Delhi District Court
State vs Pankaj Kumar on 19 December, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDL. SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
FIR no.204/11
U/s 20 NDPS Act
PS BHD Nagar
SC No. 4/2/12
State
Vs.
Pankaj Kumar s/o Sh.Suresh Kumar .......... Accused
Challan filed on : 07.03.2012
Reserved for Order on: 08.12.2014
Date of decision: 19.12.2014.
JUDGMENT
The facts in brief of prosecution case are that on 18.12.2011, on the basis of secret information, a raiding party was constituted and reached at the spot i.e.Radha Soami Satsang, Dinod Bhawani Dichau, Najafgarh where they took their positions. At about 4 p.m accused was seen coming on cycle holding a white colour cloth thaila on his right shoulder and he was pointed out by the secret informer. The accused was got stopped and on enquiry he disclosed his name Pankaj. State Vs.Pankaj Kumar FIR No.204/11 Page No. 1 of 31 He was informed about the secret information and he was apprised about his legal rights. Notice u/s 50 NDPS Act was served upon him. He refused to avail his legal rights.
2. It is further the case of the prosecution that the thaila being carried by the accused was checked and a transparent polythene was found which was found containing some substance wrapped in some separate think transparent polythenes in the form of 'Gola' (round shape thing) which on smelling was found to be charas. Total 32 golas were found and on weighing it came to be 1 kg 400 gms. Form FSL was filled. Samples were drawn from the said substance.
3. It is further the case of the prosecution that IO prepared pukka and handed over the same to HC Pawan with pullandas of case property and samples with the direction to hand over the pullandas to SHO and rukka to duty officer. He went to PS and got the case registered and handed over the case property to SHO.
4. It is further the case of the prosecution that the accused was arrested and his personal search was conducted. State Vs.Pankaj Kumar FIR No.204/11 Page No. 2 of 31 He was interrogated and his disclosure statement was recorded. Site plan was prepared. IO prepared report u/s 57 NDPS Act and forwarded to ACP. The investigation was done and after completion of investigation, challan was filed. 5 After supplying the copies of the challan and accompanying documents to the accused, arguments on charge were heard and upon finding prima facie case against the accused, the charge against him was framed u/s 20 (ii) (c) of NDPS Act on 23.07.2012 to which the accused pleaded not guilty and claimed trial.
6. The prosecution in support of its case, in all has examined as many as 14 witnesses. PW1 ASI Hari Kishan is the IO who has deposed that on 18.12.2011, a secret ifnormer came to him at about 2.30 p.m and informed that one person Pankaj would come on cycle at about 4 p.m carrying huge quantity of charas for supply of the same at Najafgarh. The secret information was produced before Insp.Ranjeet Singh who informed ACP Sh Surender Singh and thereafter information was recorded in DD no.6A copy of which is mark PW1/A and it was produced before Insp.Ranjeet and then a State Vs.Pankaj Kumar FIR No.204/11 Page No. 3 of 31 raiding party consisting of himself, HC Pawan and HC Sriom was organised and they left the PS in vehicle no. DL 1CJ 4415 and reached Nangloi at about 3.30 p.m where some public persons were requested to join the raiding party but they refused and went away without disclosing their names and addresses. He has further deposed that thereafter the raiding party reached a the spot and took their position. At about 4 p.m, a cyclist came on a cycle from the side of Dichau Village who was holding a white colour cloth thaila on his right shoulder and he was pointed out by the secret informer. The accused was stopped. He disclosed his name Pankaj. He was apprised about the secret information and about his legal rights that if he desires, he can condcut the search of the police party before his search and also the search of vehicle and that he can also be searched before any Magistrate or Gazetted officer for which the arrangement can be made. Notice u/s 50 NDPS Act was served to him. Accused refused to avail his rights and his refusal from point A to A is available on carbon copy of notice Ex.PW1/A. He has further deposed that he took the thaila of accused and checked the same. It was found containing one transparent polythene which was further containing some substance wrapped in some separate thin transparent polythene State Vs.Pankaj Kumar FIR No.204/11 Page No. 4 of 31 in the form of 'Gola' which on smelling appears to be charas. Total 32 golas were recovered total weight of which came to be 1 kg 400 gms. He has further deposed that out of 32 golas of charas, two golas were randomnly taken as sample and the weight of one of the said gola of charas was found to be 52 gms and