Delhi District Court
State vs . 1) Sonu @ Vipin (Now Expired) on 26 February, 2018
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI
Session Case No.461/16
FIR No. 383/12
U/s 482/34 IPC, 25/27 of Arms Act and 20 NDPS Act
PS Kalyanpuri
In the matter of:
State Vs. 1) Sonu @ Vipin (now expired)
S/o Sh. Sripal
r/o C14, Gali No.1, Shastri Mohalla,
Patparganj, Delhi
2)Shahzad @ Azad
S/o Sh. Chhote Khan
R/o A29, Gali no.1, Shastri Mohalla,
Patparganj, Delhi
Date of institution 04.01.2013
Arguments heard 09.02.2018
Date of judgment 26.02.2018
JUDGMENT
PROSECUTION CASE:
1. Brief facts, as per prosecution case, are that on 03.11.2012, HC Karambir Singh alongwith Ct. Bhavara Ram was on the duty on vehicle ERV14 from 8 am to 8 pm and they alongwith HC Darshan, who remains on duty at Chand Cinema, were present at Chand Cinema and at about 7.15 pm, these police officials were checking the vehicles which were coming from the opposite direction of Chand Cinema. At that time, two boys without wearing helmet came from the side of 13 block, Trilok Puri on a bike riding very fast. They were FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 1 of 27 stopped with great efforts and during checking, the pillion rider took out a dagger from the right side pocket of his jeans pant and in order to threaten he waved the dagger at HC Karambir to threaten him but he swiftly overpowered him. The rider of bike also tried to escape with bike and he was overpowered by HC Darshan and Ct. Bhavara Ram. On inquiry, the name of the rider of the bike was revealed as Sonu @ Vipin while pillion rider as Shahzad @ Azad. A bag which was attached with bike was found containing ganja in a white polythene. On their personal search, one small packet (pudia) containing ganja weighing 20 gm was also recovered from each one of them from the left pocket of their pants. Besides, one blade and a paper cutter were also recovered from accused Sonu @ Vipin. In the front side, the recovered motor cycle CD Delux was having number plate as DL7S BG3333 while at the back as DL7S BG 3633. After that HC Karambir gave this information to the duty officer at PS Kalyan Puri and in regard to this incident, the DD No.46A was recorded which was assigned to SI Sandip Kumar who reached the spot and recorded the statement of HC Karambir who made him the above discussed statement and handed over him the accused persons alongwith the contraband and other articles recovered from the possession of the accused persons. On interrogation, the accused persons disclosed that about 40 days back, they by threatening a person in Shashi Garden area, had run away with his bike. The FIR no.467/12 was registered regarding the theft of the said bike in the PS Pandav Nagar and its actual registration number was DL7S BG 3633. The photograph of the bike was taken from front and back side and both FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 2 of 27 the number plates were removed from the bike and number plates and bike were taken into possession. Number plates were wrapped in white colour cloth which was converted into a parcel and same was sealed with the seal of SK. On weighing, the ganja recovered from the bag was found to be 1050 gm and from the pouches recovered from the possession of the accused were found to be containing 20 gm each. Two samples of 25 gm each were drawn from the ganja recovered from the bag and same were given Mark A and Mark B. Two samples of 5 gm each were drawn from the pouches and they were given Mark 2 and Mark 3. These four samples and remaining ganja were taken into possession and sealed with the seal of SK. Form FSL was also filled up. The sketch of dagger was prepared and same was also taken into possession and kept in a parcel which was also sealed with the seal of SK. The recovered blade and paper cutter were also kept in a sealed parcel. After that the seal was handed over to HC Darshan. After that an FIR u/s 20 NDPS Act, 25/27 Arms Act & 411/482/34 IPC was registered. Thereafter, both the accused persons were arrested. Compliance of Section 57 NDPS Act was done. During investigation, a mobile make Samsung was also recovered from the possession of accused Shahzad which was found to be the case property of FIR No.426/12 u/s 379 IPC PS Pandav Nagar. The samples of ganja were sent to CFSL, Rohini. After completion of investigation the accused Shahzad @ Azad was charge sheeted u/s 20 NDPS Act, 25/27 Arms Act & 482/34 IPC while accused Sonu @ Vipin u/s 20 NDPS Act, 25/27 Arms Act & 411/482/34 IPC & 129/177, 32/177,146/196 M.V. Act.
FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 3 of 27
2. The FSL result confirmed that the recovered substance was ganja. Thus, vide order Dt.03.09.13 a charge u/s 20(b)(ii)(c) NDPS Act & for possession ganja and u/s 482 IPC for using false property marks ie plates on the motorbike and u/s 27 Arms Act for using a dagger to threaten HC Karambir was framed against both the accused persons. During trial the accused Sonu @ Vipin passed away. Accordingly present proceedings were abated against him vide order dated 07.10.2015 and the trial continued against the accused Shahzad.
3. In order to establish the aforesaid accusations, the prosecution examined 11 witnesses. Brief outline of the testimonies of these witnesses is as under: (3.1.) HC Darshan Kumar (PW1) is the member of the police team, who apprehended the accused persons and got the recovery effected. PW1 deposed that on 03.11.12, he was on duty at Chand Cinema, Kalayan Puri. At about 6 pm HC Karamvir and Ct. Bhavara Ram came there and they together started checking the vehicles. At about 7.15 pm, they saw that two persons without wearing a helmet were coming towards Chand Cinema on a bike in a fast speed and when they gave them signal to stop, they tried to turn the motorcycle back but they were stopped. During checking, the pillion rider took out a dagger and threatened, upon which, he and Ct. Bhavara Ram overpowered him. The motorbike had two different number plates. On inquiry, the rider disclosed his name as Sonu @ Vipin while the pillion rider as Shahzad @ Azad. IO carried out the personal search of the accused persons and of the bike. Two packets weighing 25 gm ganja were recovered FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 4 of 27 from the personal search of both the accused persons. Besides, a white polythene containing 1050 gm ganja was recovered from the dickey of the bike. A blade and a paper cutter were also recovered from the accused Sonu. After that HC Karamvir gave information to the duty officer at the Police station and after that IO SI Sandeep Kumar reached at the spot. They handed over him the accused persons as well the contraband and the articles recovered. IO took out two samples of 25 gm each from the ganja weighing 1050 gm and 5 gm each from the packets recovered from the possession of the accused persons. He sealed the samples and remaining ganja with the seal of SK and two samples of 25 gm were given Mark A and B and two samples of 5 gm were given Mark C and D. Remaining ganja were kept in separate parcels, sealed with the seal of SK and they were given Mark 1, 2 & 3. The FSL form was filled up. After use, the seal was handed over to PW1. All these parcels were taken into possession vide seizure memo ExPW2/A. The recovered blade and paper cutter was seized vide seizure memo ExPW2/B. This witness also brought on record the sketch of dagger as ExPW2/C and its seizure memo as ExPW2/D. IO also seized the motorcycle vide seizure memo ExPW2/F and number plates vide seizure memo Ex PW2/G. IO prepared rukka on the basis of statement of HC Karamvir and got registered the FIR through PW1. Thereafter IO arrested the accused persons and carried out their personal search. IO also recorded their disclosure statements. During his testimony entire case property recovered from the accused persons were produced and this witness correctly identified all the parcels. The parcel MarkA which is FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 5 of 27 the sample taken from 1050 gm ganja was produced with the seal of the court and duly identified by PW1 to be the sample. The polythene containing ganja was marked as P1 and cloth containing particulars of the case as P2. Likewise Mark B another sample drawn from 1050 gm quantity was produced having seal of AK and SK. This parcel was placed on record as ExP3. PW1 further brought on record two envelopes sealed with the seal of court and having MarkC & MarkD. MarkC and MarkD are 5 gm samples which were drawn from 25 g ganja recovered from the accused persons and sent to FSL for testing. The polythene containing sample MarkC and the cloth in which the sample was sealed were marked ExP4 & P5 and likewise the polythene containing sample MarkD and its cloth were marked as ExP6 and P7. The remaining quantity of ganja which was recovered from motor cycle was produced with the seal of SK & AK. The white polythene in which ganja was kept was marked as ExP8 while the cloth in which said ganja was sealed was marked as ExP9. Two parcels containing remaining quantity of ganja which was recovered from the trousers of the accused persons and were sealed as Mark2 and Mark3 were also brought on record. The transparent pouches in which the ganja was kept were marked as ExP10 and 12 while the cloth in which said ganja was sealed was marked as ExP11 & P13. Likewise, the dagger was also brought on record and PW1 identified it as the same dagger which was recovered from the possession of accused Shahzad and same was marked as ExP14. The paper cutter and blade recovered from the accused Sonu were marked as ExP15 and P16. The two number plates bearing registration number FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 6 of 27 DL7SBG3333 and DL7SBG3633 were also placed on record as Ex P17 and P18 and motorcycle as PA. All these articles were produced with the seal of the court as prior to the evidence of this witness, all the said articles were already produced and placed on record during the evidence of PW2.
