraband remained in the possession of police officials
and tampering with the same cannot be ruled out and there is every
possibility that the alleged recovered grassy, leafy material was
subsequently changed into flowers and fruits and that is why FSL
report has come up in this fashion.
4. It is also argued that accused Neeraj was not searched in
presence of Magistrate and the accused himself did not decline to be
searched before Magistrate, which is evident from notice under
section 50 NDPS Act. Hence, no offences are made out against
accused Neeraj and he is liable to be discharged from the present case.
5. Arguments heard. Record perused.
6. Accused Neeraj was apprehended alongwith Toyota
Corolla car bearing No. UP65Z4626 containing 52 Kgs of Ganja in it
which falls into the category of commercial quantity. There are money
transactions between accused Neeraj and co-accused Arvind as co-
accused Arvind transferred amount in the account accused/applicant
on many occasions.
7. As far as the argument of Ld. Defence Counsel that first
IO has described recovered contraband as grassy and leafy material
which is not covered in the definition of Ganja as per the Act, is
concerned, the sample of the contraband was containing Ganja as per
the FSL report and it is a matter of record that sampling process was
done in the presence of Ld. MM under section 52 (A) NDPS Act.
Simply because IO has described the contraband as grassy and leafy
contd....
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material would not substitute the FSL report which reflects that
recovered material was ganja.
8. Now coming to another argument qua defective notice
under section 50 NDPS Act is concerned, I do not find any merit in
the argument as the duty of the IO was to serve notice under section
50 NDPS Act and same has been duly served upon the accused. It
hardly matters as to what reply has been given by the accused
pursuant to that notice. Merely because, 'Magistrate' word has not
been mentioned in the reply, the legality of notice under section 50
NDPS Act cannot be doubted. The purpose of serving the notice was
to make the accused aware about his legal rights to be searched in
presence of gazetted Officer or Magistrate but accused has declined
for the same. Therefore, in my view there is no illegal defect in the
notice under section 50 served by the IO upon the accused.
9. As far as plea of defective site and CDR with regard to
location of accused/applicant is concerned, same are matter of trial
and accused can raise these pleas during cross examination of the
prosecution witnesses.
10. From the abovesaid discussion and material available on
record, prima facie offences under section 20 (c) / 25 / 29 NDPS Act
are made out against accused Neeraj.
11. Prima facie offences under section 29 r/w section 20 (c)
and 25 of NDPS Act are made out against accused Amrender Pandey
and offences under section 29 r/w section 20 (c) and 25 of NDPS Act
are made out against accused Arvind Kumar @ Chandan.
Separate formal charges are framed accordingly, to
which accused persons pleaded not guilty and claim trial.
Put up on 07.05.2024 and 14.05.2024.
contd....
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Complainant, duty officer, MHC (M) and IO be
summoned for 07.05.2014.
PWs mentioned at serial no. 3, 9, 14, 15, 16, 17 and
FSL expert alongwith MHC (M) and IO be summoned for
14.05.2024.
(Dhirendra Rana)
ASJ/Spcl. Judge(NDPS)
North/Rohini Courts/15.01.2024
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