second gola was 46 grams which were given mark A and B respectively. Remaining charas in the forms of golas were kept back in the same polythene and then kept in the bag and given mark C. Form FSL was filled. All the pullandas were sealed with the seal of HK and seal was also affixed on FSL form and seal after use was handed over to HC Hari Om. He took the said pullandas into possession vide seizure memo Ex.PW1/B. He has further deposed that he prepared rukka Ex.PW1/C and handed over the rukka and pullandas with sample pullanda, FSL form and seizure memo to HC Pawan for registration of case and handing over of pullandas to SHO. He has further deposed that SI Ashique Ali came at the spot with HC Pawan and he produced the accused to him alongwith documents and cycle. SI Ashique Ali prepared the site plan. He interrogated the accused and arrested him. He identified the case property i.e. samples drawn as Ex.P1 and P2 and remaining charas Ex.P4. He also identified cycle Ex.P3. In State Vs.Pankaj Kumar FIR No.204/11 Page No. 5 of 31 cross examination he has deposed that the accused was wearing pant and shirt at the time when he was apprehended but he does not remember the colour of shirt and pant. He recognized the colour and smell of charas. On the date of recovery, he was not carrying drug testing kit as in his opinion, it was not required on that day because the information about the charas which he can identify by smell and colour. Accused was carrying bag on his shoulder. He was recalled for cross examination after filing an application u/s 311 Cr.PC and It has been stated in further cross examination that at the time of receiving secret information, he was alone. He briefed the members of the raiding party after producing the secret informer before Inspector for about 45 minutes. There was no shop or residential house near Radha Swami Satsang Bhawan, dichau Najafgarh Road. No security guard was found at the gate of Radha Swami Satsang Bhawan. No public person was noticed by him at the spot before coming of accused. He did not give any notice to any of the public person vol. Because none disclosed their name. The weight of the case property was measure near gypsy. The golas were counted by him. Rukka was taken in gypsy at 6 p.m. No addition or alteration was done in the memos. He denied the suggestion that no raiding party State Vs.Pankaj Kumar FIR No.204/11 Page No. 6 of 31 was constituted or that accused was lifted from his house and falsely implicated in this case.
7. PW12 SI A.A. Khan has deposed that on 18.12.2011 at about 7 p.m, investigation was entrusted to him and he alongwith HC Pawan reached at the spot where accused alongwith other documents were handed over to him by ASI Hari Kishan. He interrogated the accused and arrested him vide memo Ex.PW5/A and conducted his personal search vide memo Ex.PW5/B. He has stated that in personal search of accused Rs.300/ in cash and original copy of notice u/s 50 NDPS Act were recovered. He seized the cycle vide memo Ex.PW5/C. He prepared the site plan Ex.PW12/A. ASI Hari Kishan handed over him the original copy of seizure memo and he inserted FIR number on it. He recored the disclosure statement Ex.PW5/C. He prepared report u/s 57 NDPS Act which is Ex.PW11/A. He has further deposed that on 21.12.2011, the case property, pullanda A was sent to FSL through Ct. Sukhdev vide RC no.133/21. On receiving the FSL result, he filed the same in the court which is Ex.PW8/A. The original notice u/s 50 NDPS Act produced by MHCM is Ex.PW12/B. In cross examination, he has stated that he State Vs.Pankaj Kumar FIR No.204/11 Page No. 7 of 31 recorded the disclosure statement of accused while sitting on a cot brought by the labourers who were working in the adjoining fields. He did not notice as to how many persons were present in and around Satsang Bhawan. He did not record statement of any witness at the spot. He did not ask any of the labourers present near the spot to become witess to the disclosure statement and arrest memo of the accused or of any of the documents which he prepared at the spot. Ex.PW5/A is in the handwriting of HC Pawan or HC Sriram. He cannot say exactly who filled the arrest memo.
8. Mutatis mutandis PW5 HC Pawan Kumar and PW10 HC Sriom (should have been PW11) have deposed to the same effect on all the material facts as per version of PW1 IO ASI Hari Krishan, therefore, it will be a futile exercise to discuss their testimony here for the reason of brevity. PW5 has additionally deposed that he took rukka to PS and handed over to Duty Officer and pullandas to SHO.
9. PW2 Insp. Ranjeet Singh has deposed that on 18.12.2011, ASI Hari Kishan came to him with secret informer and after talking with him, he informed ACP who directed to State Vs.Pankaj Kumar FIR No.204/11 Page No. 8 of 31 conduct raid. He directed ASI Hari Kishan to conduct raid.
