Delhi District Court
State vs Ikrar, S/O Abrar on 5 April, 2011
IN THE COURT OF MS. SANTOSH SNEHI MANN
SPECIAL JUDGE, NDPS (CENTRAL)
TIS HAZARI COURTS, DELHI
SC No. : 17/2010
FIR No. : 22/2010
U/s : 20/61/85 NDPS Act
PS : Jama Masjid
State V/s Ikrar, S/o Abrar
R/o House no. 339, Mohalla Chakkar ki Milk
PS Civil Lines, Distt. Muradabad, U.P
Date of filing of Charge Sheet : 19.04.2010
Date of taking up matter for the first time : 19.04.2010
Date of conclusion of arguments : 05.04.2011
Date of Judgment : 05.04.2011
JUDGMENT:
Accused Ikrar has been charge-sheeted under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as the "NDPS Act") on the allegations that on 03.03.2010 at about 8.25 pm at Nahar Patri in front of Urdu Park Gate, in the limits of police station Jama Masjid he was found in possession of 110 Grams of "Charas" in contraventions to the provisions of the NDPS Act.
2. Briefly stated facts of the prosecution case are that on 03.03.2010 ASI Ali Sher and Ct. Nafis Mohd. were patrolling in the area and at about 8.25 pm when they were present in front of gate no. 2 of Jama Masjid they saw accused, who on seeing the police State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 1 of 16 men immediately turned back and started walking with fast steps. Accused did not stop even when ASI called him in a raised voice and thus he was apprehended by the police men. Accused allegedly could not give satisfactory explanation for his conduct and on his body search, a white polythene was recovered from his pant pocket containing blackish colour bars, which were identified by ASI by smell.
3. The recovered contraband was seized at the spot after taking samples. FIR no. 22/2010 was registered on the basis of tehrir prepared by ASI. Sealed pulandas of sample and recovered contraband were handed over to SHO at the police station. After registration of FIR investigation was assigned to ASI Dhani Ram, who reached at the spot and completed the proceedings including formal arrest of the accused. During investigation sample pulanda was sent to FSL for analysis and after completion of investigation charge-sheet was filed in this Court being the designated Court under the NDPS Act.
4. Copies were supplied to the accused. Prima Facie offence punishable under section 20 of the NDPS Act was found to be made out. Charge was framed accordingly to which accused pleaded not guilty and claimed trial. Prosecution was thus directed to lead evidence to prove its case.
5. Prosecution has examined following 8 witnesses :
PW-1 HC Madan Mohan was working as duty officer at PS Jama Masjid on 03.03.2010 who registered FIR (Copy Ex. PW- 1/A) on the basis of rukka sent by ASI Ali Sher (PW-2) and had State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 2 of 16 made endorsement Ex. PW-1/B on the tehrir.
PW-3 HC Dayanand is the MHC(M) at PS Jama Masjid who stated that on 03.03.2010 case property was deposited in the malkhana by Inspector Vijay Kumar with respect to which entry was made at serial no. 852 in the register no. 19 (Copy Ex. PW- 3/A). It has come in this statement that on 25.03.2010, sealed pulanda Mark-A alongwith form FSL was handed over to Ct. Lokpal (PW-4) for depositing at FSL vide RC no. 13/21 (copy Ex. PW-3/B), which was deposited at FSL against the acknowledgment receipt (Copy Ex. PW-3/A). He further stated that on 27.04.2010 FSL result was received alongwith remnant sample.
PW-4 Ct. Lokpal had deposited sealed sample pulanda alongwith form FSL at FSL Rohini after receiving it from MHC(M) (PW-3).
PW-5 HC Shyam Sunder produced the record from the office of ACP Daryaganj according to which a report under section 57 of NDPS Act (Ex. PW-5/B) was received in the officer of ACP and seen by ACP on 05.03.2010 with respect to which entry was made at serial no. 1381 in the diary register (Ex. PW-5/A).
PW-2 ASI Ali Sher and PW-8 Ct. Nafis Mohd are the witnesses of search, recovery and seizure.
PW-7 Inspector Vijay Kumar was looking after the work of SHO PS Jama Masjid on the date of incident and PW-6 ASI Dhani Ram is the investigating officer (IO).
