Delhi High Court
Peeraswmi vs State Nct Of Delhi [Along With Crl. ... on 3 April, 2007
Equivalent citations: 139(2007)DLT456
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
1. By this common judgment, I shall dispose of above two appeals preferred against the common judgment dated 10.04.2006 passed by learned Special Judge under Narcotic Drugs and Psychotropic Substances Act (in short 'the Act') whereby he convicted both the appellants under Section 20 of the Act. Both appellants are husband and wife. Appellant Peeraswmi was sentenced to undergo imprisonment for six months since the quantity allegedly recovered from him was only .035 gms of smack being a small quantity. The learned Special Judge, however, sentenced appellant Chambai to undergo Rigorous Imprisonment for 10 years and fine of Rs.1 lac since the alleged recovery of charas made from her was about 5' kg , being commercial quantity.
2. Briefly, facts relevant for purpose of deciding these two appeals are that Sub Inspector Raj Kumar, posted in Special Staff South Delhi, received a secret information through a secret informer that Peeraswmi and his wife Chambai used to deal in charas and smack at their residence X-309, Camp No. 1, J.J. Colony, Nangloi, Delhi. He reduced this information into writing vide DD No. 4 (Ex.PW5/A) and disclosed this information to Inspector Ashok Tyagi, in charge Special Cell. Inspector Ashok Tyagi conveyed the said information to higher officials and organized a raiding party comprising of police officials and one Lady Head Constable Veena. The raiding party along with the secret informer went to Peera Garhi Chowk where some public persons were asked to join the raiding party and one public person named Subash agreed to join the raiding party. The raiding party along with the public person Subash (PW-4) went to the house of the appellant at X-309, Camp No. 1, J.J.Colony, Nangloi, Delhi. Appellant Peeraswmi was standing in the Verandah and he was apprehended at the pointing out of the secret informer. Sub Inspector Raj Kumar told the appellant the they were having information about his having smack and if he would like, he could be searched before a Magistrate or a Gazetted Officer and a notice under Section 50 of the Act was served upon him to this effect. It is alleged that the appellant opted to be searched before a Gazetted Officer. Inspector Ashok Tyagi contacted ACP Rattan Singh and requested him to reach the spot. At about 1.15 pm ACP Rattan Singh reached the spot. He disclosed his identity of being a Gazetted Officer and on his direction search of the appellant Peeraswmi was undertaken and smack was recovered from under his shirt. On weighing, the smack was found to be 500 gms. Out of this, a sample of 10 gm was taken and sealed and remaining smack was also sealed. At the same time, other appellant Chambai was found present in the side room of the house. She was trying to conceal a bag held by her. Lady Head Constable Veena was keeping a watch on her. A notice under Section 50 of the Act was served upon her. She also opted to be searched before a Gazetted Officer and she was searched before the ACP Rattan Singh. The recovery of 5' kg of charas was made from the bag held by her in her hand. The charas was in the form of slabs. One slab of 500 gms was taken as sample and remaining charas was sealed. The sample was separately sealed. The samples of smack and charas were seized and a rukka was sent for registration of an FIR. Subsequent investigation was handed over to Assistant Sub Inspector Jai Prakash. On completion of investigation and on receipt of report from FSL, the charge- sheet was filed and the appellants were put to trial. During trial, another sample of smack was sent to FSL for determining the percentage of narcotic substance in it and the analysis showed that the percentage of narcotic substance in the seized material was only .007%. Thus the quantity of smack in the brown sugar powder recovered from appellant Peeraswmi was only .035 gm.
3. The prosecution in all examined 17 witnesses to bring home the guilt of the appellants. Learned Special Judge, after considering testimony of the witnesses, came to conclusion that the case against the appellants was proved beyond reasonable doubt.
4. The judgment of the learned Special Judge has been assailed by the appellants on the ground that the learned Special Judge did not appreciate the evidence properly and brushed aside the major contradictions and drawbacks in the evidence very lightly. The other ground for assailing the judgment is that there was non compliance of Section 50 of the Act and the third ground taken is that PW-4, the alleged public witness, was under influence of police and was a planted witness and his testimony was not only self contradictory but was not trustworthy. It is also submitted that PW-10 ACP Rattan Singh was also not a trustworthy witness and his testimony did not inspire confidence. It is submitted that the appellants were falsely 'roped in' in this case.