(3.2.) HC Karamvir (PW2) is another member of the police team which held the accused persons and effected various recoveries from the accused persons. This witness has deposed on the same lines of the testimony of PW1, however, prior to the complete examination of PW1, this witness was examined and entire case property was firstly brought on record by this witness. Thus, his particular part of the testimony where he exhibited the cases property is being discussed here in order to specify the particulars with which the case property was brought on record. During evidence of this witness the entire case property which includes the articles and contraband recovered from the accused persons as well as the samples which were received back from the FSL after their testing. Thus, it is pertinent to mention here that all the three samples of contraband i.e. Mark A (25 gm taken from 1050 gm quantity), C, & D (5 gm each taken from 25 gm pouches recovered from the pant of the accused persons) which were sent for testing were produced with the seal of FSL. The second sample of 25 gm (drawn from 1050 gm quantity) Mark B and parcels of the remaining contraband of 1050 gm and 25 gm pouches which were given Mark 1, 2 & 3 were produced with the seal of AK & SK. The three parcels of remaining articles i.e. dagger, blade & paper cutter FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 7 of 27 and number plates of the motorbike were also produced with the same seal of AK & SK. The identity of the stolen motorbike which was recovered from the possession of the accused was not disputed and thus, the same was exhibited as ExPA.
(3.3) HC Yatvir (PW3) is the duty officer who recorded the FIR. He placed on record the copy of FIR as ExPW3/B and his endorsement on the rukka as ExPW3/A. (3.4) Ct. Devender Pal (PW4) is the police official who on 04.11.2012, during the police remand of the accused persons had accompanied the IO. During the police remand, the accused Shahzad had got recovered one black colour Samsung mobile phone from a box lying in the kitchen of his jhuggi. He placed on record the seizure memo of said mobile phone as ExPW4/A. (3.5) Ct. Bhavara Ram (PW5 & PW8) is the third member of the police team which held the accused persons and effected various recoveries from the accused persons. It seems that inadvertently this witness has been examined with the said two different numbers. Firstly PW5 was examined on September 2 nd, 2014 and on that day his further examination was deferred and after that he was examined on 20.02.2015, however, it seems that inadvertently, he was given a new PW number i.e. PW8. This witness has deposed on the same lines of the testimony of PW1 and PW2, as such, his testimony is not being discussed here for the sake of brevity.
(3.6) HC Thakur Dass (PW6) is the person who on 05.11.2012 was working as Reader to ACP Kalyan Puri. On the aforesaid date he had FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 8 of 27 received the report u/s 57 NDPS Act sent by the SHO PS Kalyan Puri vide diary no.7386. PW6 had produced the said report before Sh. Gaurav Sharma, the ACP concerned. During his evidence PW6 produced the original report and diary register, thus, the copy of the report u/s 57 NDPS Act was placed on record as ExPW6/A and diary no. 7386 as ExPW6/B. (3.7) Ct. Megh Ram (PW7) is the police officials who on 21.12.2012 on the basis of RC No.173/21/12, deposited the three samples (sealed with the seal of SK & AK) and FSL form with FSL Rohini.
(3.8) Ct Pankaj (PW9) is the police official who on 02.11.12 was working as Chitha Munshi. He deposed that on the said day, Ct. Bhavra Ram and HC Karambir were on ERV i.e. Gypsy No. DL1CM 4329 from 8 am to 8 pm and HC Darshan Kumar was on duty at Chand Cinema from 10 am to 6 pm. This witness made relevant entries of their duties in the record and he placed on record the photo copy of the duty roaster in respect of said police official as ExPW9/A. The witness further deposed that copy of the duty roaster ie Chitha had been destroyed and in this regard order dated 03.09.2015 is brought on record as ExPW9/B. (3.9) HC Brij Pal Singh (PW10) is the MHC (M) of PS Kalyan Puri. He deposed that on 03.11.2012,the SHO Insp. Arvind Kumar had deposited ten sealed parcels and all the parcels were sealed with the seal of AK and SK. One motor cycle bearing registraton No. DL7S BG3333 on front portion and DL7SB3633 on back of the motor cycle and in this regard he made an entry in regisgter no.19, copy of FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 9 of 27 which is brought on record as ExPW10/A. He further deposed that on 04.11.2012, IO had deposited one sealed parcel sealed with the seal of SK and in this regard he made entry in register no.19, copy of which is brought on record as ExPW10/B. On 21.12.2012, the exhibits/pullandas were sent to FSL through Ct. Megh Ram vide copy register and of RC ExPW10/B and ExPW10/C. (3.10) SI Sandeep Kumar (PW11) is the IO of the case. This witness deposed more or less on the lines of recovery witnesses ie PW1 and PW2. PW11 also deposed that he prepared site plan (ExPW11/E), report u/s 57 NDPS Act (ExPW11/C) and pending the receipt of FSL result, he filed the charge sheet before the Court. During pendency of the case, he collected FSL result (ExPW11/D) and filed it in the Court.