6. All the incriminating evidence on record against the accused was put to him. He was examined and his statement was State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 3 of 16 recorded under section 313 Cr. P. C without oath. Accused denied the incriminating evidence against him claiming that nothing was recovered from his possession. He stated that he was taken to the police station on the pretext of some inquiry and was falsely implicated. He desired to lead evidence in defence and examined Babu Lal, a fellow rickshaw-puller who stated that accused was taken to the police station by two police men on 03.03.2010 at about 5.00 - 5.35 pm on the pretext of making some inquiry.
7. I have heard Mr. Rajiv Mohan, Ld. Addl. PP for the State and Mr. Alok Sharma, Advocate, Amicus Curie for the accused. I have carefully perused the record.
8. PW-2 ASI Ali Sher has testified that on 03.03.2010 that he was patrolling in the area alongwith Ct. Nafis Mohd. (PW-8) vide DD no. 59-B and at about 8.25 pm they were present at Nahar patri in front of gate no. 2, Jama Masjid when they saw accused coming from Subhash marg side. Witness stated that on seeing the police party accused turned back and so he got suspicious and called him to stop. It has come in the statement of this witness that accused ignored his call and started running. Accused was thus apprehended by him with the help of Ct. Nafis Mohd. (PW-8). Witness stated that accused failed to answer satisfactorily about his conduct and on his search a white polythene containing different sizes of black colour bars was recovered which appeared to be Charas by look and smell. Witness stated that he apprised 4-5 persons passing by about the situation and requested them to join the proceedings but none State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 4 of 16 agreed. He stated that he gave a written notice under section 50 of the NDPS Act to the accused (carbon copy Ex. PW-2/A), but accused refused to avail the offer to call any Gazetted Officer or the Magistrate for his further search, in which nothing more was recovered. It has come in the statement of this witness that total weight of the Charas was found to be 110 grams from which 2 samples of 25 grams each were taken and converted into parcels Mark - A and B. Remaining 60 grams of Charas was kept in the same polythene and converted into another parcel Mark -C. Witness stated that form FSL was filled at the spot and he affixed his seal of 'AS' on all the parcels and form FSL. It has come in the statement of this witness that all three pulandas of the contraband were seized vide memo Ex. PW-2/B. He prepared the rukka Ex. PW-2/C which he gave to PW-8 alongwith sealed parcels, copy of seizure memo and form FSL with direction to hand over the rukka to the duty officer and other articles to SHO at the police station. Witness stated that at about 11.45 pm HC Dhani Ram (PW-6) came to the spot alongwith PW-8 and conducted further investigation. Witness identified the black bars of solid substance in pulanda Mark - C as Charas recovered from the possession of accused (Ex. P-1), sealed parcel Mark - B bearing the seals of 'VK' and 'AS' as one of the sample pulandas (Ex. P-2) and content of pulanda Mark - A as remnant of one sample (Ex. P-4).
9. PW-8 Ct. Nafis Mohd. has deposed on the lines of PW-2 about the circumstances in which accused was apprehended and 110 grams of Charas was recovered from his possession. In State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 5 of 16 addition he has deposed that he handed over the rukka prepared by PW-2 to the duty officer at the police station and the three sealed parcel alongwith form FSL and copy of seizure memo to SHO. He further testified that after registration of FIR he returned to the spot with HC Dhani Ram (PW-6) to whom investigation was assigned.
10. PW-7 Inspector Vijay Kumar was looking after the work of SHO PS Jama Masjid on 03.03.2010. It has come in his statement that Ct. Nafis Mohd. (PW-8) handed over to him three sealed parcels sealed with the seal of 'AS' alongwith form FSL and copy of seizure memo. Witness stated that he mentioned the FIR no. on the parcels and the accompanied documents after inquiry from the duty officer. It has come in the statement of this witness that he affixed his seal of 'VK' on all the parcels and form FSL besides his signatures on the parcels and thereafter deposited them in the malkhana with respect to which entry was made in register no. 19 by MHC(M). He identified his signatures in the said entry (Copy Ex. PW-3/A).
