Delhi District Court
Fir No. 20/08 State vs . Mool Chand Yadav Page No. 1 on 30 November, 2011
1
IN THE COURT OF MS. RAVINDER KAUR
ADDL. SESSIONS JUDGE/ SPECIAL JUDGE (NDPS)
DWARKA COURTS, NEW DELHI.
SC No.: 05/2/09
FIR No.: 20/08
PS : Crime Branch
U/Sec. : 18(c) NDPS Act
State
Vs.
Mool Chand Yadav
S/o Shri Prabhati Lal Yadav,
R/o Village Sherpur Tehsil & PS Behror,
Distt. Alwar, Rajasthan.
Date of Institution : 01.05.2009
Date of Decision : 30.11.2011
JUDGMENT
1 Accused Mool Chand Yadav has faced trial U/s. FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 1 2 18(c) NDPS Act.
2 The prosecution case is that on 10.11.2008 at about 9.00 am a secret information was received by IO SI Kuldeep Singh through a secret informer that two persons namely Mool Chand and Udey Bhan, R/o village around Behror in Rajasthan were indulging in the supply of Opium in Delhi, Haryana and Punjab and both of them had good connections with the local police and always had large quantity available and they most probably would come to Delhi in a day or two to deliver a consignment of opium. IO SI Kuldeep Singh conveyed the said information to Inspt. Akshay Kumar, SHO Crime Branch and Shri Sanjay Tyagi, ACP/ARC and he also produced the secret informer before them. The SHO and ACP interrogated the secret informer and directed him to go the village of both the persons and to develop the information. They also directed SI Kuldeep Singh to develop the information in Rajasthan and SI FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 2 3 Rajpal Singh in Delhi. The said information was lodged by Inspt. Akshay Kumar vide DD No. 3 with PS Crime Branch. On 11.11.2007, SI Rajpal Singh received a secret information that two persons namely Mool Chand and Udey Bhan were indulging in supply of opium and would be coming between 10.00 am to 11.00 am for supply of consignment of opium near bus stop Dhaula Kuan. The secret informer was produced before Inspt. Akshay Kumar in his office, who after interrogating him conveyed the information to the ACP, who ordered to conduct a prompt raid and to take legal action. SI Rajpal had lodged DD No. 4 with PS Crime Branch and produced the same to SHO, Crime Branch and as per the order of SHO/Crime, a raiding party consisting of SI Raj Pal Singh, HC Laxman Parsad, Sunil Kumar, Pramod Kumar and Ct. Surinder was organized. The raiding party alongwith the informer reached near DSOI Club, Dhaula Kuan, New Delhi via LSR FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 3 4 college, Ring Road at 10.00am in official vehicle TATA 407 No. DLILG0798 driven by Ct. Surinder. On the way, SI requested three persons standing near Safdarjung Hospital and after arrival at Dhaula Kuan, he requested STD/PCO attendant at the entrance of DSOI Club and 3 auto rickshaw drivers to join the raiding party after informing them about the information but none of them joined and went away without disclosing their names and addresses. SI briefed the staff and put them on the nakabandi. At about 10.30 AM, one person was seen coming from bus stand side towards Ring Road, who was identified as Mool Chand by the informer and he was overpowered by the members of raiding party. His name and address was revealed as Mool Chand S/o Sh Prabhati Lal R/o Village Sherpur, PS Behror, Distt. Alwar, Rajasthan, age 48 years. SI Rajpal introduced himself and the raiding party and apprised accused Mool Chand of the information received FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 4 5 by the police party and also served a notice u/s 50 NDPS Act upon him, who after going through the notice noted down his reply in his own handwriting on the original of the notice and signed in Hindi. At that time accused was found carrying a green colour plastic container in his right hand containing Cola colour semiliquid stinky substance which was found to be Opium in it. The same was weighed in the same container and was found to be 20kg. Two samples of 50 gms each were drawn in two small polythenes, converted in two cloth parcels and were marked as A & B and the remaining opium in the same container was kept in a plastic gunny bag and converted into a gunny bag parcel, which was marked as C. Form FSL was filled. All the three parcels and FSL form was duly sealed with the seal of RSS and