10. PW3 HC Ramphal has deposed that on 18.11.2011 he recorded DD no.6&7 which is Ex.PW3/A and Ex.PW3/B.
11. PW4 ASI Purshotam Singh has deposed that on 18.12.2011 he received information from HC Pawan which was recorded in DD no.29 copy of which is Ex.PW4/A. He again recorded information vide DD no.30A copy of which is Ex.PW4/B.
12. PW6 Ct. Sukhdev has deposed that he had taken one pullanda to FSL and deposited the same there. He was declared hostile wherein he has stated that the pullanda was having seal of RSL with HK and that he took FSL also vide RC no.133/21.
13. PW7 Ct Sudhir Kumar has typed the FIR on computer being computer operator. The copy of FIR is Ex.PW7/A. State Vs.Pankaj Kumar FIR No.204/11 Page No. 9 of 31
14. PW8 Dr.Lingaraj Sahoo has deposed that he examined the parcel and on examination the substance was found to be charas. His report is Ex.PW8/A.
15. PW9 HC Rattan Kumar has deposed that on 19.12.2011 report u/s 57 NDPS Act and copy of DD no.6 were received in the office of ACP which was entered in register at sr.no.602&603 copy of which is Ex.Pw9/C. The report and DD is Ex.PW9/A and B.
16. PW10 HC Nand Kishore has deposed that report u/s 57 NDPS was received in the office of ACP sent by SI A.A.Khan, copy of which is Ex.PW10/A and he made entry no.4561 Ex.PW10/B in this respect.
17. PW11 Inps. Rajbir Singh Lamba has deposed that on 18.12.2011, HC Pawan Kumar came to him and handed over three pullandas, FSL form and seizure memo. He called MHCM and deposited the same in the malkhana. He filled FIR number on the documents. He has further deposed that SI AA Khan produced report u/s 57 NDPS Act and he forwarded the same to ACP. The report is Ex.PW11/A. State Vs.Pankaj Kumar FIR No.204/11 Page No. 10 of 31
18. PW13 Ct.Akhilesh has deposed that on 18.12.2011 he was working as driver on gypsy DL 1CJ 4415 and he parked the vehicle aside as directed by ASI Hari Kishan. At about 5 p.m he alongwith HC Pawan who has having case property and rukka went to PS in gypsy and then returned at the spot with SI AA Khan.
19. PW14 HC Sanjeet has deposed that he was working as MHCM and he made entry no.783 Ex.PW14/A regarding deposit of case property and Entry Ex.PW14/B regarding deposit of personal search of accused. He has further deposed that on 21.12.2011, the case property was sent to FSL vide RC no.133/21 Ex.PW14/C. The acknowledgment is Ex.PW14/D.
20. The incriminating evidence against the accused was put to him in his statements of accused recorded u/s 313 Cr.PC wherein the accused has stated that he is innnocent and he has been falsely implicated in this case.
21. I have heard the final arguments from the Ld. State Vs.Pankaj Kumar FIR No.204/11 Page No. 11 of 31 Counsel for the accused as well as Ld. Addl.PP for the State. Ld. Addl.PP for the State has drawn the attention of the court on the statements of witnesses and their cross examinations and stated that the prosecution has proved its case beyond reasonable doubts. It is submitted that all the relevant provisions have been complied with by the prosecution. Ld. Addl.PP has also drawn the attention of the court on the cross examination of witnesses and stated that the testimonies of each witness could not be shattered in cross examination. So, the accused may kindly be convicted.
22. Ld. Counsel for the accused has also drawn the attention of the court on the testimonies of witnesses and pointed out certain contradictions with regard to timings. Ld. Counsel has further submitted that this case is alleged to have been based on secret information but the prosecution has failed to associate any public witness at the time of recovery and arrest while the place of arrest of accused is a densely crowded area. It is submitted that even no name of the public person has been disclosed by the witnesses. It is stated that the prosecution has also failed to show that the case property was kept in malkhana in proper custody. Ld. Counsel has stated that as per State Vs.Pankaj Kumar FIR No.204/11 Page No. 12 of 31 the evidence the quantity taken as sample is different from the quantity which was received in FSL. Ld. Counsel has further argued that the log book of vehicle in question has not been produced in this case. It is further contended that the FIR number of the case was written before reaching of IInd IO at the spot. It is submitted that the prosecution has failed to prove its case beyond reasonable doubt and therefore the accused may kindly be acquitted in this case.
