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Delhi District Court

State vs Shah Nawaj @ Sanu, S/O Istaq Ali on 18 May, 2011

          IN THE COURT OF MS. SANTOSH SNEHI MANN
               SPECIAL JUDGE, NDPS (CENTRAL)
                  TIS HAZARI COURTS, DELHI

SC No. : 02/2010
FIR No. : 146/2009
U/s     : 20 NDPS Act
PS      : Kamla Market

State         V/s           Shah Nawaj @ Sanu, S/o Istaq Ali
                            R/o House no. 1727, Rozgran, Delhi.

Date of filing of Charge Sheet              : 04.02.2010
Date of taking up matter for the first time : 04.02.2010
Date of conclusion of arguments             : 26.04.2011
Date of Judgment                            : 18.05.2011

JUDGMENT:

Accused was charge-sheeted to face trial for committing the offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as the "NDPS Act") on the allegations that on 08.12.2009 at about 9.30 pm in the verandah of Kotha no. 70 at G. B Road, Kamla Market, Delhi he was found in possession of 240 grams "Charas" in contravention to the provisions of NDPS Act.

2. In brief prosecution story is:

On 08.12.2009 at about 9.15 pm SI Brijesh Mishra alongwith Ct. Amit Kumar and Ct. Ram Karan was present near Kotha no. 54, when one secret informer came and informed the Sub-Inspector that one young person, 24-25 year old was standing near a pillar in front of kotha no. 70, G. B Road, Delhi who was in State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 1 of 16 possession of Smack. SI gave this information to SHO who directed him to immediately conduct raid. SI requested 4-5 persons passing by to joint the proceedings but none agreed. Without wasting time SI constituted a raiding party with accompanying staff and reached at the disclosed place at about 9.30 pm. Accused was found standing at the above place, who was apprehended on the identification and pointing out of the informer. Accused was informed about prior information with the police and on his search one polythene containing black colour bar was recovered from the right pocket of his pant, which was found to be Charas. Total weight of Charas was 240 grams out of which two samples of 50 grams were drawn. The sample and the recovered Charas were sealed in the pulandas and they were seized.

SI prepared the tehrir on the basis of which FIR was registered at PS Kamla Market. Further investigation was assigned to SI Jaipal Singh, who reached at the spot and completed the proceedings including formal arrest of the accused. During investigation one sample pulanada was sent to FSL for examination. After completion of investigation charge-sheet was filed in the Court under section 20 of NDPS Act.

3. Copies were supplied to the accused. Prima Facie offence punishable under section 20 of the NDPS Act was found to be made out against him. Charge was framed accordingly to which accused pleaded not guilty and claimed trial. Prosecution was directed to lead evidence.

4. Prosecution has examined 9 witnesses to prove its case:

PW-3 Ct. Shamsher Singh was posted at PS Kamla Market on 21.12.2009, who on the instructions of SI Jaipal collected one sealed parcel bearing seals of 'BM' and 'SJK' alongwith form FSL bearing the same seal impression vide RC no. 62/21 for depositing them at FSL, Rohini. He deposited the parcel alongwith form FSL against acknowledgment and handed over the same to MHC(M).

PW-4 ASI Mohinder Singh was the duty officer at PS Kamla Market on 08.12.2009. He registered FIR vide Ex. PW-4/B on the basis of tehrir sent by SI Brijesh Mishra on which he made endorsement Ex. PW-4/A. PW-5 HC Ramdhan produced the record from the office of ACP Kamla Market to the effect that on 10.12.2009 an information under section 57 of NDPS Act was received in the office vide Ex. PW-5/B which was entered in the diary register at serial no. 9157 (photocopy Ex. PW-5/A).

PW-9 HC Ajay Kumar is the MHC(M) PS Kamla Market, he testified that on 08.12.2009 at about 11.15 pm SHO Inspector Surenderjit Kaur called him in her office alongwith register no. 19 and handed over to him three sealed parcels bearing the seals of 'BM' and 'SJK' alongwith form FSL, bearing same seal impressions and copy of seizure memo. He made entry at serial no. 2557 in the register no. 19 (copy Ex. PW-9/A). Witness stated that on the same day SI Jaipal Singh deposited personal search articles of the accused including Rs. 200/-, one mobile phone make NOKIA and a State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 3 of 16 notice under section 50 of NDPS Act. According to this witness on 21.12.2009 one sealed parcel bearing seals of 'BM' and 'SJK' alongwith form FSL bearing same seal impressions was sent to FSL through Ct. Shamsher (PW-3) vide RC no. 62/21 (copy Ex.

