Delhi District Court
State vs . 1. Gayapal, on 17 February, 2020
IN THE COURT OF AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 975/2018
In the matter of:
State Vs. 1. Gayapal,
S/o Sh. Mewa Lal
R/o Village Barhi,
PS-Latehar, Distt. Latehar,
Jharkhand.
2. Ravi
S/o Sh. Mahadev
R/o B-4/15, DLF Ankur Vihar,
Loni Distt. Ghaziabad, UP.
Permanent Address:
A-261, T-Hut, GP Block,
Pitam Pura, New Delhi.
3. Munna Kumar Jha (P.O.)
S/o Sh. Chandrawali Jha
R/o H. No. 178, Near Shiv
Mandir, Pooja Colony,
Pavi Sadna Pur,
Ghaziabad (UP).
Permanent Address:
Village Sumanaha,
PS Chakmesi, Distt. Samstipur
Bihar.
4. Vipin @ Avinash (P.O.)
S/o Sh. Ramesh Singh
Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.1/72
R/o Sunar Nagar,
Near Aswani Public School,
Phulwari Sharif, Patna Bihar.
FIR No. : 148/18
Police : Crime Branch
Station
Under : 20(b) (ii) (C)/29 NDPS Act
Sections
Date of Institution of case : 12.11.2018
Date of Arguments : 13.02.2020
Date of Judgment : 17.02.2020
JUDGMENT:
1. The case of the prosecution is that on 31.05.2018, a secret informer came to the office of IGIS, Crime Branch, Sector-17, Dwarka, New Delhi and informed ASI Mahesh Kumar that two persons namely Vipin @ Avinash resident of Patna, Bihar and Sanjay Singh resident of Chhatisgarh used to procure Ganja from Orrisa and supply in Noida through the trucks of their partner Ravinder and in Noida, Vipin's partner namely Ravi and Munna received the Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.2/72 consignment of Ganja. It is stated that secret informer further informed that a truck bearing No. CG10C3918 loaded with Ganja driven by one Gayapal a trustworthy driver of Ravinder was dispatched for Noida by Vipin and Sanjay 2-3 days before and Vipin had already reached Delhi by air but he could not arrange a godown in area of Noida, therefore they had arranged a godown in the area of Goyala Dairy, Najafgarh, New Delhi and Vipin had already left for Patna by air.
2. It was further informed by the secret informer that Ravi and Munna would go to Goyala Dairy Najafgarh, in the aforesaid truck with Gayapal for unloading the Ganja in godown and they would pass through Dwarka Link Road Golf Course, Dwarka between 5 a.m. to 6 a.m.
3. On receipt of aforesaid information, ASI Mahesh produced the secret informer before Inspector Sunil Jain, who made enquiries from secret informer and Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.3/72 after satisfying himself informed ACP Sh. Aditya Gautam telephonically, who directed to conduct raid and the same was conveyed by Inspector Sunil Jain to ASI Mahesh. Thereafter, ASI Mahesh recorded the secret information in Roznamcha vide DD No. 2 and forwarded the copy thereof to ACP/IGIS Crime Branch as per the provisions of Section 42 NDPS Act through Inspector Sunil Jain.
4. Thereafter, a raiding party was constituted by ASI Mahesh consisting of himself, another ASI Mahesh Kumar, ASI Kanwal Singh and others and the raiding party equipped with IO bag, field testing kit and electronic and spring balance scale and left the office of Crime Branch alongwith secret informer at about 4.15 a.m. in private Innova Car No. HR10V0736 after making departure entry vide DD No.3. It is stated that the raiding party reached near Goyala Dairy T-point, Golf Course Road, Dwarka at about 04.45 a.m. and on the way, as well as after reaching the spot, ASI Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.4/72 Mahesh requested some public persons in front of Best Residency Society to join the raiding party but none of them agreed to join.
5. After reaching at the spot, the Innova car was got parked at a distance of about 50 meters and driver Ct. Om Prakash was deputed on the said Innova Car and all the members of the raiding party took position at different points at about 04:55 a.m.. It is averred that at about 5:30 am, one Truck No. CG10C3918 was seen coming from the side of Golf Course and when it was at a distance of about 20-25 mtrs., the secret informer pointed out towards the truck and left the spot. It is stated that when the truck came near, it was got stopped with the help of Innova Car by bringing in front of it and accused Gayapal was found on the driver seat of the truck and co-accused Ravi and Munna Jha (PO) were also with accused Gayapal in the truck and all the accused persons were got alighted. It is stated that enquiries Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.5/72 were made by ASI Mahesh and all the accused persons were apprised about the secret information and gave his and police party's introduction to all the accused persons.
6. Thereafter, ASI Mahesh informed about their legal rights that their search could be conducted in the presence of a Gazetted Officer or a Magistrate, if so required and they can take search of police vehicle and of the members of the raiding party before their search and search of their truck.
7. Thereafter, ASI Mahesh prepared notices under Section 50 NDPS Act in duplicate and the same were given to all the accused but all of them refused to avail the aforesaid legal rights and had given written replies on the carbon copies of notices under Section 50 NDPS Act. In the meantime, some public persons gathered at the spot and ASI Mahesh requested them to join the proceedings but they all refused to join. Thereafter, ASI Mahesh took search of accused Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.6/72 Gayapal but nothing incriminating was recovered. Thereafter, search of accused Ravi and Munna Kumar Jha was taken by ASI Mahesh. It is stated that search of truck was also taken by the police, in which 28 plastic bags/katta covered with tirpal were recovered. It is stated that ASI Mahesh checked the plastic bags and on checking, ganja was recovered in all the bags. It is stated that 28 plastic bags were given S. No. 1 to 28 by ASI Mahesh and all the bags were weighed turn by turn and each bag was found 25 Kg in weight, total amounting to 700 kg Ganja. ASI Mahesh took 100 gms of Ganja from each plastic bag and the same was mixed in two samples of 1 kg 400 gms each and same was converted into two separate pullandas with the help of cloth piece by ASI Mahesh.