all the three parcels and form were taken into police possession vide seizure memo. A complaint was sent to duty officer PS Crime Branch FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 5 6 through HC Promod Kumar for registration and the case property was sent to the SHO through HC Promod Kumar for compliance of section 55 NDPS Act. Inspt. Akshay Kumar,SHO / Crime had put FIR No. on all the three parcels and after counter sealing the same and form FSL with his seal of AK, he had deposited the case property through HC Chand Ram, MHC(M) PS Crime Branch and had lodged DD No. 9 at 3.10 pm in daily diary of PS Crime Branch, Nehru Place, New Delhi and the Investigation of the case was handed over to SI Kuldeep Singh. At the spot SI explained the circumstances of the case to SI Kuldeep Singh and produced the original copy of notice u/s 50 NDPS Act and that of seizure memo of opium and also produced the accused before SI Kuldeep. SI Kuldeep Singh joined one Shri Subhash Kumar s/o late Shri Babu Lal r/o H. No. 35, J. J. Colony Satya Niketan, Moti Bagh, New Delhi in the investigation. During investigation, SI Kuldeep Singh FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 6 7 prepared the site plan at the instance of the SI. He also recorded the statement u/s 161 Cr PC of HC Laxman Parsad and Shri Subhash. He also interrogated the accused Mool Chand and arrested him and also conducted his personal search and carbon copy of notice u/s 50 NDPS Act, a black colour leather purse containing some documents and cash Rs.150/, a wrist watch and a pink colour bus ticket from Behror to Delhi were recovered and the same were taken into possession vide a memo and he also recorded his disclosure statement. During investigation, the sample was deposited in the FSL Rohini, Delhi for experts opinion. Result from FSL was received on 25.3.2008. After completion of the investigation, charge sheet was filed in the court against the accused under section 18 NDPS Act.
3 On the basis of material on record, charge under section 18 (c) of the NDPS Act was framed against the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 7 8 accused to which he pleaded not guilty and claimed trial. 4 The prosecution in support of its case had examined 12 witnesses in all to prove its case. 5 PW1 Ct. Nitin was posted as Reader to ACP, AntiRobbery Cell (ARC), Crime Branch, Nehru Place, New Delhi, on 12.11.2008 and as per his testimony, on that day in the morning hours he had received three documents in original consisting of DD No.4 dt. 11.11.2008 lodged with ARC, Crime Branch, Nehru Place, Special report u/s 57 NDPS Act regarding seizure of 20 kg of opium and another Special report u/s 57 NDPS regarding arrest of the accused Mool Chand Yadav in this case regarding which he made an entry in the diary register at S.No. 1280. The original register was produced in the Court and he proved the copy of the relevant entry as Ex.PW1/A. 6 PW 1 further testified that all the documents referred above were put up before ACP Sanjay Tyagi who FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 8 9 signed the same in his presence. During the course of his testimony, the original DD No.4 and the original reports u/s 57 NDPS Act were produced and he proved the photocopies of the same as Ex.PW1/B, Ex.PW1/C and Ex.PW1/D respectively and identified the signatures of ACP at pt. A on all the documents.
7 PW2 H.Ct. Sunil Kumar is a formal witness who had taken pulanda Mark A sealed with the seal of RSS and FSL form bearing the seal of AK to FSL, Rohini, for depositing the same to the FSL on 10.12.2008, but as per his testimony the same could not be deposited for want of rubber stamp of SHO on the FSL form, as such, he deposited the same in the malkhana.
8 PW3 H.Ct. Chand Ram was working as MHC(M) with P.S Crime Branch, Nehru Place on 11.11.2008 and deposed about deposit of the case property in the malkhana on being handed over the same along with FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 9 10 the FSL form by Inspector Akshay Kumar, SHO, P.S Crime Branch. He deposed that the case property and the FSL form were sealed with the seal of RSS and AK. He proved the photocopy of the entry made in the register No.19 regarding deposit of the same as Ex.PW3/A. ( Original was seen and returned).