PW-9/B), endorsement with respect to which was made at serial no. 2557 at point P to P-1. He stated that Ct. Shamsher brought back the acknowledgment (copy Ex. PW-9/C). Witness further stated that on 16.03.2010 Ct. Harish deposited one sealed parcel bearing seal of FSL and the result. The parcel was kept in the malkhana and the result was handed over to IO with respect to which endorsement was at serial no 2557 at point Q to Q-1.

PW-1 Ct. Amit Kumar, PW-2 Ct. Ram Karan and PW-6 SI Brijesh Mishra are the witnesses of search, recovery and seizure.

PW-8 Inspector Surinder Jeet Kaur was the SHO at the time of incident and PW-7 SI Jaipal Singh is the investigating officer (IO).

5. All the incriminating evidence on record was put to the accused. His statement was recorded under section 313 Cr. P. C without oath. He denied the incriminating evidence against him and claimed that he was not present at the spot and was picked up by the police from Lahori Gate alongwith 3 - 4 boys where they were gambling in a corridor. He denied that any contraband was recovered from his possession and claimed that he has been implicated falsely since he is the BC (Bad Character) of the area. Though he desired to lead evidence in defence but no witness was State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 4 of 16 examined. DE was closed on the submission of Ld. defence counsel that witnesses were not ready and willing to come and depose.

6. I have heard Mr. Rajiv Mohan, Ld. Addl. PP for the State and Mr. S. Shah, defence counsel for the accused. I have carefully gone through the record.

7. PW-6 SI Brijesh Mishra testified that on 08.12.2009 he alongwith Ct. Amit (PW-1) and Ct. Ramkaran (PW-2) was present at G. B Road being Division Officer of the area when at about 9.15 pm they were standing in front of Kotha no. 54, G. B Road, an informer came and informed him that a young boy aged about 22 - 25 years was standing near Kotha no. 70 with Charas. According to the witness, he informed the SHO who directed him to conduct raid and thus raiding party was prepared. He requested 3 - 4 persons to join the raid but none agreed. In these circumstances he briefed the accompanying Constables and reached near Kotha no. 70 alongwith them where accused was seen standing near a pillar and was apprehended on the pointing out of the informer. According to the witness a written notice under section 50 of NDPS Act (carbon copy Ex. PW-1/A) was given to the accused and he was informed that police had the information that he was in possession of Charas. Witness stated that accused was also informed that it was his legal right to give his search before a Gazetted Officer or a Magistrate and also that if he wanted he could take search of the police party. Accused refused to avail the offer which was recorded on the carbon copy of the notice.

8. According to PW-6 accused was searched and a polythene containing black bar was recovered from the right pocket of his trouser which was found to be Charas by appearance. Weight of the recovered Charas was 240 grams from which 2 samples of 50 grams each were taken and kept in two small plastic jars which were marked serial no. 1 and serial no. 2. Remaining charas was kept in a separate jar and was marked serial no. 3. Witness stated that all the plastic jars were sealed with the seal of 'BM' and were seized vide memo Ex. PW-1/B. According to the witness he filled the FSL form on which he affixed his seal of 'BM'. He prepared the rukka Ex. PW-6/A which he handed over to PW-2 alongwith the case property, FSL form and carbon copy of the seizure memo with direction to hand over the rukka to duty officer and other articles to the SHO. Witness stated that after about 45 minutes PW-2 returned with the IO SI Jaipal Singh (PW-7) and he handed over the charge of the accused to him and briefed him. According to the witness IO prepared the site plan at his instance vide Ex. PW-6/B.

9. PW-6 identified the Charas recovered from the accused as Ex. P-1 (produced in a sealed plastic container serial no. 3), the remnant sample of Charas produced in the sealed envelope Mark-1 as Ex. P-2 and the sealed plastic container bearing serial no. 2 as second sample of the Charas, Ex. P-3.

10. PW-1 Ct. Amit Kumar and PW-2 Ct. Ram Karan have deposed on the lines of PW-6 SI Brijesh Mishra. In addition PW-2 testified that he handed over the rukka to the duty officer at the State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 6 of 16 police station who registered FIR. He further stated that he handed over all the sealed parcels alongwith form FSL and copy of seizure memo to SHO Inspector Surender Jeet Kaur who affixed her seal on each parcel and form FSL and called MHC(M) to whom she handed over the articles. He further stated that he handed over the copy of FIR to SI Jaipal Singh and returned to the spot with him.