8. Thereafter, ASI Mahesh sealed pulanda Mark A, Mark B and all the 28 bags marked 1 to 28 with seal of MK and filled the particulars of FSL form and affixed his seal of "MK" on the FSL form. It is stated Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.7/72 that ASI Mahesh handed over his seal to ASI Mahesh Kumar and seized the aforesaid pullandas and FSL form vide seizure memo. It is stated that ASI Mahesh prepared rukka and handed over the same to ASI Kanwal Singh alongwith the FSL Form, carbon copy of seizure memo and the pullandas Mark A & B and 28 bags Mark 1 to 28 and he was directed to take truck No. CG10C3918 to PS Crime Branch with the directions to hand over the rukka to duty Officer for FIR and the remaining articles to hand over to the SHO. ASI Kanwal Singh was also directed to leave the truck in premises of the police station.
9. It is further averred that ASI Kanwal Singh left the spot along with the aforesaid articles in the aforesaid truck and reached at PS Crime Branch and handed over the rukka to ASI Jaipal Singh, who recorded the FIR No. 148/18 on the basis of the same and made his endorsement on the Rukka. It is stated that ASI Kanwal Singh presented 28 plastic bags Mark Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.8/72 1 to 28, sample pulandas Mark A & B, FSL form and carbon copy of seizure memo before SHO/Inspector Satender Sangwan, who affixed his seal 'SS' on all the aforesaid pullandas and FSL form and after making enquiries about the particulars of the FIR from ASI Jaipal, wrote the particulars thereof on the pullandas, FSL form and copy of seizure memo.
10. Thereafter, Inspector Satender Sangwan called ASI Jag Narain (MHC(M)) in his office with register No.19 and deposited all the aforesaid pullandas, FSL form and carbon copy of seizure memo with him. ASI Jag Narain made entry in register No. 19 to the aforesaid effect vide entry No.4000.
11. After the completion of proceedings at P.S. Crime Branch, ASI Kanwal Singh went to the office of IGIS alongwith the copy of FIR and original rukka and handed over the same to ASI Rajender Prasad to whom the investigation of the case was entrusted. It is stated that ASI Rajender Prasad reached the spot Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.9/72 at about 5 p.m. and ASI Mahesh apprised him about the facts of the case and produced accused persons before him. Thereafter, ASI Rajender Prasad prepared site plan at the instance of ASI Mahesh. It is stated that accused Gayapal was arrested by ASI Rajender Prasad and his personal search was conducted in which, apart from other articles, notice U/s 50 NDPS Act was recovered. Accused Gayapal was interrogated by ASI Rajender Prasad and his disclosure statement was recorded by him.
12. Thereafter, accused Ravi was arrested by ASI Rajender Prasad and his personal search was conducted in which, apart from other articles, notice U/s 50 NDPS Act was recovered. It is stated that accused Ravi was also interrogated by ASI Rajender Prasad and his disclosure statement was recorded by him.
13. It is further stated that accused Munna Kumar Jha was arrested by ASI Rajender Prasad and his Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.10/72 personal search was also conducted in which, apart from other articles, notice U/s 50 NDPS Act was recovered. Accused Munna Kumar Jha was also interrogated by ASI Rajender Prasad and his disclosure statement was recorded by him
14. After the completion of proceedings at the spot, ASI Rajender left the spot and went to P.S. Crime Branch alongwith all the accused and other staff and seized the truck and tirpal in the compound of police station vide seizure memo and deposited the same and personal search articles in the Malkhana with ASI Jag Narain, who made entries in register No.19 at S. No.4001. Thereafter, ASI Rajender Prasad had brought all the accused persons to the office of IGIS Crime Branch and produced before Inspector Sunil Jain.
15. It is further the case of prosecution that on 01.06.2018, ASI Rajender Prasad prepared report under Section 57 NDPS Act regarding arrest and sent Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.11/72 the same to ACP IGIS through Inspector Sunil Jain. It is also stated that ASI Mahesh prepared a report under Section 57 NDPS Act regarding the seizure of 700 Kg Ganja and sent the same to ACP, IGIS through PW-6 Inspector Sunil Jain. On 31.05.2018, the copy of DD No.2 was received in the Office of ACP by HC Rajeev, Reader to ACP and the same was put up by him before ACP Sh. Aditya Gautam immediately and the ACP made his endorsement on the same in encircled portion 'X'.
16. On 01.06.2018, two reports u/s 57 NDPS Act regarding recovery/seizure of 700 Kg Ganja and regarding arrest, out of which one sent by ASI Mahesh and the other sent by ASI Rajender Prasad were received in the Office of ACP by HC Rajeev, Reader to ACP and the same were put up by him before ACP Sh. Aditya Gautam immediately and the ACP made his endorsement on both the reports in encircled portion 'X'. HC Rajeev made entries in the Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.12/72 diary register regarding the receipt of DD No.2 and special reports.
17. On 01.06.2018, the exhibits alongwith FSL form were sent to FSL, Rohini through ASI Kuldeep vide road certificate No. 314/21 and the same were deposited by him in the FSL. It is averred that the sample pulandas were examined by Dr. Subhash Chandra, Senior Scientific Officer, FSL, Rohini. It is stated that on 01.06.2018, police custody remand of accused persons was taken and all the accused gave supplementary disclosure statements which were recorded by ASI Rajender Prasad.
18. During investigation, ASI Rajender Prasad verified the ownership of Truck No. CG10C3918 and the Truck was belonging to Sh. Ravinder Kumar. ASI Rajender Prasad took print of photographs of accused Vipin @ Avinash (PO) from the facebook account.
19. After completion of investigation, the charge sheet was filed in the court by IO against accused Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.13/72 Gayapal, Ravi and Munna Kumar Jha and accused Vipin @ Avinash was absconding.
20. During proceedings of the case, accused Munna Kumar Jha was granted interim bail, however, he did not surrender on expiry of period of interim bail, hence NBW against him with notice to his surety were issued. Even after issuance of NBW, he remained absconding, hence process U/s 82/83 Cr. P. C. against accused Munna Kumar Jha was issued and thereafter, he was declared Proclaimed Offender vide order dated 04.01.2019. His surety bonds were forfeited and surety amount was deposited in the court.
21. During trial of the present case, presence of accused Avinash @ Vipin could not be procured despite issuance of coercive process, hence after serving of process U/s 82/83 Cr. P. C., accused Avinash @ Vipin was declared Proclaimed Offender vide order dated 11.02.2019.
Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.14/72 Charge against the accused:
22. Vide order dated 12.02.2019, the charge for the offence under Section 20(b) (ii) (C)/29 of the NDPS Act was framed against the accused Gayapal and Ravi to which they pleaded not guilty and claimed trial.