9 PW 3 further stated that the belongings of the accused Mool Chand Yadav were also deposited on the same day in the malkhana by SI Kuldeep Singh vide entry at pt. A to A in the register No.19 and from the original register No.19, he proved the photocopy of the same as Ex.PW3/B. He further deposed that on 10.12.2008 he had sent the pulanda Mark A and Form FSL to FSL, Rohini through H.Ct. Sunil Kumar (PW2) vide R/C No. 30/21. From the original he proved the photocopy of the R/C as Ex.PW3/B. He further deposed that H.Ct. Sunil Kumar returned the said pulanda to him as the documents were FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 10 11 not bearing the rubber stamp of SHO and thus, the pulanda was deposited in the malkhana vide entry to this effect in the register at S.No.32 from pt. B to B Ex.PW3/C. 10 PW3 further testified that on 15.12.08, he had sent one pulanda along with the FSL form to FSL through Ct. Anand Pal vide R/C No. 40/21 regarding which he had made entry at pt. C to C on Ex.PW3/C. He proved the road certificate No. 40/21 as Ex.PW3/D and receipt of the same handed over to him by the Ct. Anand Pal after depositing the same in the FSL, Rohini, as Ex.PW3/E. 11 PW3 further testified that on 27.03.09, H.Ct. Bhupesh had handed over him one sealed parcel sealed with the seal of MS FSL Delhi for depositing the same in malkhana which he deposited in the malkhana vide entry in the register at S.No.32 from pt. D to D and proved the photocopy of the same as Ex.PW3/C. 12 PW4 H.Ct. Laxman Prasad was the member FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 11 12 of the raiding party. He is a witness to the apprehension of the accused at the instance of the secret informer at about 10 a.m near DSOI Club, Dhaula Kuan and recovery of 20 kg of opium (afeem) from his possession. He deposed on the lines of the case of the prosecution. He proved the original notice u/s 50 of the NDPS Act served upon the accused as Ex.PW4/A, the seizure memo of the opium recovered from the possession of the accused as Ex.PW4/B, the arrest memo of the accused as Ex.PW4/C and his personal search memo as Ex.PW4/D. During the course of his testimony, he identified the container as Ex.P1 which was in the possession of the accused at the time of his apprehension and the substance found in container as Ex.P2. He further identified the remnant sample received from the FSL as Ex.P3 and representative sample as Ex.P4.
13 PW5 H.Ct. Pramod was also the member of the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 12 13 raiding party and he deposed on the lines of the prosecution case and identified the accused as well as the case property correctly.
14 PW6 Sh. Subhash Kumar is an independent witness joined in the proceedings. He testified that about 2 years ago, he was going from Delhi Cantt. to Satya Niketan at about 4/4.30 p.m. That he had gone to Delhi Cantt. at the house of his 'Mausi' where he used to stay during those days. He testified that it was in the month of November or December 2008, but he could not tell the date, when he reached near Dhaula Kuan bus stand he saw some crowd. He stopped there and saw that one person was detained there by the police and one truck was also stationed thereby. The police officials asked him about his place of residence and he told them that he was the resident of Satya Niketan and was running a shop. He testified that at that time the police officials were conducting the personal FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 13 14 search of that person. He identified lateron said person as accused present in the Court. He stated that from his personal search, one ticket and some cash was recovered. He testified that his signatures were obtained on 34 papers, but he had not gone through the contents of the same. That one of the documents was bearing some map. That he was neither informed by the police as to why they detained the accused nor he came to know about his name. 15 PW6 was declared hostile by the prosecution and was crossexamined by Ld. Addl. PP for the State. During crossexamination, he stated that he could not recollect if the police informed him that they had apprehended the accused with 20 kg of opium, however he admitted that the truck regarding which he deposed in his examination in chief was TATA 407. That the site plan was prepared by some police official at the instance of another, however he could not tell if the statement of one police official was FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 14 15 recorded between 4 p.m to 4.50 p.m while siting in TATA
407. He also denied for want of knowledge that the accused was arrested at the spot and the documents relating to his arrest were prepared and his signatures were obtained thereupon. During crossexamination by Ld. Addl. PP, he was shown the seizure memo Ex.PW4/C and the personal search memo Ex.PW4/D of the accused and he admitted that both these documents were bearing his signatures at pt. B. Due to lapse of time, he also could not tell if the copy of any notice u/s 50 NDPS Act, a black colour leather purse containing some documents besides cash and one wrist watch HMT with steel chain, were also recovered from the personal search of the accused. During crossexamination by Ld. Addl. PP, he was shown the pink colour ticket No. 9176 and he admitted it to be correct that this was recovered from the possession of the accused and was Mark A. Ld. Addl. PP had further shown him the disclosure FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 15 16 statement Ex.PW6/A of the accused and he admitted his signature there on, but he could not tell if it was reduced in writing in his presence. He also could not admit or deny if the date of incident was 11.11.2008.