23. Dealing with the first contention of the Ld. Counsel regarding contradictions in the statements of witnesses, In case law State of Rajasthan Vs. Kalki, AIR 1981 SC 1390 their Lordships have observed that in the deposition of witnesses there are always normal discrepancies, however honest and truthful they may be. It was further observed that these discrepancies are due to normal errors of observations, normal errors of memory, due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence and the like. It was also observed that material discrepancies are those which are not normal and are not expected of a normal person. The infirmities pointed out by the Ld. Counsel, in my considered opinion, keeping in view the State Vs.Pankaj Kumar FIR No.204/11 Page No. 13 of 31 observations made by their Lordships of Supreme Court, cannot be said to be material or significant which go to the root of matter, particularly, when basic facts have been proved from the documents proved on record.
24. Another contention of the Ld. Counsel is that no public witness was associated by the police at the time of arrest of accused and seizure of charas. The present case hings solely on the testimony of official witnesses. The court has to presume that official acts are performed in due course of law. It will not be correct approach to suspect the integrity of police officials. Their testimonies has to be appreciated like any other witness. However, it is rule of caution that Court should scrutinize the testimony of police officials with utmost care and caution to assure itself of its credibility. The lack of cautious approach is likely to cause miscarriage of justice. In case Law Munshi & Ors Vs. State 20(1981) DLT(SN) 26 it has been observed that public generally hesitate to associate with police therefore the police has to take help of person known to them or the complainant. In case Natho Singh Vs. State, AIR 1973 SC 2763 it has been held that evidence of police officials cannot be discredited in the absence of the hostility to the State Vs.Pankaj Kumar FIR No.204/11 Page No. 14 of 31 accused. In case State Vs. M.M.Methew, AIR 1978 SC (1571) it was held that evidence of police officials cannot be branded as highly interested only on the ground that they are interested in the success of their case. In Appa Bhai Vs. State of Gujarat AIR 1988 SC 696 it has been held that civilized people are generally insensitive when a crime is committed in their presence. They keep themselves away from the court unless it is inevitable and they try to avoid to involve themselves. In 'Ajmer Singh vs. State of Haryana', 2010 (2) SCR 785, the Hon'ble Supreme Court held that it is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witness is not absolute. If the police officer is unable to join any public witness after genuine efforts, the recovery made by the police officer would not be vitiated. The Hon'ble Supreme Court held that in such circumstances, the Court will have to appreciate the relevant evidence to determine whether the evidence of a police officer is believable so as to place implicit reliance thereon. In the present case, the raid was conducted and accused was apprehended at about 4 p.m. PW1 ASI Hari Kishan has stated that at about 3.30 p.m, they reached Nangoi, Bus Stand, Najafgarh and there he got down from his official vehicle and State Vs.Pankaj Kumar FIR No.204/11 Page No. 15 of 31 requested five passersby to join the investigation after giving them his introduction and informing them about the secret information which was with him but they all refused to join the raiding party showing their inability and without disclosing their names and addresses. In his cross examination, he has stated that there was no shop or residential house near Radha Swami Satsang Bhawan, Dichau Najafgarh Road. No security guard was found at the gate of Radha Swami Satsang Bhawan. No public person was noticed by him at the spot before coming of accused. He did not give any written notice to the persons who refused to join the investigation. PW1 HC Pawan and PW10 HC Sri Om who are the witnesses of raiding party have also deposed the similar version of PW1 ASI Hari Kishan regarding asking public witnesses. The FIR indicate that it was recorded at about 6.30 p.m. The arrest memo of accused indicate that he was arrested at about 7.30 p.m. In the instant case, there are no cogent and valid reasons to discard/suspect the testimony of the police officials who had no prior acquaintance with the accused and did not nurture any grievance against him. Accused had no familiarity with any of the member of the raiding team. The accused did not give reasonable and plausible explanation about his presence on that State Vs.Pankaj Kumar FIR No.204/11 Page No. 16 of 31 day at the spot. This fact remained unexplained by the accused in his statement recorded u/s 313 Cr.PC as to why he had come to Delhi on the said date from Muzaffarpur. In the absence of prior enmity or animosity, members of raiding team unaware about the accused antecedents, were not expected to falsely rope him in this case. Considering the above, I am of the view that keeping in view the general disinclination on the part of the people at large to join the police investigation, it cannot be said that there was any avoidance or evasion on the part of first IO in joining independent witnesses. No ulterior motive was assigned to the police officials for falsely implicating the accused. I am, therefore of the view that nonjoining of the independent public witnesses in the factual matrix of the case was beyond the control of the police and it is not a circumstance to raise suspicion about the motives of the police officials.