Witnesses examined:
23. The prosecution examined following witnesses in support of its case who are as follows:-
PW1 is ASI Jai Pal Singh. He is a witness who recorded FIR in the present case on the basis of rukka sent by ASI Mahesh Kumar through ASI Kanwal Singh. The copy of FIR was proved as Ex. PW-1/A. PW2 is Sh. Yatin Chawla, Nodal Officer, Reliance JIO. He brought the certified CAF in respect of phone No. 7992266954 which is in the name of Mr. Vipin Kumar. Same was proved as Ex. PW-2/A. He also Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.15/72 brought the CDR of said number which was proved as Ex. PW-2/B. PW3 is ASI Mahesh Kumar. He is one of the members of raiding team organized by ASI Mahesh Kumar (No. 488/Crime) and he deposed regarding investigation done by team in this case in the form of apprehending of accused on the basis of secret informer, serving of notice U/s 50 of NDPS Act, recovery of contraband, seizure of same and other proceedings at spot. This witness proved various documents in his examination in chief. PW4 is Sh. Ajay Kumar, Nodal Officer, Bharti Airtel Ltd. He brought the certified copy of CAF in respect of mobile No. 8114544722 which is in the name of Ram Bharosa Singh. The same was proved as Ex. PW-4/A and ID proof as Ex. PW4/B. He also proved certified copy of E-KYC form in respect of mobile No. 9971779067 which is in the name of Raja Kumar Mishra.
Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.16/72 PW5 is Dr. Subhash Chandra, Sr. Scientific Officer, FSL Rohini. He deposed that one sealed cloth parcel was received in FSL and was marked to him and he checked the seals on same which were found intact. He deposed that on examination, Ex. A was found to be ganja.
PW6 is Inspector Sunil Jain. He deposed that ASI Mahesh Kumar produced a secret informer before him in his office and apprised him with the secret information and after making inquiries from secret informer and satisfying himself, he informed Sh. Aditya Gautam, ACP telephonically who directed to get a raid conducted by ASI Mahesh. He further deposed that ASI Mahesh recorded the secret information in Rojnamcha and he forwarded the same to ACP. The carbon copy of same was Ex. PW-6/A. He further deposed that on 01.06.2018, ASI Mahesh submitted a special report U/s 57 NDPS Act regarding seizure of 700 kg gaanja and ASI Rajesh submitted Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.17/72 report U/s 57 NDPS Act regarding arrest of accused persons and he forwarded the reports to ACP. PW7 is Sh. Dinesh Mehtani, Sr. Manager, Air India Commercial Department. He deposed that on requisition of police through notice U/s 91 Cr. P. C., he furnished the requisite information with his letter which was Ex. PW-7/A and the details of passenger as Ex. PW-7/B. PW8 is Sh. Raja Kumar Mishra. He deposed that he has two mobile phone no. 8750777893 and 8447093116 and he never got issued mobile No. 9971779067 and he does not know who had taken the said number and who was using the same and his ID has been misused.
PW9 is ASI Mahesh Kumar (No. 488/Crime). He is main witness of prosecution who received the secret information in his office. He deposed regarding production of secret informer before senior police officer, directions for constituting raiding team, Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.18/72 apprehending accused persons, recovery of contraband from truck and other investigations done by him in this case.
PW10 is Sh. Pawan Singh, Alternate Nodal Officer Vodafone Idea Ltd. He brought the CAF of mobile phone No. 9953746103 which was in the name of Ravi. The same was proved as Ex. PW-10/A, CDR of same as Ex. PW-10/B, certificate U/s 65 (B) as Ex. PW-10/C and forwarding letter as Ex. PW-10/D. PW11 is Sh. Ravinder Kumar. He is a witness who was registered owner of truck No. CG10C3918. He deposed that he has 6-7 other trucks and 3-4 permanent drivers and accused Gayapal is also one of them. He further deposed that on 23.05.2018, accused Gayapal started on his truck from Raipur loaded with Cement and on 25.05.2018, accused informed him on phone that he had loaded cables in his truck from Raipur for Mathura and thereafter for many days accused Gayapal could not be contacted Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.19/72 and on this, he talked to his son Akshay Kumar Pal and he came to know that his said truck was seized by police of Crime Branch, Delhi with Ganja and later on police recorded his statement. PW12 is HC Rajeev. He deposed that he was posted as Reader to ACP and he produced various report and DDs before ACP for his endorsement and he made entries in this regard in diary register. PW13 is ASI Kuldeep. He deposed that he had taken the sealed pulandas and FSL form to FSL on the instructions of senior police officer and deposited the same in FSL and acknowledgement of same was deposited with MHC(M).
PW14 is ASI Jag Narayan. He proved various entries made in register by him. The Entry at Sl. No. 4000 was proved as Ex. PW-14/A and the Entry at Sl. No. 4001 as Ex. PW-14/B. PW15 is ASI Kanwal Singh. He is also one of the members of raiding team and he deposed as per Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.20/72 investigation done by team members in his presence in this case.
PW16 is Inspector Satender Sangwan. He deposed that ASI Kanwal of IGIS Crime Branch produced 28 sealed plastic bags and he checked the seals and he enquired the particulars of the FIR from the Duty Officer and filled the particulars of FIR on all the pullandas, FSL form and copy of seizure memo and he called the MHC(M) for making entry in register No. 19.
PW17 is ASI Rajender Prasad. He deposed that investigation of present case was assigned to him by senior officer and he deposed regarding further investigation done by him in this case. The prints of photographs of accused Vipin were proved as Ex. PW- 17/A and Ex. PW-17/B. He also proved other documents.
24. Thereafter, Prosecution Evidence was closed Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.21/72 vide order dated 05.02.2020 and matter was posted for recording of statement of accused U/s 313 Cr. P. C.
25. Thereafter, application was moved by Ld. Defence counsel for accused Gayapal U/s 311 Cr. P. C. seeking recall of ASI Mahesh. The said application was allowed and witness ASI Mahesh was recalled and cross-examined.
26. Statements of accused persons U/s 313 Cr. P. C. were recorded on 13.02.2020 whereby all the incriminating evidence was put to them to in which they denied all the allegations and pleaded their innocence. It was also stated that police obtained their signatures on blank and semi printed papers.