11. PW-8 Inspector Surinder Jeet Kaur testified that on 08.12.2009 while she was posted as SHO PS Kamla Market, at about 9.20 pm she received information through SI Brijesh Mishra (PW-6) that a person was standing near Kotha No. 70 with intention to sell Charas. Witness stated that as she was busy in her other official work she directed PW-6 to take action as per law. According to her at about 11.15 pm Ct. Ram Karan (PW-2) came to her office and handed over 3 sealed parcels bearing serial no. 1, 2 and 3 with the copy of seizure memo and form FSL. The parcel and the form FSL had the seal of 'BM' and signatures of SI Brijesh Mishra. Witness stated that she inquired about the FIR no. from the duty officer and mentioned the case particulars on the parcels, form FSL and carbon copy of seizure memo and therefore affixed her seal of 'SJK' on each parcels and the form FSL and also put her signatures on them. According to her thereafter she called HC Ajay Kumar (PW-9) alognwith register no. 19 and handed over to him all the three parcels, form FSL and copy of seizure memo with respect to which he made entry in the register no. 19, which she signed. Witness further stated that she lodged DD no. 35-A (Ex. PW-8/A) to this effect and that at about 12.00 in the night SI Jaipal State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 7 of 16 Singh (PW-7) produced the accused before her. She further deposed that on 09.12.2009 SI Jaipal Singh prepared the report under section 57 of NDPS Act (Ex. PW-5/B) which she forwarded to ACP Kamla Market.

12. PW-7 SI Jaipal Singh testified that on 08.12.2009 investigation of this case was assigned to him. He received rukka (Ex. PW-6/A) and copy of FIR (Ex. PW-4/B) from PW-2 and reached at the spot where the met SI Brijesh Mishra (PW-6), Ct. Amit Kumar (PW-1) and the accused in the custody of PW-6. According to this witness he arrested the accused vide memo Ex. PW-1/C, conducted his personal search vide Ex. PW-1/D in which notice under section 50 of NDPS Act (Ex. PX-2) was recovered and prepared the site plan Ex. PW-6/B. Witness stated that he produced the accused before the SHO and on 09.12.2009 sent a report under section 57 of NDPS Act (Ex. PW-5/B). According to this witness on 21.12.2009 he sent the exhibit to FSL through Ct. Shamsher Singh (PW-3) and the result was received vide Ex. PX-1.

13. It was submitted by Ld. Addl. PP for the State that accused was apprehended on the basis of specific information. He was searched in due compliance of the statutory procedure under section 50 of NDPS Act. It was submitted that though efforts were made by PW-6 SI Brijesh Mishra to join the public persons in the proceedings but none had agreed, the police witnesses have deposed consistently, FSL result has confirmed the contraband to be "Charas" and thus submitted that accused be convicted for State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 8 of 16 committing the offence punishable under section 20 of NDPS Act.

14. Ld. Defence counsel has argued in defence of the accused that secret information was neither verified nor proved; search was made in violation of section 50 of NDPS Act; there is no independent witness despite the fact that incident took place at a crowded public place and that there are inherent contradictions and inconsistencies in the testimony of material witnesses.

15. One of the defence pleas raised has been that the secret information on the basis of which accused was apprehended was not verified, receipt of secret information has not been proved and it was not communicated to the senior officer.

16. As per the evidence on record, an information was received by PW-6 while he was patrolling in the area of his division alongwith PW-1 Ct. Amit Kumar and PW-2 Ct. Ram Karan that a 22-25 years old boy was standing near Kotha no. 70 at G. B Road with Charas in possession. Testimony of PW-6, PW-1 and PW-2 is consistent on this fact. PW-6 SI Brijesh Mishra is an empowered officer under section 42 of NDPS Act [Reference to Government Notification No. F.10(76)/85 Fin.(G)]. The place disclosed in the information about presence of a person with contraband is a public place and thus for the purpose of search, recovery, seizure and arrest, section 43 of NDPS Act would be applicable. It is a settled legal position that when on the basis of information, search and seizure is made at a public place, requirement of writing the information prior to search and thereafter sending that information in writing to the senior officers as contemplated in section 42 of State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 9 of 16 NDPS Act would not be applicable [Reference to Constitution Bench decision of the Hon'ble Supreme Court of India in "Karnail Singh V/s State of Haryana, (2009) 8 Supreme Court Cases 539" and decision of Hon'ble High Court of Delhi in "Ramesh Kumar Rajput @ Khan V/s State (NCT of Delhi), 2009 Drugs Cases (Narcotics) 289"].