11. PW-6 ASI Dhani Ram is the investigating officer. He stated that on 03.03.2010 he was posted at PS Jama Masjid as Head - Constable and on assignment of investigation of this case he reached at the spot alongwith PW-8 where he met PW-2 alongwith accused. Witness stated that he inquired about the incident from PW-8 and arrested the accused vide memo Ex. PW- 6/A and conducted his personal search vide memo Ex. PW-6/B. He further stated that he prepared the site plan Ex. PW-6/C at the State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 6 of 16 instance of PW-2, interrogated the accused (vide memo Ex. PW- 6/D), recorded the statement of PW-2 at the spot and returned to the police station after completion of proceedings. Witness stated that on 04.03.2010 he prepared the report under section 57 of NDPS Act (Ex. PW-5/B) and forwarded it to the SHO. He further stated that during investigation the sample parcel was sent to FSL on 25.03.2010 through Ct. Lokpal (PW-4) and that result was received vide Ex. PX.
12. Ld. Addl. PP for the State submitted that recovery of 110 grams of Charas from the possession of the accused has been proved by the testimony of PW-2 and PW-8. It was further submitted that it was a chance recovery with no prior intimation with the police and that subsequent to the recovery, statutory procedure provided under the NDPS Act was followed with respect to arrest of the accused and seizure of the contraband. It was submitted that nothing has come in the cross-examination of witness of search, recovery and seizure to create any doubt about their testimony on these facts and that nature of contraband has been confirmed as Charas by the expert vide report Ex. PX. It was thus submitted that accused be convicted for committing the offence punishable under 20 of the NDPS Act.
13. Ld. Amicus Curie contended in defence of the accused that prosecution story is unbelievable as there are many statutory procedural lacunas besides circumstances which create doubt about genuineness of the prosecution story. It was argued that there is no public witness of the search, recovery and seizure and State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 7 of 16 SHO or any senior officer was neither informed before or after the recovery of the contraband nor they came at the spot at the time of recovery or even thereafter. It was argued that none of the recovery witnesses gave their search to the accused or any public person before conducting search of the accused. It was argued that weight and colour of the sample contraband received at FSL was found different than weight and colour of the sample drawn at the spot.
14. I have considered the rival submissions in the light of material on record.
15. The first contention raised by Ld. Amicus Curie is that in the absence of independent public witnesses, alleged recovery of the contraband from the possession of the accused cannot be proved by the police witnesses for conviction of the accused. It was argued that ASI Ali Sher (PW-2) neither made any efforts to join the independent public witnesses in the proceedings nor gave any notice to any public person for not joining the investigation.
16. As per the prosecution case place of recovery is a public place and the time of incident is 8.25 pm. There can be no doubt that many public persons must be present and available at the spot at the time of alleged recovery. As deposed by police witnesses PW-2 and PW-8, who were patrolling in the area, accused was apprehended by them on suspicion, as he had not stopped on being asked by them. It was in those circumstances that accused was searched by PW-2 in the presence of PW-8 and a polythene containing Charas bars was recovered from his pant State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 8 of 16 pocket.
17. It is revealed from the statements of PW-2 and PW-8 that they had no prior information that accused was in possession of any contraband. They apprehended the accused because he had not stopped on being asked by the police. According to the deposition of PW-2 and PW-8 recovery of Charas from the possession of accused was by chance. Therefore, there was no occasion for the police party to join the independent public witnesses in search as they were not comprehending the recovery of contraband from the accused.
18. It was argued by ld. Amicus Curie that independent witnesses should have been joined at least after the recovery. I have examined the statements of PW-2 and PW-8 and it has specifically come in their statements that after recovery of Charas from the possession of the accused, PW-8 had requested 4-5 public persons passing by to join the proceedings but none agreed. There is no reason for not believing the statements of two witnesses in this regard and I am convinced that due efforts were made to join the public witnesses.
19. It is a settled legal position that testimony of police witnesses on the aspect of search, recovery and seizure cannot be discarded merely on the ground that there was no independent public witness to corroborate them on these aspects. There is no bar to record conviction of the accused on the basis of testimony of police witnesses if it is found trustworthy and credible. {Reference to Apex Court's decision in "Ajmer Singh V/s State of Haryana, State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 9 of 16 2010(1) Drugs Cases (Narcotics) 99" and decision of High Court of Delhi in "Ramesh Kumar Rajput V/s State of NCT of Delhi, 2009(1) Drugs Cases (Narcotics) 289" and "Gopal V/s State, 2009(1) Drugs Cases (Narcotics) 301" }. Therefore there is no merit in the arguments of Ld. Amicus Curie that testimony of PW-2 and PW-8 cannot be believed in the absence of independent witnesses.