27. I have considered the submissions of Ld. APP for the state and Ld. Defence counsels and have gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence. Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.22/72 ARGUMENTS OF PROSECUTION:
28. It is argued by Ld. APP for state that this is a case of recovery of huge quantity of gaanja. It is stated that both accused Gayapal and Ravi were apprehended on receipt of secret information by ASI Mahesh Kumar which was brought in the knowledge of senior police officers who directed to conduct the raid. It is averred that during search of truck, 700 kg gaanja was found concealed in 28 bags. It is stated by Ld. APP for State that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of the accused persons beyond reasonable doubt. It is further submitted that all the statutory provisions of NDPS Act were duly complied by the Investigating Officer and the members of raiding team. It is further submitted that legal rights of the accused were also explained to them.
Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.23/72 ARGUMENTS OF DEFENCE:
29. On the other hand, Ld. Counsels for accused persons vehemently argued that the accused are innocent. It is argued that the testimonies of prosecution witnesses are full of omissions and improvements and in view of improvements made by PWs, their evidence has lost credibility and cannot be relied upon to give finding of guilt of accused persons. It is argued that two samples as per settled guidelines of law were not drawn by police officer of raiding team and only single sample of contraband was taken from each bag instead of taking two samples as per settled guidelines. It is further argued that samples of all 28 bags were mixed and thereafter two collective samples were prepared thus it cannot be said that all the 28 bags were having gaanja. It is also argued that public persons in this case were not joined by raiding team while Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.24/72 conducting proceedings at spot. It is also argued that the present accused has been falsely implicated.
30. In rebuttal, the Ld. APP for the state submitted that the contradictions in the testimony of material witnesses are minor and natural and does not affect the case of the prosecution. It is further argued that there is sufficient material and evidence on record to prove the guilt of accused.
JUDGMENT RELIED UPON ON BEHALF OF STATE.
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors.
2002 (2) CC Cases (SC) 58;
2) Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783;
3) Delias Christopher Vs. Customs 2004 (3) JCC 147;
4) State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103;
5) State of Punjab Vs. Baldev Singh (1999) 3 SCC
977. Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.25/72
6) Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77
7) State of Haryana Vs. Mai Ram, (2008) 8 SCC 292;
10) Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652;
11) Tahir Vs. State 1996 (3) SCC 338;
12) S. K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal having Criminal Appeal No. 459 of 2017 dated 05.09.2018 passed by Hon'ble Supreme Court of India;
13) State of Punjab Vs. Baljinder Singh passed by Hon'ble Supreme Court of India dated 15.10.2019. JUDGMENT RELIED UPON ON BEHALF OF ACCUSED.
1) D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416;
2) Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1;
3) Arif Khan @ Agha Khan Vs. State of Uttarakhand, Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.26/72 having CA No. 273/07 decided by Hon'ble Supreme Court of India;
4) Dharambir Vs. State having CRL. A. 658/17, decided by Hon'ble High Court of Delhi;
5) Joseph Vs. State of Kerala 2002 Crl. L. J. 3203 passed by Hon'ble Kerala High Court.
31. I have considered the submissions of counsels for accused and Ld. APP for the state and gone through the documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence. FINDINGS:
32. From perusal of record, it is revealed that this is a case of huge quantity of gaanja from accused persons on the basis of receipt of secret information. It is the case of prosecution that on 31.05.2018, a secret informer came to the office of IGIS, Crime Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.27/72 Branch, Sector-17, Dwarka, New Delhi and informed ASI Mahesh Kumar that two persons namely Vipin @ Avinash resident of Patna, Bihar and Sanjay Singh resident of Chhatisgarh used to procure Ganja from Orrisa and supply in Noida through the trucks of their partner Ravinder and in Noida, Vipin's partner namely Ravi and Munna received the consignment of Ganja. It is stated that secret informer further informed that a truck bearing No. CG10C3918 loaded with Ganja driven by one Gayapal a trustworthy driver of Ravinder was dispatched for Noida by Vipin and Sanjay 2-3 days before and Vipin had already reached Delhi by air but he could not arrange a godown in area of Noida, therefore they had arranged a godown in the area of Goyala Dairy, Najafgarh, New Delhi and Vipin had already left for Patna by air.
33. It was further informed by the secret informer that Ravi and Munna would go to Goyala Dairy Najafgarh, in the aforesaid truck with Gayapal for Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.28/72 unloading the Ganja in godown and they would pass through Dwarka Link Road Golf Course, Dwarka between 5 a.m. to 6 a.m. The said information was brought to the knowledge of senior police officer who directed to take action and thus raiding team was constituted and on reaching at spot, the accused were apprehended with truck loaded with bags and on checking, 700 kg gaanja was recovered concealed in 28 bags and consequently samples were drawn.
34. Records of the present case reveal that the accused stands charged for the conscious possession of 700 kg gaanja which is a commercial quantity. The stringent provisions are provided under the act qua the punishment. The scheme of NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguard ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, balance must be struck between the need of the law and the Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.29/72 enforcement of such law on the one hand, the protection of citizen from oppression and injustice on the other hand. The provisions are intended for providing certain checks on exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband.
35. In the present case, the accused persons were apprehended and were found in possession of gaanja kept in bags in truck. Hence, it cannot be stated that he was not in conscious possession of the contraband i.e. Gaanja.
36. Now, this court will deal with the testimonies of prosecution witnesses recorded in the court.
37. PW1 ASI Jai Pal Singh is a witness who recorded FIR in the present case on the basis of rukka sent by ASI Mahesh Kumar through ASI Kanwal Singh. The copy of FIR was proved as Ex. PW-1/A, his endorsement on rukka as Ex. PW-1/B ad his Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.30/72 certificate U/s 65 (B) of Indian Evidence Act as Ex. PW-1/C. This witness was not cross-examined by Ld. Defence counsels.
38. PW2 Sh. Yatin Chawla, Nodal Officer, Reliance JIO brought the certified CAF in respect of phone No. 7992266954 which is in the name of Mr. Vipin Kumar. Same was proved as Ex. PW-2/A. He also brought the CDR of said number which was proved as Ex. PW-2/B, his certificate U/s 65 (B) of Indian Evidence Act as Ex. PW-2/C and Cell ID Chart of said number as Ex. PW- 2/D. This witness was also not cross-examined by Ld. Defence counsels.