5. The initial information which was recorded by SI Raj Kumar is Ex.PW5/A and reads as under:
Time 11.30 am in the morning. It is recorded that at this time one secret informer has come to me (SI) to my office and told that in J.J. Colony House No. X-309, Camp No. 1, Nangloi, Delhi, one Peeraswmi and his wife Champai were dealing in smack and charas. This information has been recorded in DD and in charge Special Cell Mr. Ashok Tyagi brought it to the notice of his senior officers and sent the same and one raiding party under the leadership of Inspector Ashok Tyagi is made ready. Recorded in the hands of SI Raj Kumar.
6. Thus the initial DD which was recorded by SI Raj Kumar talks of three things. One that he received information through an informer but before recording the same, he conveyed it to Inspector Ashok Tyagi and before the information was recorded, Inspector Ashok Tyagi conveyed it to senior officers and also sent it in writing to them. When Inspector Ashok Tyagi appeared as PW- 14 in the court, he deposed that when he was present in his office along with other staff on 5th January, 2001 at around 11.30 am, SI Raj Kumar received a secret information on telephone and he conveyed the telephonic message to him. The information was that Peeraswmi and his wife Chambai, appellants, used to deal in smack and charas at their residence. He conveyed this information to his senior officials. In cross examination he admitted that he had not sent the information to his senior officers in writing and he only conveyed this information orally. He had not recorded the secret information on a paper. DD Ex.PW5/A recorded at 11.30 am, is not the information received by Sub Inspector Raj Kumar but is a detailed information recorded after deliberations giving who did what. Had SI Raj Kumar received the information and recorded it directly in DD, he could not have mentioned that he had informed about the information to his senior officials and his senior officials had in turn informed it to further senior officials and even sent a copy. When the information had not been recorded by Sub Inspector Raj Kumar, how it could have been sent to senior officials in writing. Section 42(1) of the Act casts a duty upon the police official to reduce the information in writing whenever commission of an offence in respect of narcotic drugs or narcotic substances comes to his knowledge. After he reduces down the information in writing, he has a duty to send a copy of the information to his superior officers within 72 hours. In fact, Section 42 of the Act prescribes detailed procedure as to how a police official has to proceed when he receives an information. This procedure is not a mere formality for the sake of it but it provides a safeguard against false implication of persons. Section 42(1) of the Act mandates a police officer to necessarily record the information in writing and Section 42(2) casts a duty upon a police officer who takes down the information in writing to forthwith sent a copy of information to his immediate superior officials. In the present case, it is admitted by PW-14 that no copy of the information was sent by him to his senior officers. PW2, who appeared from office of DCP has specifically stated that only a report under Section 57 of the Act regarding this case, was received in the office of DCP from Special Staff. He proved this report as Ex.Pw2/A and stated that no other document in respect of this case was received.
7. The manner in which DD Ex.PW5/A has been recorded, casts doubt on the receipt of information itself. This doubt is further fortified from the testimony of PW-14, who stated that SI Raj Kumar had received telephonic information and communicated the same to him whereas Sub Inspector Raj Kumar stated that the information was received through a secret informer. The other factors which throw doubt on the story of prosecution is that the secret informers are nourished by the police to receive informations about the crimes. They are never brought face to face before the accused persons because that puts their lives in danger, neither their identity is disclosed to the courts and courts also do not insist upon their identity. But in the instant case, it is testified by Sub Inspector Raj Kumar that despite the fact that secret informer had given specific address where the trade of smack and charas was being carried out, the secret informer was made a part of the raiding party. He was taken to the spot and he also pointed out to the appellant Peeraswmi and at his pointing out the appellants were arrested. If the identity of the secret informer was not so secret and he could accompany police party up to the house and come face to face with the appellant, there is no reason why he could not have been produced in the court for deposition. The entire story of secret informer in fact is falsified from the testimony of PW14, who stated that the information was received on telephone.
8. From the testimony of prosecution witnesses, it appears that when police reached the spot, appellants Peeraswmi and Chambai both were at home. Appellant Peeraswmi allegedly was having smack on his person concealed under his vest and Chambai was holding charas in a bag in her hand, as if both were waiting for the police to come at their house so that charas and smack can be recovered from their possession on their persons. The information with the police was that the appellants were dealing in smack and charas from their house. There is no evidence at all of the house search. Police got contended after recovery of some smack from person of appellant Peeraswmi and some charas from the hand of appellant Chambai. Since the information with the police was that dealings in smack and charas was being done from a house, I think normally police would have conducetd a search of house, even if some smack and charas had been recovered from the person of Peeraswmi and in the hand of Chambai. It looks very unnatural that the appellants kept charas and smack on their person and hands in order to facilitate the recovery of the same by the police. It is admitted by the witnesses that there were minimum two rooms and a varandah in the house apart from kitchen etc. If a person has been dealing in smack and charas from the house, he would not have loaded his body with the drugs. Definitely he would have some places in the house for concealing narcotic substances. However, this did not occur to the police party, specialized in investigations of such matters and the raiding party, including the ACP to search the house.