(3.11) Insp. Arvind Kumar is examined as PW11. It seems that inadvertantly this witness has been given Serioal No.11 while IO SI Sandeep Kumar was already examined with same serial number. Thus, for the sake of reference, hereinafter Inspector Arvind Kumar is referred in this order as PW11A. PW11A deposed that on 03.11.2012 at about 10.15 pm, Ct. Bhawara Ram came to his office and produced ten sealed pullandas sealed with the seal of SK, copies of three seizure memos and FSL form. Then he put his seal of AK on all the sealed pullandas as also on FSL form and made the endorsement on the copies of seizure memos. Thereafter, sealed pullandas along with FSL form and seizure memos were deposited in malkhana vide DD No.51A.
FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 10 of 27
4. After completion of the prosecution evidence, the statement of the accused Shahzad was under section 313 Crl.P.C. to explain the above detailed incriminating circumstances existing against the accused. The accused pleaded innocence and claimed false implication.
5. I have heard Mr. Maqsood Ahmed, Ld. Addl. Public Prosecutor as well as Sh. K.K. Sharma, Ld. LAC and perused the record. During the course of arguments, Ld. Addl. Public Prosecutor submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt through the testimonies of the prosecution witnesses, thus, he prayed that accused may be convicted for the offences charged with. He further submitted that the recovery witnesses i.e. PW1, PW2 & PW5, have duly supported the prosecution case that accused persons were apprehended on spot and recovery of contraband, stolen motorcycle with fake number plates and a dagger was effected from the possession of the accused persons. The necessary compliance of the provisions of NDPS Act was made. Thus, he submitted that accused may be convicted for the offences he is charged with.
6. While Ld. LAC submitted that prosecution has failed to prove its case against the accused beyond reasonable doubt as there are several material contradictions in the testimony of the witnesses. He further submitted that spot was a public place, however, no public person has been joined during entire investigation and prosecution has only cited and examined police officials and in their testimony there are several FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 11 of 27 material contradictions which creates doubt about the authenticity of the prosecution case. He also submitted that the alleged recovery was effected on 03.11.2012, however, samples were sent to FSL on 21.12.2012 with the delay of 49 days from the alleged recovery. It is further submitted that the notice u/s 50 NDPS Act is mandatory, however, before carrying out search, the mandatory notice has not been served upon the accused.
DISCUSSION ON THE POINT OF RECOVERY OF CONTRABAD:
7. As per prosecution case, on 03.11.12, HC Darshan Kumar was on patrolling duty and at about 6 pm he was joined by HC Karamvir and Ct. Bhawra Ram who were on patrolling duty in ERV14. While these witnesses were checking the vehicles, they apprehended both the accused who were coming on a stolen motorcycle. They have spelled out in detail the manner in which the accused persons were apprehended and recovery of contraband was effected from the motor cycle of the accused persons. PW2 deposed that accused persons were coming on a motor cycle from the side of 13 block and when they were signaled to stop, accused (Shahzad) the pillion rider of motor cycle took out a dagger and threatened them, however, they apprehended them. PW2 further stated that the said motor cycle was having two different registration number plates and a polythene bag containing ganja was recovered from a bag kept in the motorcycle. This witness also carried out the search of the accused persons and from their personal search the one packet from the left pocket of each of the accused person was also recovered. One blade and paper FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 12 of 27 cutter was also recovered from the personal search of accused Sonu @ Vipin. After that PW2 gave the information of the apprehension of the accused and recovery of contraband to the Duty Officer and accordingly, IO SI Sandeep (PW11) was assigned the call who after reaching the spot carried out the required proceedings and got the case registered. The testimony of the PW2 has been duly corroborated by other two recovery witnesses i.e. PW1 and PW5. ** CONSCIOUS POSSESSION:
8. The recovery of the contraband was effected from a bag kept in motorcycle which was being driven by the accused Sonu @ Vipin (deceased) while accused Shahzad was a pillion rider on this bike. Thus, it also to be seen whether the accused Shahzad also had conscious possession of the contraband. It is clear from the aforesaid discussions that recovery was effected from the motorcycle recovered from the possession of the accused persons. Thus, possession of contraband from the bike has been proved, now, only element which is to be seen is whether the accused Shahzad was also having a culpable mind about the contraband. It is clear from the testimony of the recovery witnesses that the accused Shahzad threatened the police team with a dagger when they try to stop the accused persons on the checking point and they attempted to escape. The motorcycle which was recovered from their possession was a stolen motorcycle and had two different number of registration plates. All these facts are the clear indications of the culpable mind of the accused persons that they were well aware that they had contraband with them.
FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 13 of 27
9. In regard to the conscious possession, the Hon'ble Supreme Court in the case titled as Mohan Lal Vs State of Rajasthan reported as AIR 2015 SC 2098, has observed as under:
14. In Bhola Singh v. State of Punjab, 2011(2) R.C.R.(Criminal) 337 : 2011(2) Recent Apex Judgments (R.A.J.) 209 : (2011) 11 SCC 653, the Court, after referring to the pronouncement in Noor Aga (supra), concurred with the observation that only after the prosecution has discharged the initial burden to prove the foundational facts, then only Section 35 would come into play. While dislodging the conviction, the Court stated:-
" .. it is apparent that the initial burden to prove that the appellant had the knowledge that the vehicle he owned was being used for transporting narcotics still lay on the prosecution, as would be clear from the word "knowingly", and it was only after the evidence proved beyond reasonable doubt that he had the knowledge would the presumption under Section 35 arise. Section 35 also presupposes that the culpable mental state of an accused has to be proved as a fact beyond reasonable doubt and not merely when its existence is established by a preponderance of probabilities. We are of the opinion that in the absence of any evidence with regard to the mental state of the appellant no presumption under Section 35 can be drawn. The only evidence which the prosecution seeks to rely on is the appellant's conduct in giving his residential address in Rajasthan although he was a resident of Fatehabad in Haryana while registering the offending truck cannot by any stretch of imagination fasten him with the knowledge of its misuse by the driver and others."
15. Having noted the approach in the aforesaid two cases, we may take note of the decision in Dharampal Singh v. State of Punjab, 2010(4) R.C.R.(Criminal) 504 : 2010(5) Recent Apex Judgments (R.A.J.) 432 : (2010) 9 SCC 608, when the Court was referring to the expression "possession" in the context of section 18 of the NDPS Act. In the said case opium was found in the dicky of the car when the appellant was driving himself and the contention was canvassed that the said act would not establish conscious possession. In support of the said submission, reliance was placed on Avtar Singh v. State of Punjab, 2002(4) R.C.R.(Criminal) 180 : (2002) 7 SCC 419 and Sorabkhan Gandhkhan Pathan v. State of Gujarat, (2004) 13 SCC 608. The Court, repelling the argument, opined thus:-
FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 14 of 27 "12. We do not find any substance in this submission of the learned counsel. The appellant Dharampal Singh was found driving the car whereas appellant Major Singh was travelling with him and from the dicky of the car 65 kg of opium was recovered. The vehicle driven by the appellant Dharampal Singh and occupied by the appellant Major Singh is not a public transport vehicle. It is trite that to bring the offence within the mischief of Section 18 of the Act possession has to be conscious possession. The initial burden of proof of possession lies on the prosecution and once it is discharged legal burden would shift on the accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the plea of the accused is found probable, discharge of initial burden by the prosecution will not nail him with offence. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused.
13. It needs no emphasis that the expression "possession" is not capable of precise and completely logical definition of universal application in the context of all the statutes. "Possession" is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18 of the Act once possession is established the accused, who claims that it was not a conscious possession has to establish it because it is within his special knowledge.
xxx xxx xxx xxx
15. From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to satisfactorily account for the possession of opium.
16. Once possession is established the court can presume that the accused had culpable mental state and have committed the offence. In somewhat similar facts this Court had the occasion to consider this question in Madan Lal v. State of H.P., 2003(4) R.C.R. (Criminal) 100 : (2003) 7 SCC 465, wherein it has been held as follows: (SCC p. 472, paras 26-27) FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 15 of 27 "26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sec. 35 and 54 of the Act."