16 During examination by Ld. Addl. PP, PW 6 voluntarily stated that he had come to the Court on that day on receipt of a telephonic call from Inspector Kuldeep who had asked him if he could identify the accused and that he told SI Kuldeep that the matter was two years old so he could vaguely remember the accused and at the instance of Inspector Kuldeep, he came to the Court and he was told by Inspector Kuldeep Singh outside the Court that the accused was somewhere outside the Court and asked him to identify him and then he took a round near the accused who was sitting outside. In the meantime, Advocate Sh. Vikas Bharti came there and asked his name, who then gave a telephone call to someone who FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 16 17 immediately came outside the Court and Advocate Sh. Vikas Bharti abused him (PW 6) and he told him not to abuse. Advocate Sh. Vikas Bharti told the person who had arrived there to push him down on the ground and at this, he started running and Advocate Sh.Vikas Bharti raised alarm that he was running after snatching and when he reached near the gate, he fell down and the lawyers caught hold of him and gave him beatings and took him to the Bar office where he was given beatings by 23 lawyers, but he was protected by Advocate Sh. Karan Tyagi to whom he narrated the whole incident and he produced him in the Court.
17 PW7 Ct. Anand Pal had taken taken pulanda Mark A and FSL Form from the malkhana and deposited the same in the FSL, Rohini, on 15.12.2008. 18 PW8 Inspector Askhay Kumar was the then SHO, P.S Crime Branch, Nehru Place, New Delhi. He FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 17 18 deposed that on 10.11.2008 while he was present in his office, SI Kuldeep came and informed him that he had received a secret information that two persons namely Mool Chand and Udey Bhan, residents of Behror, Rajasthan were indulging in supply of drugs, which they supply from Rajasthan to Delhi, Haryana and Punjab. He was further informed that Mool Chand had already remained in custody in supply of drugs case and Udey Bhan was previously the Sarpanch of the village. Further that they had collusion with the local administration and were in possession of huge quantity of 'opium' and that they would come to Delhi within 12 days to supply the same and that the secret informer would further inform them about their visit to Delhi. He further stated that when this information was brought to his notice, at that time ACP Sanjay Tyagi was also with him. The secret informer was also produced before him and ACP Sanjay Tyagi by SI FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 18 19 Kuldeep and they both verified the aforesaid information from the secret informer and satisfied themselves. ACP Sanjay Tyagi directed the secret informer to further verify and develop this information from Rajasthan and he was suitably briefed.
19 PW8 further testified that ACP had directed SI Kuldeep to go to Rajasthan to verify and develop the aforesaid information and SI Rajpal was directed to verify the said information in Delhi itself. He stated that the secret informer was sent to Rajasthan on 10.11.08 itself in the evening. That DD No.3 Ex.PW8/A was recorded by him in this regard.
20 PW8 further testified that on 11.11.2008 at about 6 a.m, SI Kuldep along with H.Ct. Rajbeer, H.Ct. Suresh and Ct. Anand Pal went to Rajasthan in a private taxi to further develop this information and also to conduct investigation in case FIR No. 463/07 i.e a case of robbery FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 19 20 and murder registered with P.S Keshav Puram in which case the accused Kishan Pal @ Fauji was wanted and SI Kuldeep was the IO of the case.
21 PW 8 further stated that on 11.11.2008 at about 8 a.m, one another secret informer who was known to the previous secret informer came to the P.S and met Inspector Rajpal Singh and informed him that the persons namely Mool Chand and Udey Bhan would come to bus stand, Dhaula Kuan between 10 a.m to 11 a.m to deliver the consignment of opium. The secret informer was produced before him by SI Rajpal Singh and was interrogated by PW8 Inspector Akshay Kumar and he telephonically informed ACP Sanjay Tyagi about the secret information and ACP directed to conduct the raid as per law. 22 He further testified that SI Rajpal Singh had lodged the DD No.4 dt. 11.11.2008 Ex.PW9/B to this effect and produced the copy of the same before him in FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 20 21 compliance of section 42 of the NDPS Act, which he forwarded to ACP, ARC and proved the carbon copy of the same as Ex.PW8/B. He stated that thereafter a raiding party comprising of SI Rajpal Singh and other police officials was organized by SI Rajpal Singh on his instructions and they all left the office along with the secret informer in an official TATA 407 bearing registration No. DL 1 LG 0798.
23 PW8 further testified that on the same day at about 2.15 p.m, SI Kuldeep returned to the office of P.S Crime Branch along with his staff from Rajasthan and informed him and ACP Sanjay Tyagi that while he was returning from Rajasthan, his vehicle was got stopped by Haryana police at Khirki Daula Toll and search of their vehicle was conducted and since nothing incriminating was found from his vehicle/recovered from him, he was allowed to proceed further. He stated that DD No.6 Ex.PW11/B FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 21 22 was lodged by SI Kuldeep, P.S Crime Branch mentioning these facts.