25. Another contention of the Ld. Counsel is that prosecution has failed to prove that the case property was kept in safe custody. I have perused the evidence. The prosecution has examined PW 14 HC Sanjeet who has stated that three sealed Hollandaise sealed with the seal of HK and RSL,one State Vs.Pankaj Kumar FIR No.204/11 Page No. 17 of 31 FSL form were deposited in malkhana by Insp. Rajbir Singh Lamba on 18.12.2011 and he made entry in register no.783 which is Ex.PW14/B. He has also deposed that personal search articles of the accused were also deposited on the same day. Ex.PW14/A clearly indicate that the case property was deposited in the malkhana and it was not taken out from before 21.12.2011 when it was sent to FSL for chemical analysis. Ld. Counsel has stated that column no.1,2&3 of Ex.PW14/B are blank. I have perused the same and it is revealed that entry Ex.PW14/B regarding seizure of bicycle and personal search has been made in continuation to entry Ex.PW14/A i.e. entry no.783 where FIR number, u/s, PS, date of deposit and signature of depositors are available. This contention of Ld. Counsel is therefore without any basis. There is sufficient evidence on record that the case property was deposited in Malkhana and therefore it was in proper and safe custody.
26. Ld. Counsel has further argued that there is difference in the weight of sample sent to FSL. PW1 ASI Hari Kishan has stated that samples of charas were drawn one sample was 52 gms and another was 46 gms. It is in evidence that sample weighing 52 gms was sent to FSL. As per FSL State Vs.Pankaj Kumar FIR No.204/11 Page No. 18 of 31 result Ex.PW8/A, Ex.A was found to be 52.18 gms approx. In Sunil Kumar Yadav @ Sonu Vs. N.C.B (Cri.Appeal NO. 944/2010 decided on 18.03.2014) it has been observed that : '21. Coming to the discrepancy in the weight of the samples which was sent to CRCL for the purpose of analysis, a perusal of the report would show that three samples were sent to the laboratory, out of which, one weighed 40.8 gram, one weighed 43.3 gram and one weighed 42.9 gram. Thus, the excess weight was almost uniform in all the three samples. In Rajesh Jagdamba (supra), the contraband found with the accused was 100 gram in the right foot and 115 gram in the left foot. However, when weighed in the laboratory, the quantity of the substance alleged to have been recovered from the right foot was found to be 98.16 gram, whereas the quantity of the substance alleged to have been recovered from the left foot was found to be 82.54 gram. The Apex Court was of the view that the prosecution had not been able to explain the discrepancy which rendered the case of the prosecution doubtful. The Apex Court in this regard observed that the question was not how much seized, but whether there was an actual seizure and whether what was seized was really sent for commercial analysis. However, discrepancy in weight was not the only ground of acquittal in the aforesaid case and the case of the prosecution suffered from several other infirmities. It was found that the seals as well as the packets were in the custody of the same person, meaning thereby that State Vs.Pankaj Kumar FIR No.204/11 Page No. 19 of 31 there was every possibility of the seized substance being tampered with. The Court felt that this was the only hypothesis on which the discrepancy in the weight could be explained. Another aspect of the case was that PW 2, a panch witness was found to be a stock witness, he having been associated in two other cases as panch witness. The decision in Rajesh Jagdamba (supra) was considered by the Apex Court in its subsequent decision Dehal Singh vs. State of Him achal Pradesh (2010) 9 SCC 85. In the aforesaid case, two samples of 50 gram each were taken and sent to FSL for examination, but in the laboratory, the net weight of the sample was found to be 65.5606 gram. It was contended before the Apex Court that discrepancy in the weight of the sample casts serious doubt to the credibility of the prosecution case and was enough to reject the said case. Reliance by the learned counsel for the accused in that case was placed on the decision of the Apex Court in Noor Aga Vs. State of Punjab (2008) 16 SCC 417 as well as Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773. Both the cases relied upon by the accused were cases of recovery of charas. Noticing that the weighing scale and the weights came from a nearby grocery shop, the Apex Court observed that samples were taken by a common weighing scale and the weights found in a grocery shop, whereas the weight in the laboratory is recorded with precision scale and, therefore, the small difference in the weight loses its significance when no infirmity in the other part of the prosecution story is found. It was noted that in the case of Noor Aga (supra), the sample was taken by custom official at the Airport State Vs.Pankaj Kumar FIR No.204/11 Page No. 20 of 31 from a precision scale and discrepancy in the weight alone was not the reason to reject the case of the prosecution in the said case. The Court, in this regard, also referred to the observations in Noor Aga (supra) to the effect that discrepancy in weight individually may not be fatal. It was also noted that in Rajesh Jagdamba Avasthi (supra), the recovery proceedings were found to be suspicious and there was every possibility of the seized substance being tampered with and it were those infirmities which had led the Court to doubt the truthfulness of the prosecution case.