17. In view of the difference in applicability of section 42 and 43 of NDPS Act having regard to the place of search, as interpreted by the superior courts in the judgments referred above, PW-6 was not under any legal obligation to reduce the information into writing and then to forward it to the senior officers because search, seizure and arrest was made at a public place. Nevertheless as abundant precaution, PW-6 telephonically conveyed the information to Inspector Surinderjeet Kaur (PW-8), a senior officer before acting on the information and has been corroborated on this fact by PW-8. In the facts and circumstances of this case since section 42 of NDPS Act is not applicable, the defence plea about non-compliance thereof has no relevance.

18. Ld. Defence counsel has assailed legality of search of the accused on the ground that it was not in accordance with section 50 of NDPS Act. On this aspect it was argued that signatures of the accused on the carbon copy of the notice under section 50 of NDPS Act (Ex. PW-1/A) is in different ink than his signatures on the refusal of the offer.

19. As per evidence on record, accused was searched by State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 10 of 16 PW-6 in the presence of PW-1 Ct. Amit Kumar and PW-2 Ct. Ram Karan and 240 gram "Charas" was recovered from the right side pant pocket of the accused. Since recovery is shown to have been made from the body of the accused, section 50 of NDPS Act is applicable [Reference to State of Himachal Pradesh Vs. Pawan Kumar, (2005) 4 SCC 350 and State of Haryana V/s Ranbir @ Rana, AIR 2006 SC 1796]. According to section 50 of NDPS Act, when an authorized officer under section 42 of NDPS Act is about to search any person under the provisions of section 41, 42 and 43 of NDPS Act, he shall if the person to be searched so requires, take such person without unnecessarily delay to the nearest Gazetted Officer of any of departments mentioned in Section 42 of NDPS Act or to nearest Magistrate.

20. Prosecution witnesses PW-1 Ct. Amit Kumar, PW-2 Ct. Ram Karan and PW-6 SI Brijesh Mishra have deposed consistently that before conducting search of the accused, he was informed about his legal right to give his search before a Gazetted Officer or the Magistrate. It has come in the testimony of all the witnesses that a written notice under section 50 of NDPS Act was given to the accused, despite which he refused to avail the offer. Ld. Defence counsel has assailed the testimony of the witnesses about service of the written notice under section 50 of NDPS Act on the ground that signature of the accused about receipt of the written notice under section 50 of NDPS Act on the carbon copy of notice (Ex. PW-1/A) is different than his signature on the endorsement of his refusal made on Ex. PW-1/A. State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 11 of 16

21. PW-6 SI Brijesh Mishra is the author of the written notice and he was the best person to explain the difference in the ink of signatures of the accused on Ex. PW-1/A. It is noteworthy that PW-6 stated in the cross-examination that he used his pen for preparing the notice, but stated that he did not remember whether the same pen was used by the accused for signing. This witness was not put any question in the cross-examination about difference in the ink of signatures of the accused and thus he had no occasion or opportunity to explain the difference in the ink of signatures of the accused at 2 places on Ex. PW-1/A. In the absence of due opportunity to the PW-6 to explain, it would not be in the interest of justice to discard his testimony (Reference to State of UP V/s Nahar Singh, 1998 (3) SCC 561).

22. In the same context it is noteworthy that PW-1 Ct. Amit Kumar and PW-2 Ct. Ram Karan have stated in the cross- examination that notice under section 50 of NDPS Act was signed by the accused in their presence and nothing has come in their cross-examination to disbelieve their testimony on this fact.

23. There is no specific form prescribed for conveying the information required to be given to accused under section 50 of NDPS Act. There is no specific mode or manner prescribed. In order to determine compliance of section 50 of NDPS Act, Court has to see the substance and not the form of intimation (Reference to "State of Rajasthan V/s Ram Chandra, AIR 2005 SC 2221"). The evidence on record about compliance of section 50 of NDPS Act includes testimony of 3 police witnesses and the documents.

Nothing has come in the cross-examination of any of the witnesses to create any doubt about service of the written notice under section 50 of NDPS Act to the accused. Service of notice is also proved by way of written document Ex. PW-1/A. The material on record clearly shows that statutory procedure for search under section 50 of NDPS Act was duly followed for search of the accused. It is noteworthy that no suggestion was given to any of the witnesses that written notice under section 50 of NDPS Act was not given to the accused.