9. ACP Rattan Singh in this case appeared as PW-10. He testified that he was in his office at Janak Puri on that day. At 12.55 pm, in his office, he received wireless message from Inspector Ashok Tyagi requesting him to reach the house of the appellants. On receiving the wireless message he left in his official vehicle and reached Nangloi at the house of appellants at 1.15 pm. He stated that the distance between Janakpuri, where his office was situated, and Nangloi was only 5 kms. There is reason behind this statement because the time gap between the alleged receipt of wireless message and his reaching is only 20 minutes. He seems to have calculated as to how much distance can be travelled in between, so he gave the distance between Janakpur and Nangloi as 5 kms. He denied all suggestions that the distance was more than 5 kms or it was 15 kms. However, the other witnesses, who appeared, gave correct distance between Janakpuri and Nangloi as about 15 kms. Court can take judicial notice of the fact that if one has to go from Janakpuri to Nangloi, there are two routes, one via Raja Garden and Ring Road and other via outer Ring Road through Peeragarhi. Both routes pass throuh quite congested and thickly populated areas. Under no circumstances, a vehicle can transverse this distance of 15 to 16 km in 15 to 20 minutes. However, ACP Rattan Singh had stated that he covered this distance within 15-20 minutes. There is every doubt that ACP Rattan Singh had ever gone to Nangloi. If he had actually gone there, he would have known the distance between Janak Puri and Nangloi. The Trial Court brushed aside his testimony about the distance on the ground that the distance is given approximately and that an illiterate persons cannot be expected to keep tract of exact distance and time. I think Delhi Police does not recruit illiterates as ACPs and the ACPs of Delhi police do have knowledge about the topography of area when they are posted. The other reason for not believing the testimony of ACP Rattan Singh is the log book of the vehicle in which he was traveling at the relevant time. Log book of vehicle is Ex.DW1/A. It recorded the activity of the vehicle on that day as under:
From Police Station Jadhoda Kalan to Nanakpura to PTC for firing. To Police Station Janakpuri to SEM Court Motinagar to PS Janak Puri. To Nanakpura To Police Station Janak Puri.
Thus, the movement of vehicle used by ACP Rattan Singh shows that ACP never visited Nanagloi on that day.
10. It is argued by State counsel that the log book is not maintained by ACP and the same is maintained by the driver and he maintained it only for the purpose of showing petrol consumption of the vehicle and it is not a description of the places visited by the ACP. Had it been so, the log book would not have shown other places to which the vehicle had gone. The vehicle has gone twice to Nanakpura. This fact has been recorded. The log book also records that the vehicle had gone to PTC Jadodha Kalan. There is no reason why the driver would not have recorded if the vehicle had gone to Nangloi which was at a substantial distance from Janak Puri and the driver would not have been able to explain the petrol consumption if he had not recorded the same.
11. I also find that the testimony of PW-4, is not at all trustworthy. PW- 4 is alleged public witness. According to him, he was requested to become part of raiding party by Constable Shish Pal who was known to him who and was present at the petrol pump along with other police officials. Whereas it is not the case of the prosecution that Constable Shishpal was part of the raiding party because Constable Shish Pal on that day has been shown as a DD writer stationed at the police station. Moreover, in all documents, the address of Subash has been shown as resident of Nangloi whereas the address of Santosh Kumar is R/o RJD-C 90, Nihal Vihar, Delhi. If Santosh Kumar had been with the raiding party and had signed all the documents, there is no reason that he would not have given his address. Non recording of his address would only show that somebody from the police knew that he could be made as a witness and recorded his name and father's name and instead of recording his actual address, recorded as resident of Nangloi.
12. I consider that the entire story of prosecution of recovery of smack and charas is shrouded with doubts and does not inspire confidence. The learned trial court could not have brushed aside the material flaws which were evident from the evidence of the witness and ought not to have been taken contradictions so lightly as has been done. The case against both appellants has not been proved beyond reasonable doubts.
13. In view of my foregoing discussion, I allow these two appeals of appellants. The the impugned order of trial court of conviction and sentence is hereby set aside. Copy of the judgment be sent to Jail Superintendent. Appellant Chambai be set at liberty, if not required in any other case.