39. PW3 ASI Mahesh Kumar No. 249/Crime is one of the members of raiding team organized by ASI Mahesh Kumar (No. 488/Crime) and he deposed regarding investigation done by team in this case in the form of apprehending of accused on the basis of secret informer, serving of notice U/s 50 of NDPS Act, recovery of contraband, seizure of same and other Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.31/72 proceedings at spot. He proved various documents in support of case of prosecution. The carbon copy of notice U/s 50 NDPS Act of accused Gayapal was proved as Ex. PW-3/A, his reply thereon as Ex. PW- 3/A1, carbon copy of notice U/s 50 NDPS Act of accused Ravi as Ex. PW-3/B and his reply thereon as Ex. PW-3/B1, carbon copy of notice U/s 50 NDPS Act of accused Munna as Ex. PW-3/C and his reply thereon as Ex. PW-3/C1, non-recovery memos of accused Gayapal, Ravi and Munna Kumar Jha were proved as Ex. PW-3/D, PW-3/D1 and PW-3/D2 respectively, seizure memo of FSL form and pullandas as Ex. PW-3/E, Arrest memo of accused Gayapal as Ex. PW-3/F, his personal search memo as Ex. PW-3/F1 and his disclosure statement as Ex. PW-3/F2, Arrest memo of accused Ravi as Ex. PW-3/G, his personal search memo as Ex. PW-3/G1 and his disclosure statement as Ex. PW-3/G2, Arrest memo of accused Munna Kumar Jha as Ex. PW-3/H, his personal search Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.32/72 memo as Ex. PW-3/H1 and his disclosure statement as Ex. PW-3/H2, seizure memo of jamatalashi articles and truck in question as Ex. PW-3/H3, the supplementary disclosure statement of accused Gayapal as Ex. PW-3/H4, the supplementary disclosure statement of accused Ravi as Ex. PW-3/H5, the supplementary disclosure statement of accused Munna Kumar as Ex. PW-3/H6. This witness was cross- examined by Ld. Defence counsel, however, no dent could be created to his testimony and he deposed correctly regarding service of notice U/s 50 of NDPS Act, seizing of huge quantity of ganja from truck and sampling done at spot.
40. PW4 Sh. Ajay Kumar, Nodal Officer, Bharti Airtel Ltd. brought the certified copy of CAF in respect of mobile No. 8114544722 which is in the name of Ram Bharosa Singh. The same was proved as Ex. PW-4/A and ID proof as Ex. PW4/B. He also proved certified copy of E-KYC form in respect of mobile No. Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.33/72 9971779067 which is in the name of Raja Kumar Mishra. The same was Ex. PW-4/C. The certified CDRs in respect of above numbers were proved as Ex. PW- 4/D and PW-4/E. The certificate U/s 65 (B) of Indian Evidence Act regarding CDR of said number as Ex. PW-4/F. This witness was also not cross-examined by Ld. Defence counsels.
41. Another material witness produced by prosecution is PW5 Dr. Subhash Chandra, Sr. Scientific Officer, FSL Rohini. He deposed that one sealed cloth parcel was received in FSL and was marked to him and he checked the seals on same which were found intact. He deposed that on examination, Ex. A was found to be ganja. The detailed report was proved as Ex. PW-5/A. This witness was also not cross-examined by Ld. Defence counsels. So the report of FSL has been duly proved on record.
42. PW6 Inspector Sunil Jain in his examination in Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.34/72 chief deposed that ASI Mahesh Kumar produced a secret informer before him in his office and apprised him with the secret information and after making inquiries from secret informer and satisfying himself, he informed Sh. Aditya Gautam, ACP telephonically who directed to get a raid conducted by ASI Mahesh. He further deposed that ASI Mahesh recorded the secret information in Rojnamcha and he forwarded the same to ACP. The carbon copy of same was Ex. PW-6/A. He further deposed that on 01.06.2018, ASI Mahesh submitted a special report U/s 57 NDPS Act regarding seizure of 700 kg gaanja and ASI Rajesh submitted report U/s 57 NDPS Act regarding arrest of accused persons and he forwarded the reports to ACP and copies of same were proved as Ex. PW-6/B and PW-6/C. In his cross-examination, he denied all the suggestions put to him and thus no dent is created to his deposition also.
43. PW7 Sh. Dinesh Mehtani, Sr. Manager, Air India Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.35/72 Commercial Department is a witness who deposed that on requisition of police through notice U/s 91 Cr. P. C., he furnished the requisite information with his letter which was Ex. PW-7/A and the details of passenger as Ex. PW-7/B. So he is a witness who furnished the details as sought by police regarding travel of accused Avinash Kumar.
44. PW9 ASI Mahesh Kumar (No. 488/Crime) is the most relevant and material witness of prosecution who received the secret information in his office. He deposed regarding production of secret informer before senior police officer, directions for constituting raiding team, apprehending accused persons, recovery of contraband from truck and other investigations done by him in this case. The attested copy of DD No. 3 was proved as Ex. PW-9/A, rukka as Ex. PW-9/B and site plan as Ex. PW-9/C. In his examination in chief, he deposed specifically regarding receipt of secret information which was Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.36/72 brought to the knowledge of senior police officer and after their due satisfaction, they ordered for taking action. He further deposed specifically regarding organising raid, apprehending the accused persons, serving them with notice U/s 50 of NDPS ACT thereby apprising them about their legal rights to be served in the presence of any Gazetted Officer or Magistrate but all the accused persons refused to avail the said legal rights. From perusal of their cross-examination also, it is clear that nothing contrary has come which favours the accused persons.
45. PW10 Sh. Pawan Singh, Alternate Nodal Officer Vodafone Idea Ltd. brought the CAF of mobile phone No. 9953746103 which was in the name of Ravi. The same was proved as Ex. PW-10/A, CDR of same as Ex. PW-10/B, certificate U/s 65 (B) as Ex. PW-10/C and forwarding letter as Ex. PW-10/D. He also brought the record of mobile no. 9990196490. The certified copy of EKYC was proved as Ex. PW-10/E, CDR as Ex. PW- Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.37/72 10/F and certificate U/s 65 (B) as Ex. PW-10/G. In his cross-examination, he denied suggestion that he has produced false and fabricated record at the instance of IO.