24. It was contended by Ld. Defence counsel that since no public person was joined as a witness of the search, recovery and seizure, despite the fact that incident took place at a public place, testimony of police witnesses cannot be relied upon. There is no merit in this contention because it is a settled legal position that there is no bar in relying on the testimony of the police witnesses if after due scrutiny it is found credible and trust-worthy. It is matter of common knowledge that public witnesses are generally reluctant to join the police proceedings and if despite due efforts made, public persons do not join, testimony of the police witness can be made basis of conviction if found credible and trustworthy. (Reference to Supreme Court decision in G. Sriniwas Goud V/s State of AP (2005) 8 SCC 183) and Delhi High Court's decision in Gopal V/s State, 153 (2008) DLT 287; Ramesh Kumar Rajput @ Khan V/s State (NCT of Delhi), 2009 Drugs Cases (Narcotics) 289 and Supreme Court's decision in "Ajmer Singh V/s State of Haryana State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 13 of 16 2010(1) Drugs Cases(Narcotics) 99"). Moreover though the place of incident is a public place but the time of search and recovery as per material on record is 9.30 pm. It has specifically come in the cross-examination of PW-1 and PW-2 that the shops were closed at that time. It has come in the cross-examination of PW-6 that though usually the place of incident is crowded but there was no crowd at that time. Testimony of all these witnesses leave no doubt that reasonable efforts were made by the police to join the public witnesses and there is no reason to disbelieve their testimony on this account.

25. As regards inconsistencies in the testimony of witnesses, it was argued by ld. Defence counsel that while PW-1 and PW-2 stated that PW-2 went to the police station with rukka on foot, PW- 6 stated that he went to the police station on the motorcycle. Inconsistency and contradiction pointed out is inconsequential because it does not go to the substratum of the case and the offence alleged against the accused ("Dalel Singh V/s State of Haryana, 2009(2) Drugs Cases (Narcotics) 289").

26. Apprehension of the accused on the alleged date, time and place on the basis of a information has been established by the testimony of three police witnesses namely PW-1 Ct. Amit Kumar, PW-2 Ct. Ram Karan and PW-6 SI Brijesh Mishra. Deposition of these witnesses is consistent and does not leave any doubt that accused was informed about the information with the police and was told about his legal right to give his search in the presence of a Gazetted Officer or the Magistrate. Ex. PW-1/A is the State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 14 of 16 carbon copy of the said notice bearing signatures of the accused and his refusal. Evidence on record thus shows that accused had refused to avail the offer.

27. Recovery of 240 grams of contraband from the possession of the accused is proved by the deposition of PW-1, PW-2, PW-6 and the seizure memo Ex. PW-1/B. It is proved on record that FIR (Ex. PW-4/B) was registered on the basis of tehrir (Ex. PW-6/A) prepared by PW-6. Accused has failed to substantiate the plea that he was apprehended from a different place under different circumstances.

28. Testimony of PW-6 SI Brijesh Mishra, PW-2 Ct. Ram Karan and PW-8 Inspector Surinderjeet Kaur proves on record that sealed pulandas of the sample contraband and the recovered contraband were handed over to PW-8 Inspector Surinderjeet Kaur by PW-2 Ct. Ram Karan at the police station. Testimony of PW-8 Inspector Surinderjeet Kaur and PW-9 HC Ajay Kumar and the malkhana register (Ex. PW-9/A) shows that the sealed pulandas of the case property were deposited in the malkhana alongwith FSL form and carbon copy of seizure memo by PW-8 Inspector Surinderjeet Kaur who affixed her own seal on them. Testimony of PW-3 Ct. Shamsher Singh and PW-9 HC Ajay Kumar is consistent on the fact that sealed sample pulanda was deposited at FSL, Rohini at 21.12.2009. They have been supported by documents, RC (Ex. PW-9/B) and acknowledgment given by FSL Rohini (Ex. PW-9/C).

29. Ex. PX-1 is the report of Dr. Madhulika Sharma, State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 15 of 16 Assistant Director(Chemistry), FSL Laboratory, Delhi which is per- se admissible under section 293 Cr. P. C. The report has gone totally unassailed. As per this report, the sealed sample pulanda bearing seals of 'BM and 'SJK' was received at FSL with seals intact, which tallied with the specimen seals as per forwarding letter (FSL form). The sample was examined by microscopic, chemical tests, chromatography and instrumental methods and has been confirmed to be "Charas", which falls under section 2(iii)(a) of NDPS Act. The quantity of Charas proved to have been recovered from the possession of accused is 240 grams, which is less than commercial quantity but more than small quantity as per entry no. 23 in the table notified in the NDPS Act vide S.O. 1055(E), dated 19.10.2001. Accused is thus held guilty for committing the offence punishable under section 20(B) of the NDPS Act.

Announced in the open Court (Santosh Snehi Mann) 18th of May, 2011 Special Judge, NDPS (Central) Tis Hazari Courts, Delhi State V/s Shah Nawaj; FIR No. : 146/2009; PS : Kamla Market Page 16 of 16