10. Thus, in view of settled law once the possession is proved then it has to be presumed that accused was in conscious possession of the contraband unless he rebuts the same. In the instant case, accused Shahzad has not put forth any defence or rebuttal rather he has completely disowned the recovery. Thus, in view of the facts discussed in para No.8 of this order as well as in the absence of any evidence in rebuttal it is assumed that accused Shahzad had conscious possession of the contraband recovered from the motorcycle.
COMPLIANCE OF SECTION 42 and 50 OF NDPS ACT:
11. The legal position in respect to section 50 NDPS Act has been laid down by Hon'ble Supreme Court in the case titled as State Vs Baldev Singh reported as 1999 AIR (SC) 2378 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the case of a chance recovery. The relevant para of this judgment reads as under: FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 16 of 27
11. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted.
12. In the case titled as State of Punjab Vs Balbir Singh and reported as 1994(3) SCC 299 same view has been taken by Hon'ble Supreme Court. The relevant para reads as under:
27. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :
1) If a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards. he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act.
13. It is held in the case of Madan Lal Vs State of Himachal Pradesh reported as 2003(7) SCC 465 that the compliance of section 50 of NDPS Act is required only when personal search of the accused is to be conducted, however, the provisions of this section is not attracted in case the vehicle of the accused is to be searched. The relevant FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 17 of 27 para reads as under:
17. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra and Anr., (JT 1999(8) SC 293) : 1999(4) RCR(Cr.) 575 (SC), The State of Punjab v. Baldev Singh (JT 1999(4) SC 595) :
1999(3) RCR(Cr.) 533 (SC), Gurbax Singh v. State of Haryana, (2001(3) SCC 28) : 2001(1) RCR(Crl.) 702 (SC). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance.
14. It is clear from the evidence of PW1, PW2 & PW5 that in the instant the case, the recovery of ganja effected from the motorcycle of the accused persons was a chance recovery. Thus, in the instant case the compliance of section 42 & 50 NDPS Act was not required to be made for two reasons firstly that it was a chance recovery and secondly that the recovery of ganja weighing 1050 gm was not effected from the personal search of the accused and it was recovered from a bag attached with the motorcycle of the accused persons.
15. As per prosecution case, besides, the aforesaid recovery, a pouch containing 20 gm ganja was further recovered from the pockets of the each accused person. The said recovery cannot be taken into consideration as it is clear from the testimony of the recovery witnesses that prior to carrying out search of the accused persons, the ganja was already recovered from the motorcycle of the accused persons, thus, under these circumstances they ought not to have carried out the search of the accused and informed the SHO FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 18 of 27 concerned as firstly, after initial recovery there was a valid reason to believe that accused could be possessing more contraband within their person and secondly, they (recovery witnesses) were not competent officers to give notice under section 50 of NDPS Act.
Thus, the recovery of 20 gm ganja cannot be taken into consideration, however, it is held that recovery of 1050 gm ganja has been duly proved and this recovery is a valid recovery as qua this recovery there was no requirement of compliance of section 50 of NDPS Act. PROCEEDINGS REGARDING DRAWING OF SAMPLE and COMLIANCE OF SECTION 55 NDPS ACT :
16. PW2 deposed that after effecting the recovery of contraband and other incriminating articles, he passed on the information regarding apprehension of accused persons and aforesaid recovery to the duty officer and investigation was marked to the SI Sandeep (PW11). PW 11 deposed that on weighing on an electronic weighing scale the ganja recovered from the motorcycle was found to be 1050 gm and from the pocket of accused persons was found to be 20 gm each. Now let us see if the sampling was done in accordance with law or not. Since, the recovery of 1050 gm ganja was found to be in order, thus, here the discussion is made only about the sampling of said contraband of 1050 gm only. PW11 deposed that out of the recovered contraband, he drew two samples of 25 gm each and sealed them in two cloth pullindas Mark A and B and affixed the seal of SK. PW11 took the said samples and remaining contraband in possession vide a seizure which was brought on record by PW2 as EXPW2/A. PW2 also filled the FSL form over which he affixed his FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 19 of 27 seal. All the recovery witnesses have corroborated each other very well in regard to the drawing and sealing of sample by PW11 as well as taking the same into possession vide ExPW2/A. After drawing the sample, the sample pullindas were sent to the SHO concerned through Ct. Bhawra Ram (PW5) who also corroborated the same. It clear from the testimony of PW11 that he had sent the samples to the SHO concerned at about 10 pm and PW11A Insp. Arvind Kumar has stated that Ct. Bhavra Ram handed over him the sealed pullindas at about 10.15 pm. PW11A thereafter put his seal (AK) over all the sealed pullindas and FSL form and deposited the same with the Malkhana Moharar. PW10 HC Brij Pal Singh is the Malkhana Mohrar who brought on record the relevant entry (ExPW10/A) made by him in the register no.19 at Sl.No. 4276 regarding the deposit of sealed sample pullindas with other pullindas. It is clear from ExPW10/A that the sample pullindas came to be deposited with the malkhana on the same day immediately after it was drawn and sealed by the IO and SHO and at that time, the parcels were sealed with the seal of AK & SK. It is further clear from FSL report (ExPW11/D) that seals affixed i.e. S.K. & A.K. on the the sample pullinda Mark A remained intact throughout. Thus, it is proved on record by the prosecution that the sample was handled carefully and from the point of preparing the pullinda of sample and till the time of depositing the same with the FSL the sample remained intact. The deposition of the sample with the malkhana on the same day also rules out any possibility of tampering.