46. PW11 Sh. Ravinder Kumar is the registered owner of truck No. CG10C3918. In his examination in chief, he deposed that he has 6-7 other trucks and 3- 4 permanent drivers and accused Gayapal is also one of them. He further deposed that on 23.05.2018, accused Gayapal started on his truck from Raipur loaded with Cement and on 25.05.2018, accused informed him on phone that he had loaded cables in his truck from Raipur for Mathura and thereafter for many days accused Gayapal could not be contacted and on this, he talked to his son Akshay kumar pal and he came to know that his said truck was seized by police of Crime Branch, Delhi with Ganja and later on police recorded his statement. The superdaginama for releasing of truck was proved as Ex. PW-11/A and Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.38/72 photographs of truck as Ex. PW-11/A1 to A3. In his cross-examination, he deposed that "No record of drivers is being maintained in my office. No documentary record is prepared whenever any driver takes the truck from the transport office. I used to park my 6 to 7 trucks near at Transport office. I used to be available at my office which is near to the transport office. I do not pay the salary to my drivers in written form. It is wrong to suggest that accused Gayapal is not my driver and due to this reason, I have no document proof which can show that he is my driver".... From his above discussed cross-examination, it is clear that this witness has also supported the case of prosecution apart from other prosecution witnesses.
47. PW12 HC Rajeev deposed that he was posted as Reader to ACP and he produced various report and DDs before ACP for his endorsement and he made Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.39/72 entries in this regard in diary register. Endorsement on DD No. 2 was proved as Ex. PW-12/A and his entry No. 701 in this regard as Ex. PW-12/B, endorsement on reports of seizure and arrest were proved as Ex. PW-12/C and Ex. PW-12/D and entries No. 706 and 707 as Ex. PW-12/E.
48. PW13 ASI Kuldeep deposed that he had taken the sealed pulandas and FSL form to FSL on the instructions of senior police officer and deposited the same in FSL and acknowledgement of same was deposited with MHC(M). In his cross-examination, he admitted that the FSL form was in a sealed envelope or that he made the departure and arrival entries at IGIS office in his handwriting and he signed in register No. 19 and column No. 7 while taking sample from MHC(M). So sending of samples to FSL stands duly proved.
49. Another star witness of prosecution is PW14 ASI Jag Narayan who proved various entries made in Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.40/72 register by him. The Entry at Sl. No. 4000 was proved as Ex. PW-14/A and the Entry at Sl. No. 4001 as Ex. PW-14/B. He also deposed that sealed pullanda with FSL form was sent to FSL vide RC No. 314/21 and copy of same was Ex. PW-14/C and receipt of FSL as Ex. PW-14/D.
50. PW15 ASI Kanwal Singh is also one of the members of raiding team and he deposed as per investigation done by team members in his presence in this case.
51. PW16 Inspector Satender Sangwan deposed that ASI Kanwal of IGIS Crime Branch produced 28 sealed plastic bags and he checked the seals and he enquired the particulars of the FIR from the Duty Officer and filled the particulars of FIR on all the pullandas, FSL form and copy of seizure memo and he called the MHC(M) for making entry in register No.
19. The attested copy of entry made in rojnamcha regarding proceedings vide DD No. 19 was proved as Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.41/72 Ex. PW-16/A. In his cross-examination also nothing contrary has come and he denied all the suggestions put to him.
52. PW17 ASI Rajender Prasad is last and another material witness of prosecution who deposed that investigation of present case was assigned to him by senior officer and he deposed regarding further investigation done by him in this case. The prints of photographs of accused Vipin were proved as Ex. PW- 17/A and Ex. PW-17/B, the attested copy of relevant documents given by Transport Authority is Ex. PW- 17/C, the attested copy of DD No. 21 A as Ex. PW- 17/D, attested copy of DD No. 2 as Ex. PW-17/D1, attested copy of DD No. 18 as Ex. PW-17/D2 and attested copy of DD No. 20 as Ex. PW-17/D3.
53. So from above discussion, it is observed that all material documents have been duly exhibited and proved by prosecution as per law.
54. PW-3 ASI Mahesh Kumar during his examination Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.42/72 in chief recorded on 17.12.2019 deposed that "On the way ASI Mahesh Kumar had requested some public persons near Golf Link Residency Society and in front of Best Residency Society near T-point Goyala Dairy for joining the raiding party after telling them about the secret information. None for the public persons joined and went away telling their excuses and without disclosing their name and address." From the perusal of above deposition, it is crystal clear that passerby /public persons who were present, were asked to join the investigation by the IO and efforts were made by IO to join them but all of them left the spot without disclosing their names and addresses. It is further clear that notice under section 50 NDPS Act was served upon accused as per law and they were clearly informed about their legal right that if they want to be checked before any Magistrate or Gazetted Officer, they can be called at Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.43/72 the spot but they refused to be searched in front of any Magistrate or Gazetted Officer. It is further clear that accused were also informed that before their search, they can also take search of police officials present there but the accused refused to take search. So due compliance as per law was made and legal rights of the accused were explained to accused in clear terms by IO which they refused. Nothing contrary has come in his cross-examination conducted by counsel for accused.
55. This court has gone through the contents of FSL Report Ex. PW-5/A which says "On physical, microscopic, chemical and TLC examination, 'Exhibit A' was found to be "Ganja" (Cannabis). By way of this report, it is duly proved that contraband recovered from the possession of accused was ganja.
56. The counsel for accused has argued that testimony and deposition of prosecution witnesses is Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.44/72 full of omissions and improvements and in view of improvements made by PWs, their evidence has lost the credibility and cannot be relied upon to give finding of guilt against the accused. However, it is observed that contradictions in the testimony of material witnesses are minor and natural and does not affect the case of the prosecution.
57. The witnesses produced by prosecution are wholly reliable and trustworthy and nothing could be brought out in their cross-examination to discredit them as they have deposed as per their role in the investigation of the present case. The counsel for accused has argued that accused has been falsely implicated and has no connection with crime. It is observed that witnesses produced in court have no motive or reason to falsely implicate the accused in this case. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.45/72 separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons-falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
58. Even otherwise, it has been held in case of Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783 that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC 147.
59. The present case is a case of recovery of huge Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.46/72 quantity of ganja. It is not possible to plant such a huge quantity upon the accused persons. Moreover, there is no reason to falsely implicate the accused. In the case of State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, it was held that:
"The quantity was large, it was held that the question of implanting does not arise".