In Kulwant Singh Vs. Narcotics Control Bureau, it has been observed that :
"21. A plea has been taken by the appellant that weight of sample, as found by forensic laboratory was 4.6 gm and not 5 gm. The discrepancy in the weight of the sample as found in the test laboratory is no ground to doubt the case of the prosecution. Anybody having a little knowledge of science and the scientific instruments knows that every scientific instrument has a least count.The accuracy of a scientific balance is much more than the ordinary balance used by a I.O and there may be a variation of weight plus or minus depending upon the least count of the scientific balance. The atomic balances are more accurate than scientific balance. Such balances are used in more sensitive laboratories and are accurate to .0001 gm and even more accurate. An Investigating Officer, who draws sample for testing, need not have a balance of a high accuracy in order to draw the samples. He can draw sample weighing State Vs.Pankaj Kumar FIR No.204/11 Page No. 21 of 31 approximately 05 gm using ordinary balance. If the same sample is weighed at an accurate scientific balance used in CRCL, the weight of each sample is bound to differ. The difference in weights of samples rather shows the genuineness of the case. If the case had been a made up or a false case, the IO might have used more accurate balance and weighed the samples with accuracy. One may have doubt on the genuineness of the case if the each sample weigh the same on accurate balance used in CRCL, but one cannot doubt if the weight difference is found as in this case. Such difference in weight is natural. No malafide can be drawn by the appellant by this difference of weight. Thus the weight difference in the sample cannot be considered as a ground for acquittal."
27. In Sunday Emegha Vs. State (2012) 194 DLT 3, the case of the prosecution was that two samples of contraband, each weighing five grams were drawn. In the laboratory the weight of one sample was found to be 6.5 grams whereas the weight of the other sample was found to be 5.5 grams. It was contended on behalf the accused that the aforesaid discrepancy in the weight indicated tampering with the case property. The contention, however, was rejected considering that the link witnesses examined by the prosecution as well as FSL report duly proved that the samples which were taken were sent to laboratory and at the time of examination the seals on them State Vs.Pankaj Kumar FIR No.204/11 Page No. 22 of 31 were intact.
28. In the present case, as per FSL result the weight of the sample Ex.A was found to be 52.18 gms. The case of the prosecution is that one gola of charas weighing 52 gms was taken as sample, meaning thereby that short weight in the sample was almost the same. This kind of variation in the weight, in my view, can be safely attributed to the difference in the accuracy of the scale which would form part of the field kit given to an empowered officer and the precision scale which is used in a laboratory. Even if an electronic balance had been provided to PW1, as a part of the field kit, that could not have been so accurate and sensitive as the balance in laboratory. Thus, the submissions of the Ld. Counsel is not well founded.
29. Another contention of Ld. Counsel that log book has not been produced is not fatal to the case of the prosecution since the raiding party members have clearly deposed about arrest of accused and recovery effected from him. The accused has taken the plea for his false implication but he has failed to make any complaint before any appropriate authority regarding his false implication in this case. He has also failed to lead State Vs.Pankaj Kumar FIR No.204/11 Page No. 23 of 31 defence evidence. Considering the above, I am of the view that it was not necessary to produce log book in this case.
30. Ld. Counsel has submitted that FIR number was written on the documents before the same were handed over to 2nd IO. This contention of Ld. Counsel is without any merit as it will not be fatal to the case of the prosecution. The FIR number on seizure memo of charas and seizure memo of cycle seems to have been written by different person than the person who prepared the seizure memos.