20. Ld. Amicus Curie had argued that recovery cannot be used against the accused because neither the SHO nor ACP or any senior officer was informed either before or after the recovery of contraband, nor any senior officer came at the spot at the time of recovery or thereafter. Procedure for such search, seizure and arrest during investigation of offences under the NDPS Act has been laid down in Chapter V of this act which include authorization or empowerment of a police officer to take action (section 41, 42 and 43 of NDPS Act), conditions under which the search of accused should be conducted (section 50 of the NDPS Act) and disposal of person arrested and articles seized (under section 52, 55 and 57 of the NDPS Act).
21. Evidence on record shows that contraband was recovered by chance from the possession of the accused and since there was no prior information with the police about contraband in the possession of the accused, there was no occasion for compliance of section 41, 42, 43 and 50 of the NDPS Act. There is no provision in the NDPS Act which requires presence of SHO or senior officer at the time of search, recovery or State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 10 of 16 seizure. Otherwise also since recovery of Charas from the possession of accused was by chance on routine search, there was no occasion or cause for PW-2 and PW-8 to offer their search either to the accused or a public person. Similarly there was no occasion for PW-2 to inform SHO or senior officer and consequently, no cause for SHO or senior police officer to be present at the spot before recovery. Requirement of information to the senior officer is contemplated in section 42 of the NDPS Act only in cases of prior information about the contraband. Therefore non arrival of the SHO, ACP or any senior officer at the spot after recovery of the contraband is of no consequence so as to give any benefit to the accused. PW-2 being an officer of the rank of ASI is an empowered officer to take action under section 42 NDPS Act as per Government Notification and thus there is no illegality of the proceedings conducted by him after recovery of contraband.
22. As regards contention about the difference in the weight and colour of the sample of the contraband it was argued by Ld. Amicus Curie that as per the prosecution case two samples of 25 grams which were drawn at the spot and colour of the contraband has been mentioned as black, whereas the FSL result shows weight of the sample contraband received in the sealed parcel Mark - A as 24 grams with polythene and its colour as "dark greenish - brown". In order to appreciate the contention raised, relevant material on record is considered here with.
23. According to deposition of PW-2 and PW-8, out of 110 grams Charas recovered from the possession of the accused, two State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 11 of 16 samples of 25 grams each which were taken at the spot which were converted into separate pulandas Mark - A and Mark - B. The two sample pulandas and the pulanda of remaining Charas, Mark - C were sealed by PW-2 with his seal of 'AS' which were seized and handed over to PW-7 Inspector Vijay Kumar, officiating SHO of PS Jama Masjid at the police station. It has come in the statement of PW-7 that after receiving three sealed pulandas bearing seal of 'AS' alongwith form FSL and copy of seizure memo, he affixed his seal of 'VK' on them and deposited them in the malkhana with respect to which entry was made in the register no.
19. PW-3 HC Dayanand produced the register no. 19 (Copy Ex. PW-3/A) according to which entry at serial no. 852 of register no. 19 was made about deposition of the pulandas of the case property. It has come in the statement of PW-3 and PW-4 that sealed pulanda Mark-A alongwith form FSL was deposited at FSL. Ex. PX is the report of Dr. Madhulika Sharma, Assistant Director (Chemistry), FSL, Delhi according to which sealed parcel Mark - A was received with the seals of 'VK' and 'AS' intact, which tallied with the specimen seals on the forwarding letter (form FSL).
24. The above evidence shows movement of sample pulanda Mark - A from the spot till its deposition at FSL. Nothing has come in the cross-examination of any of the witnesses who handled sample pulanda Mark - A at any point of time to create any doubt or to indicate any possibility of tampering. Therefore on the basis of record when pulanda Mark - A remained intact till it was opened for analysis by the expert at FSL Rohini, the difference State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 12 of 16 in the weight of the sample and the colour of the contraband as mentioned by the Ld. Amicus Curie needs to the considered accordingly. The difference in the weight of sample taken at the spot and sample received at FSL is just one gram which is too less and insignificant. Such a minor difference in weight can be possible due to change of weighing machine. In view of the overwhelming evidence on record, which rules out any possibility of tampering, I am of the opinion that difference of one gram in weight can be simply ignored as it can be possible due to change of the weighing machine and scale.