In the case of Sanjiv Kumar Vs. State of H. P. 2005 (1) Crimes 358 (H. P.) it was observed:
it is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person ......... police had no axe to grind in implicating the accused."
60. Further it has to be seen that accused has failed to bring on record anything showing that they were not in conscious possession of contraband item. Accused Gayapal, Ravi and Munna Kumar Jha were Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.47/72 found in possession 700 KG of ganja in the truck. On considering the facts available on record, the document, testimony of witnesses after detailed scrutiny, no doubt remain that accused were in conscious possession of ganja.
61. The Ld. Counsel for accused has argued that the notice U/s 50 NDPS Act was defective as the accused were not explained about their legal right to be searched before a Gazetted officer or Magistrate. But Ld. APP for the state has argued that notices U/s 50 of NDPS Act Ex. PW-3/A, PW-3/B and PW-3/C were served upon the accused whereby they were apprised about their legal rights. During the arguments Ld. Counsel for the accused referred the case of D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416 to contend that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence.
Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.48/72
62. Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
63. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.49/72 said Section. This issue has been settled by State of Punjab Vs. Baldev Singh (1999) 3 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.50/72 if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazette Officer or a Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was substantial compliance with the requirement of Section 50 of NDPS Act. The Court did not agree with the contention that there was non- compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.51/72 necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made.
64. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.52/72 The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction. The counsel for accused have relied upon judgment titled as Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1 wherein the Hon'ble High Court of Delhi has held as under:-
"Substantial Compliance of - Notice in the states that since there is an information as to the possession of heroin and he (accused) has been apprehended and is required to be searched, if he so desires he can first take the search of the police party - On refusal, the appellant was asked that if he so desire then his search can be taken before a Magistrate or a Gazetted Officer - This was also declined by the appellant - A perusal of the notice under Section 50 of NDPS Act and Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.53/72 the testimony of PW11 the Investigating Officer shows that the appellant was informed only about the option and not about his right of being searched before a Magistrate or a Gazetted Officer- The appellant is thus entitled to be acquitted."
65. I have perused the notices U/s 50 NDPS Act Ex. PW-3/A, PW-3/B and PW-3/C whereby accused persons were apprised that their search is to be conducted in the present case and if they want, their search could be conducted in the presence of Gazetted Officer or Magistrate, however vide their replies Ex. PW-3/A1, PW-3/B1 and PW-3/C1 on said notices, they refused to avail the same. The word mentioned in notice is "Kanooni Adhikar". The contents of whole notice are in Hindi. Moreover, accused had put their signatures on notices U/s 50 of NDPS Act and on replies in Hindi language. Not only this, but accused had put their signatures in Hindi Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.54/72 language itself only on all relevant document prepared in the present case. So there is sufficient compliance and above judgment is not applicable in the present case.
66. The prosecution witnesses are clear and consistent in their deposition about the service of notices U/s 50 of NDPS Act before taking search of accused. The notices U/s 50 of NDPS Act are proved on record and on perusal of same, it is clear that statutory rights of accused in this regard were clearly explained to them. By virtue of these notices, the accused were apprised of their legal rights qua their search in the presence of a Gazetted Officer or a Magistrate. However, the accused declined to avail the said right. So, there is no defect with respect to section 50 of NDPS Act. Even otherwise, recovery of contraband in the present case was not effected from the person of accused but from truck, hence effect of Section 50 of NDPS Act losses its significance. In Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.55/72 these circumstances, the judgment titled as Arif Khan @ Agha Khan Vs. State of Uttarakhand, having CA No. 273/07 decided by Hon'ble Supreme Court of India and Dharambir Vs. State having CRL. A. 658/17, decided by Hon'ble High Court of Delhi are not applicable to the facts of the present case. Even otherwise, Ld. APP for the State has relied upon judgment titled as S. K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal having Criminal Appeal No. 459 of 2017 dated 05.09.2018 where Hon'ble Mr. Justice J. Dhananjay Y Chandrachud of Hon'ble Supreme Court has upheld the conviction in a case where recovery was made not in person of accused but from the bag and section 50 of NDPS Act was found to be not applicable and certain interpretation was carried out. Reliance is placed upon latest judgment titled as State of Punjab Vs. Baljinder Singh passed by Hon'ble Supreme Court of Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.56/72 India dated 15.10.2019 whereby Hon'ble Court has held that "As regards applicability of the requirements under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises."
67. The counsel for the accused could not find any flaw in the usage of the seal while sealing the case property. The movement of the contraband items to the Malkhana is also duly proved. Dent could not be created in the statement of the witnesses by counsel for accused. So, nothing doubtful has been brought on record by the accused against the testimonies of the witnesses produced by the prosecution.
68. In the light of consistent and reliable testimony of prosecution witnesses, the defence taken by the accused is found to be improbable which otherwise has not been substantiated by them either by Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.57/72 examining themselves on oath or by leading any cogent evidence in their defence.
69. In present case, all the procedural safeguards provided under a statute have been strictly complied with. The prosecution has discharged its burden of proving its case against the accused beyond all reasonable doubt. There is no question of conviction of the accused on a misguided, suspicion. This case is not based on conjectures or surmises.
70. It is trite that non-joining of public witnesses itself can not become a ground for acquittal if the case of prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution can not be held to be vulnerable for non-examination of persons who were not official witnesses. In such cases, if the statements of official witnesses Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.58/72 corroborate the proceedings conducted, the case of the prosecution can not be disbelieved. This position was reaffirmed by the Apex Court in State, Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652, wherein it was held that :
".... Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police, the court Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.59/72 could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
It is further held in same judgment that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution".