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17. Prosecution has also established on record by the evidence of PW5 Ct. Bhawra Ram and PW11 IO SI Sandeep Kumar and Insp. Arvind Kumar that compliance of section 55 NDPS Act was properly made as the entire contraband as well as the pullindas of samples were produced before Insp. Arvind Kumar immediately after recovery and SHO further affixed his seal on the contraband.
COMPLIANCE OF SECTION 57 OF NDPS ACT:
18. In order to prove that the information regarding arrest and seizure was made to the ACP concerned, the prosecution examined PW6 HC Thakur Dass, the Reader to ACP. This witness has brought on record the report dt.05.11.12 prepared by the IO SI Sandeep Kumar under section 57 of NDPS Act and forwarded by the SHO PS Kalyan Puri to the ACP, Kalyan Puri as ExPW6/A alongwith the copy of the register in which the receipt of said report was acknowledged at Sl.7386 vide ExPW6/B. It is clear from ExPW6/A that the complete information regarding the recovery of contraband and arrest of the accused persons was given to the ACP concerned within the prescribed time and this report was duly acknowledged and seen by the ACP concerned. Thus, prosecution has further established on record that the proper compliance of section 57 NDPS Act was made.
19. The FSL report ExPW11/D has confirmed that the recovered substance was ganja (cannabis).
20. Besides, the charges under NDPS Act, the accused Shahzad is also facing trial for using a prohibited arm and using fake registration number plate on the motorcycle recovered from the possession of FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 21 of 27 accused persons. Now let us see whether prosecution has proved the said charges against him.
21. The entire recovery i.e. recovery of contraband as well as the illegal arm and fake number plate, was effected at the same time and in this regard prosecution examined three witnesses i.e. PW1, PW2 and PW5. The testimony of these witnesses have been discussed above as to how in what manner the entire recovery was effected from accused persons. A detail discussion has already been made about the recovery of contraband in the preceding paragraphs. As far as the recovery of dagger is concerned it is clear from the testimony of the recoveries witnesses that they all supported the prosecution version that it was recovered from accused Shahzad when he used the same to threaten the member of police team. It is also clear from the testimony of these witnesses that the motorcycle driven by them was having two different number plate i.e. DL7S BG3333 (front) and DL7S BG3633 (back) while the actual number of motorcycle was DL7S BG3633 and it was a stolen bike. These witness duly identified the dagger as well as fake number plates and these articles were brought on record as ExP14 and ExP17 and ExP18. The prosecution also brought on record the seizure memo of the dagger and number plates as ExPW2/D and ExPW2/G. The said witnesses were cross examined at length, however, nothing material surfaced in their cross examination favouring the accused and these witnesses very well withstood with the test of the cross examination. Thus, the recovery of the contraband i.e ganja, an illegal arm i.e. dagger from FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 22 of 27 the accused Shahzad which was used by him to threaten the police team and fake number plate which was affixed and used by the accused persons on the motor cycle used in the said offence has been established by the prosecution against the accused Shahzad beyond reasonable doubt.
22. During the course of arguments Ld. LAC submitted that the prosecution case is highly doubtful as no public witness has been joined during investigation. Ld. LAC also submitted that sample has been sent to the FSL with delay of 49 days.