31. I have considered the evidence on record. On the basis of evidence, I come to the conclusion that all the witnesses specially PW1 ASI Hari Kishan, PW5 HC Pawan and PW10 HC Sri Om have corroborated the statements of each other regarding recovery of charas from accused Pankaj weighing 1 Kg. 400 grams. PW1 ASI Hari Kishan has recorded DD no.6, Ex.PW3/A regarding the information and the copy of the same was produced to PW2 Insp. Ranjeet Singh who sent the same to ACP, Operations. PW9 HC Ratan Kumar has placed the DD before ACP who made his endorsement in encircled portion 'X'. So, there is sufficient compliance of State Vs.Pankaj Kumar FIR No.204/11 Page No. 24 of 31 sec.42 of NDPS Act. Rukka was prepared and sent to PS through HC Pawan Kumar for registration of FIR. PW11 Insp.Rajbir Singh Lamba was working as SHO and he has stated that HC Pawan Kumar handed over him three pullandas Mark A,B&C sealed with the seal of HK, FSL form and seizure memo and he affixed his seal of RSL on them. He also put FIR number on pullandas. He called MHCM with register no.19 and deposited the same in malkhana. PW13 HC Sanjeet has corroborated his version that Insp.RS Lamba deposited the pullandas in malkhana with FSL form against which he made entry which is Ex.PW14/A. No suggestion has been put to PW11 Insp.RS Lamba that he did not put his seal on the pullandas or that he did not deposit the same in malkhana. So, there is compliance of sec.55 of NDPS Act. PW12 SI AA Khan has stated that he prepared report Ex.PW11/A u/s 57 NDPS Act and sent to ACP through SHO. The prosecution has also examined PW10 HC Nand Kishore from ACP office who deposed that reports u/s 57 NDPS Act was received in the office which was put up before ACP and the entry in this respect in register at sr.no.4561 copy of which is Ex.PW10/B and report sent by SI AA Khan is Ex.PW10/A. PW9 HC Ratan Kumar has also deposed about receiving of report in the office State Vs.Pankaj Kumar FIR No.204/11 Page No. 25 of 31 of ACP which is Ex.PW9/A. I have perused the cross examination of PW1 or PW12 but no question has been put to them that they did not send the report to SHO and further to ACP. The evidence on record clearly indicate that reports u/s 57 NDPS Act were duly sent to ACP office which were received there vide Ex.PW9/A and Ex.PW10/B. In view of the corroborative evidence, there is compliance of sec.57 of NDPS Act. So, there is sufficient compliance of provisions of NDPS Act in this case. The testimonies of witnesses could not be shattered by the Ld.counsel for accused in cross examination. Accused has taken the plea in his statement recorded u/s 313 Cr.PC that he has been falsely implicated in this case. This plea of the accused is not supported by any evidence. Accused has failed to lead any defence evidence in this case. He has even failed to offer any explanation about his presence in Delhi on the alleged day of incident since he is resident of Muzafarpur, Bihar. Accused or his relatives have not lodged any complaint to any authority regarding his false implication. In my view, the accused has taken such a plea only for the sake of plea but he could not prove the same.
32. As far as recovery of 1 kg 400 gram charas is State Vs.Pankaj Kumar FIR No.204/11 Page No. 26 of 31 concerned, it has been stated by all the witnesses of investigation that total 32 golas of charas were recovered from the bag being carried by the accused. It is also the case of the prosecution that out of 32 golas, two golas were randomly taken as sample, one weighing 52 gms. and another 46 gms. Sample mark A was sent to FSL for examination which was found to be 52.18 gms. The evidence on record clearly indicate that the samples were not taken from rest 30 golas and the golas weighing 46 gms was not sent to FSL as only one sample mark A was sent for examination. In case law Javed A Bhat Vs. Union of India, decided on 9th Nov. 2006 (Equivalent citation 2007 Cri LJ 3145), it been observed that :
7. As per the case of the prosecution, the said charas/hashish were found in the form of cigars and flats presumably meaning thereby they were in the form of cigarettes and flat substances. The panchanama nor the evidence shows as to how many such substances in the shape of cigarettes or flat substances were found in the transparent polythene bag which when weighed was found to be 380 gms. As per the prosecution two representative samples of 50 gms. each were taken from the said polythene bag and put into two separate polythene bags and heat sealed and one of such sample was sent for analysis. The evidence of Mahesh Kaissare/PWl who had tested one of the said representative sample shows that on 622003 he found in the polythene bag sent to him a dark brown substance in the form of cylindrical sticks and flat squarish pieces and the total weight of the substance along with the polythene bag was (bund to be 50 gms. The State Vs.Pankaj Kumar FIR No.204/11 Page No. 27 of 31 evidence further shows that Kaissare/PWl took about gms. of the said substance as representative sample and after analysis came to the conclusion that the substance analyzed by him contained charas. There is no dispute that 100 gms. have been declared to be small quantity for which punishment provided is for a term which may extend to six months or with fine which may extend to Rs. 10,000/ or with both.