25. Coming to the contention of Ld. Amicus Curie about the difference in the colour of the contraband, the colour of contraband is mentioned as black in the rukka and so by the witnesses PW-2 and PW-8 in their deposition in the Court, whereas it is mentioned in the FSL result Ex. PX that colour of the content of sample contraband received was "dark greenish - brown colour". It was submitted by Ld. Addl. PP for the State that colour was given as black by PW-2 and PW-8 as an ordinary persons whereas the colour has been mentioned in the FSL result Ex. PX from the point of view of an expert, which would otherwise look like "black" to an ordinary person. I am convinced with submission of Ld. Addl. PP in this regard. The colour specification of the contraband reflected in Ex. PX as "dark - greenish brown colour" would appear as black to an ordinary person. Therefore no doubt can be created about the sample drawn at the spot and the sample received at FSL for examination in pulanda Mark - A. State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 13 of 16
26. Lastly the various contradictions pointed out by Ld. Amicus Curie in the statements of PW-2 and PW-8 are about the time they made departure from the police station, the position in which the writing work was done at the spot, the time PW-6 (IO) came to the spot after registration of FIR and the place where statement of PW-2 ASI Ali Sher was recorded by IO. On perusal of statements of PW-2 and PW-8, it is found that PW-2 stated that he made departure from the police station alongwith PW-8 at 8.10 pm whereas PW-8 stated that they left police station at about 8.00 pm. PW-2 stated that writing work was done white sitting on patri opposite gate of Urdu Park, PW-8 has stated that it was done white standing at the gate of Urdu Park. PW-2 stated that PW-6 (IO) came to the spot at about 11.45 pm where as PW-8 stated that he reached with PW-6 at about 11.30 pm. PW-2 deposed that his statement was recorded by PW-6 at the police station while it is mentioned in his statement under section 161 Cr. P.C that it was recorded at the spot. To my mind, inconsistencies pointed out by Ld. Amicus Curie are too insignificant to have any bearing on the merits of the case as they do not relate to the substratum of the offence. It is a settled legal position that minor and insignificant inconsistencies which do not relate to the substratum of offence against the accused will have not affect the merits of the case (Reference to Apex Court's decision in "State of Punjab V/s Lakhwinder Singh & Another, 2010(1) Drugs Cases (Narcotics) 192") State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 14 of 16
27. Coming to the evidence on record about recovery of Charas from the possession of the accused, not only that PW-2 and PW-8 have deposed on the line of the prosecution story, nothing has come in their cross-examination to create any doubt about their credibility. Their deposition establishes on record that 110 grams Charas was recovered from the possession of the accused. Testimony of PW-2, PW-8, PW-7 and PW-3 proves that pulandas of the contraband were prepared at the spot, which were duly sealed and after seizure were given in the charge of PW-7, who was officiating SHO on the date of incident, who then deposited them intact in the malkhana after affixing his seal. Evidence on record shows compliance of statutory procedure under sections 55 and 57 of NDPS Act.
28. As already discussed in the earlier part of the judgment, it is proved on record that sealed sample pulanda Mark
- A was deposited at FSL Rohini by PW-4. Ex. PX is the report of Dr. Madhulika Sharma, Assistant Director (Chemistry), FSL Delhi which is admissible under section 293 Cr. P. C and this report confirms the sample of contraband to be "Charas", which is the separated resin of "cannabis (Hemp) " as per section 2(iii)(a) of the NDPS Act and is a Narcotic Drug as per section 2(xiv) of the NDPS Act.
29. In view of my above observations, discussion and findings I hold that prosecution has succeeded in proving beyond all reasonable doubt that accused was in possession of 110 grams of "Charas" in contravention to the provisions of NDPS Act.
State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 15 of 16Accused Ikrar is thus convicted for committing the offence punishable under section 20 (b) of the NDPS Act.
Announced in the open Court (Santosh Snehi Mann) 05th of April, 2011 Special Judge, NDPS (Central) Tis Hazari Courts, Delhi State V/s Ikrar; FIR No. : 22/2010; PS : Jama Masjid Page 16 of 16