71. Moreover, recovery in the present case was effected at about 05.30 a.m. in early morning hours and the public witnesses were not easily available at that time and circumstances would have been Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.60/72 different, if recovery was effected in day light or evening because at that time, there is possibility of easy availability of public witnesses. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court proceedings. The non joining of public witnesses is not fatal to the case as otherwise the case is proved by way of consistent and cogent evidence. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the opinion that there is no reason to discredit the convincing testimony of prosecution witnesses. This is also fortified by the judgment of Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under:-
"6....... No infirmity attaches to the testimony of police officials, merely because they belong to the police force Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.61/72 and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.62/72
72. Before parting further, from the arguments of Ld. Defence counsel, one important thing which has emerged is regarding sampling done in the present matter by IO. It is very material to note here that as per deposition of witnesses, the 28 samples of 100 grams each from recovered ganja was taken and same were mixed up and thereafter two samples of 1 kg 400 grams each were drawn and sent to FSL for report. So in view of the deposition of witnesses regarding taking of samples of ganja, it cannot be said that all the recovered 28 bags were containing ganja because in the present scenario, there is possibility that some bags may not be having ganja and to avoid this confusion, IO should not have mixed the samples taken from all the 28 bags and in that eventuality the expert opinion from FSL regarding contents of each 28 bags cannot be obtained. Rather, in cross-examination of one of the recovery witnesses, it has come that sample was drawn only Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.63/72 by taking contraband from upper surface of bag. Reliance can be placed upon judgment titled Joseph Vs. State of Kerala 2002 Crl. L. J. 3203 passed by Hon'ble Kerala High Court wherein it was held that "Narcotic Drugs and Psychotropic Substance Act (61 of 1985) S. 52-A, Search and seizure of the contraband-preparation of the samples- packets seized from two accused- contents of all the packets mixed up by ASI and them samples taken which was to be Ganja- No exclusive sample collected and contraband weighed from packets in possession of each of accused - Thus, preparation of the samples and weighment of Ganja done is an improper and illegal manner - Proceedings vitiated". This judgment is fully applicable to the facts of the case because samples of contraband from each bag were required to be sent for FSL examination and the manner of sampling done in the present case is not Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.64/72 sufficient to hold and establish that all the 28 bags were having ganja because though IO had drawn sample from all the 28 bags of contraband but he mixed all the samples and made 2 samples. So mixing of all the samples cannot prove that whole contents of each bag were of ganja or not.
73. Even otherwise, the guidelines of the Hon'ble Supreme Court vide judgment dated 28.01.2016 in appeal No. 652/2012 titled as Union of India Vs. Mohan Lal and Anr. has also not been followed in this case.
74. This is a significant weakness in the prosecution case with regard to drawing of samples. In case of Basant Rai Vs. State 2012 (6) AD (Delhi 707), Hon'ble High Court has dealt with the issue of drawing of sample and emphasised the need of true representative samples. Reliance was placed in the case of Gaunter Edwin Kirscher Vs. State of Goa 1993 (3) SCC 145 wherein this issue was discussed Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.65/72 by the Hon'ble Supreme Court and it was observed as under:-
"If it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination".
75. In the said judgment, the Hon'ble High Court had also observed in para No. 27 as under:
"For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substance of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.66/72 prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative".
76. In view of the aforesaid facts and circumstances, it cannot be said that all the 28 recovered bags were having contraband substance i.e. ganja. Mode of drawing the sample is therefore, defective. It is difficult to ascertain what was the total quantity of ganja. Whether it was of commercial quantity or intermediate. In the cases of such a nature, where severe punishment is provided for offences, this type of doubtful situation with regard to quantity of contraband substance make the prosecution weak.
77. Though recovered contraband in the present case is 700 kg Ganja but it has to be kept in mind Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.67/72 that as per deposition of witnesses, it was containing stems, leaves and flowers of plant thus in these circumstances, there is another important point which requires to be taken into account. The relevant portion of section 20 of the NDPS Act is as follows "Whoever, in contravention of any provision of this act or any rule or order made or condition of licence granted thereunder:-
a) cultivates any cannabis plant; or
b) produces, manufactures, possess, sells, purchases, transports, imports inter-state, exports inter-state or uses cannabis, shall be punishable when quantity involved is lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extent to one lakh rupees.
Ganja has been defined U/s 2 (b) of the Act which is reproduced as under:-
Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.68/72
2 (iii) "Cannabis (hemp)" means -
(a) Charas, that is, the separated resin, in whatever form whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
b) Ganja, that is, the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be kwno or designated.
c) Any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;
d) "Cannabis plant" means any plant of the genus cannabis."
78. From the combined reading of section 20 and 2
(iii) (b) of the Act, it is clear that Ganja is flowering of fruiting tops of the cannabis plant (excluding seeds Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.69/72 and leaves when not accompanied by the tops). However, the prosecution has not been able to show as to what was the actual quantity of flowering of fruiting tops of cannabis plant in the recovered bags.
79. In these circumstances, due to following reasons i.e.
i) The samples were taken only from upper surface of the recovered bags and it is not clear as to what was lying beneath the upper surface or the other contents of the bag;
ii) The samples taken from bags in question were mixed and actual quantity of contraband is not ascertainable and only that part which has been treated as sample and from which contents were sent to FSL i.e. 2 kg 800 gm can be considered;
iii) The drawing of samples was not done as per guidelines given in case of Union of India Vs. Mohan Lal (supra) by Hon'ble Supreme Court of Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.70/72 India;
80. It cannot be said that whole of the contents of bags were ganja and this court is left with no option other than to consider the recovered quantity in this case only of the sample drawn which is 2 kg 800 gm ganja and same is an intermediate quantity.
81. So prosecution failed to prove its case for the charged offence U/s 20 (b) (ii) (C) but prosecution is successful in proving the case against both the accused persons for the offence U/s 20 (b) (ii) (B) and 29 NDPS Act. Therefore, in view of the above observation, this court has come to the conclusion that prosecution has not been able to prove that recovery in this case was of commercial quantity. Rather, court is left with no other option but to treat the recovered quantity as intermediate quantity.
82. Hence, considering the overall facts and circumstances of the present, the accused Gayapal and Ravi are held guilty for commission of offences Sessions Case No. 975/18 State Vs. Gayapal & Ors. Page No.71/72 U/s 20 (b) (ii) (B) read with section 29 of NDPS Act.
83. Case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. The case will be re-opened as and when accused Vipin @ Avinash and Munna Kumar Jha are produced after their arrest or brought before the court.
84. The counsel for convicts wants to address arguments on the point of sentence today itself. Heard. Let the matter be put up for arguments and order on sentence after lunch session today i.e. on Digitally signed by 17.02.2020. AJAY AJAY GOEL GOEL Date:
2020.02.20 16:28:52 +0530 Pronounced in the open court. (AJAY GOEL) Dated: 17.02.2020 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
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