9. In the case of Mr. Gaunter Edwin Kircher v. State of Goa (supra) the accused was arrested with two pieces of charas weighing 7 gms. and 5 gms. respectively and only one piece was sent for chemical analysis and the said piece which was sent for analysis was found to have been less than 5 gms. Considering the said facts, the Apex Court observed that from the report of the Junior Scientific Officer it could not be presumed or inferred that the substance and the other piece weighing about 7 gms. also contained charas and further observed that it had to be borne in mind that the Act applied to certain narcotic drugs and psychotropic substances and not to all other kind of intoxicating substances and in any event in the absence of positive proof that both the pieces recovered from the accused contained charas only, it would not be safe to hold that 12 gms. of charas were recovered from the accused. The Hon'ble Supreme Court also proceeded to hold that the prosecution had proved positively that charas weighing about 4.57 gms. was recovered from the accused and the failure to send the other piece had given rise to that inference. The Supreme Court also noted that in order to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized and if it is not practicable in a given case to send the entire quantity then sufficient quantity by way of samples from each of the packets recovered should be sent for chemical examination State Vs.Pankaj Kumar FIR No.204/11 Page No. 28 of 31 under the regular panchanama as per the provisions of law. On behalf of the accused, it is contended that if all 90 gms. of ganja could be sent in this case nothing prevented the prosecution from sending 380 gms. of charas as well.
10. There is no dispute raised, on behalf of the respondent, either on facts reproduced hereinabove or the law laid down by the Apex Court in the aforesaid case of Mr. Gaunter Edwin Kircher v. State of Goa (supra).
11. In the case at hand, the prosecution did not send all the pieces either in the form of cigars or Hats for analysis but the prosecution remained satisfied only by sending some of such pieces weighing about 50 gms. and therefore applying the principle laid down by the Apex Court it has to be concluded that what the accused was found with, was only 50 gms. of charas/hashish and not the entire quantity of 380 gms. as contended by the prosecution and that is the inference which has got to be drawn, as drawn by the Apex Court, upon the failure of the prosecution to send all the cigars or flats found with the accused.
12. Once that conclusion is arrived at, it follows therefrom that the accused could not be convicted and sentenced under Section 20(b)(ii)(B) of the Act but had to be convicted and sentenced under Section 20(b)(ii)(A) of the Act............
33. In the present case, the prosecution did not send all the golas for analysis but the prosecution remained satisfied only by taking two golas as sample and sending one such gola to FSL weighing about 52.18 gms. and therefore applying the State Vs.Pankaj Kumar FIR No.204/11 Page No. 29 of 31 principle laid down by the Apex Court it has to be concluded that what the accused was found with, was only 52.18 gms. of charas and not the entire quantity of 1 kg 400 gms. as contended by the prosecution and that is the inference which has got to be drawn, as drawn by the Hon'ble Apex Court, upon the failure of the prosecution to send all the cigars or flats found with the accused. Even in the present case, the prosecution has failed to take samples from all the 32 recovered golas and make homogeneous mixture to establish that they were containing charas. The golas may be of same shape, size and colour but it was incumbent upon prosecution to prove that they all contained charas. But the prosecution has failed to prove this aspect. In view of the observation of the above case law, I am of the view that the prosecution could not prove that 1 kg 400 gms charas was recovered from accused. However, there is sufficient evidence that 52.18 gms charas was recovered which is smaller quantity.
34. Accordingly, the prosecution has proved its case that on 18.12.2011 at about 4.00 p.m. at Radha Swami Satsung Dinod Bhawani Dichaon in front of Najafgarh Road, Baba Hari Das Nagar accused was found in possession of 52.18 grams of State Vs.Pankaj Kumar FIR No.204/11 Page No. 30 of 31 charas. Report of FSL Ex.PW8/A confirms that the recovered substance was found to be charas. Therefore, the prosecution has successfully proved that 52.18 grams charas was recovered from accused which is smaller quantity.
35. In consideration of my above discussions, I am of the view that the prosecution has successful in proving that charas in smaller quantity was recovered from accused Pankaj Kumar. I, therefore, hold accused Pankaj Kumar guilty for the commission of offence punishable u/s 20 (b) (ii) (A) of NDPS Act, and convict him thereunder.
Announced in the open Court on 19.12.2014.
(SURESH CHAND RAJAN) ADDL.SESSIONSJUDGE/ SPECIAL JUDGE(NDPS) (South West District) Dwarka Courts/ NEW DELHI State Vs.Pankaj Kumar FIR No.204/11 Page No. 31 of 31