23. In the present case no public witness has been joined to the investigation, however it is clear from the testimony of the prosecution witnesses that the recovery witnesses as well as the IO made efforts to join public witnesses, however, none agreed. Thus, once, it has come on record that public witness could not be joined despite efforts were made then non joining of independent witness is not fatal to the prosecution case. In this regard this court is supported by the case law i.e. Ajmer Singh Vs State of Haryana reported as 2010 (2) SCR
785. The relevant para reads as under: It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 23 of 27 police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.
24. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused the police officials is shown. In Sunil Tomar Vs. State of Punjab, Criminal Appeal no. 16901691 of 2012 decided on 19.10.12, it was held : 'In a case of this nature, it is better if prosecution examines atleast one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case.
25. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even without corroboration by an independent witness if same is cogent and reliable. In Rohtas Vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that : 'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
26. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard the Hon'ble High Court in the case of Bheru Lal Vs State while observing that FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 24 of 27 recovery cannot be doubted for the reason of non joining of public witness held as under:
19.Dealing with a similar contention in 'Ram Swaroop v. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
27. Thus, in view of the settled legal position the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non joining of independent witness as firstly it is clear that sufficient efforts were made by the IO to join investigation and secondly, the testimony of the police officials do not suffer from any material contradiction. Furthermore, no animosity between the accused and the polife official has been pointed out therefore, even otherwise there is no reason to disbelieve the testimony of police officials.
28. As far as the delay in sending the sample to FSL is concerned, it is well settled law that delay in sending the sample is not fatal unless it is shown that the sample was tampered with. In the case of Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Hon'ble Supreme Court ignored the delay of 15 days and held that the statements of witnesses and the report of FSL shows sample was received in a FIR No.383/12 State vs Shahzad @ Azad U/s 20 NDPS Act, 27 Arms Act , 482/34 IPC PS Kalyanpuri 25 of 27 sealed cover and there was no tampering of the sample. In the cases of Ramesh Kumar Rajput @ Khan Vs. State of NCT of Delhi MANU/DE/0786/08 and Bilal Ahmad Vs. State 2011 III AD (Crl.) (DHC) 293, the delay of 13 days and 59 days respectively was ignored as the seals on the sample were found intact till the time sample was received by the FSL.
29. In the instant case also it is clear from the record that after recovery of contraband the pullinda of sample Mark A was sealed by the IO with seal of SK and after sealing, the sample pullinda alongwith the other pullindas were sent to the SHO who also put his seal of AK over the sample pullinda and same day deposited the sample pullinda with other case property with the malkhana mohrar on the same day i.e in the night of 03.11.2011. After that on 21.12.2011, the sample was sent to FSL and it was received by them with the intact seals of SK and AK. Thus, it is clear that the sample remain in sealed condition throughout, hence delay is not fatal in the present case.
30. The statement of the accused was recorded under section 313 Cr.P.C. to explain the above detailed incriminating circumstances existing against him. The accused claimed false implication; however, he has not mentioned any reason whatsoever, for his false implication. Accused has neither claimed animosity nor acquaintance with the police officials; hence, there is no chance or reason for his false implication. Furthermore, till date he has not raised any protest against his alleged false implication which shows that he has taken this plea for the sake of plea and there is no substance in it.
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31. The prosecution witnesses were cross examined by Ld. LAC, however, no material contradiction has surfaced on record to disbelieve or discredit their testimony. The contradictions which have emerged are insignificant and are insufficient to discredit the testimony of the prosecution witnesses.
32. From the aforesaid discussions, it is held that prosecution has established beyond reasonable doubt that accused Shahzad ganja weighing 1050gm alongwith a dagger and fake number plate was recovered from his possession. The quantity of ganja recovered from the accused is an intermediate quantity ie 1050 gm which falls u/s 20
(b)(ii)(B) NDPS Act however, it seems that the charge was, inadvertantly, framed u/s 20 (b)(ii)(c) NDPS Act. Accordingly, accused Shahzad @ Azad is held guilty under Section 20 (b)(ii)(B) NDPS Act, for possession of the said contraband and u/s 27 Arms Act of using illegal arm i.e. dagger and u/s 482 IPC for using a false property mark (number plate) i.e. using fake registration number plate.
AJAY Digitally signed by AJAY
GUPTA
Location: Delhi
GUPTA Date: 2018.02.26
15:57:23 +0530
(Ajay Gupta)
ASJ02/ Special Judge(NDPS)
KKD/East/Delhi
Announced in open
court on 26.02.2018
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