24 PW8 further deposed that at about 2.40 p.m, H.Ct. Pramod came to P.S Crime Branch along with rukka which he handed over to the Duty Officer Jaipal Singh for registration of the FIR. At about 2.42 p.m, H.Ct. Pramod came to his office and produced two pulandas of sample mark A and B and one pulanda of katta Mark C along with the carbon copy of the seizure memo of the opium and FSL form and all these pulandas and FSL form were bearing the seals of RSS which he countersigned with the seal of AK. That after taking the FIR No. 20/08 from the Duty Officer, he put the same on all the pulandas and FSL form. Thereafter he called the MHC(M) PW3 H.Ct. Chand Ram along with the register No.19 to his office who mad entry regarding the deposit of the case property under his supervision. He testified that the case property was FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 22 23 deposited in intact condition vide relevant entries in the register No. 19 and he proved his signature at pt. X on entry Ex.PW3/C made in the register No.19. He testified that DD No.9 Ex.PW8/B was recorded regarding deposit of the case property, FSL form and carbon copy of the seizure memo.
25 PW8 further testified that further investigation of the case was handed over to SI Kuldeep Singh. He stated that at about 07:15pm SI Kuldeep Singh returned to the P.S and produced the accused before him and he interrogated the accused to satisfy himself. He further deposed about sending of the case property along with FSL form to FSL, Rohini on 10.12.2008 under his directions by H.Ct. Sunil Kumar, but for want of rubber seal on the FSL form, the same could not be deposited and was deposited back in the malkhana and again on 15.12.2008, the sample Mark A along with FSL form were sent to FSL, Rohini FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 23 24 through Ct. Anand Pal. He also deposed that on 11.11.2008, the special reports u/s 57 of the NDPS Act already Ex.PW1/C and Ex.PW1/D were sent to the ACP, ARC.
26 PW9 SI Rajpal Singh is the initial IO of the case who testified that on 11.11.2008, he was posted as SI in AntiRobbery Cell at Crime Branch, Nehru Place. On that day at about 8a.m, he was present in his office when the secret informer came to him and informed him that two persons namely Mool Chand and Udey Bhan, Both R/o Rajasthan would come to Delhi on that day in between 10 a.m to 11 a.m to supply the consignment of opium at Dhaula Kuan bus stand, Delhi, and they indulge in supply of the same from Rajasthan to Delhi, Punjab and Haryana and if raided, they could be apprehended. After satisfying himself with the aforesaid secret information he brought it into the notice of Inspector Akshay Kumar, SHO, Crime FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 24 25 Branch and also produced the secret informer before him. SHO had also interrogated the secret informer and satisfied himself and thereafter had telephonically informed ACP ARC/Crime. That ACP directed to conduct the raid immediately.
27 PW 9 further stated that he had recorded this secret information at about 8.30 a.m vide DD No.4 and produced the true copy of the said information recorded by him u/s 42 of NDPS Act to the SHO Inspector Akshay Kumar. The carbon copy of the DD No.4 has been proved on record as Ex. PW 1/B. He further deposed about forming raiding party and reaching the spot at Dhaula Kuan bus stand at 10 a.m via LSR college ring road and Safdarjung hospital and that departure was made vide DD No. 5 proved on record as Ex. PW 9/C. That near Safdarjung hospital he had requested 34 public persons for joining of the raiding party who were informed about the facts of the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 25 26 secret information. However, none agreed and left showing their unwillingness. Near the STD booth in front of DSOI, Dhaula Kuan, he had requested occupant of the STD booth and 34 TSR driver for joining the raiding party who were informed about the facts of the secret information. However, they refused to join the raiding party showing their inability and they had even not disclosed their names and addresses. Thereafter without wasting any further time, he briefed the members of the raiding party and took their positions. That at about 10.30 a.m, one person who was wearing kurtapyjama of Khadi and was carrying one plastic container in his right hand, was seen coming towards Ring Road i.e. in the direction in which he along with the members of the other raiding party and secret informer were present. At the instance of secret informer, he was apprehended by them when he reached near transformer. He was interrogated during which he FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 26 27 disclosed his name as Mool Chand Yadav i.e. accused present in Court on that day. PW 9 gave the introduction of the police party to the accused and informed him about the secret information and that he might be in possession of opium. Accused was further informed that his search is to be conducted and it is his legal right that if he desires he could be produced before a Magistrate or a Gazetted Officer and they can also be called at the said place and that he can also conduct the search of the police party and the police vehicle before his search. A notice u/s 50 of NDPS Act already Ex.PW4/A was served upon the accused bearing his signature at pt. X. The carbon copy of the notice u/s 50 of NDPS Act was given to the accused. Accused refused to avail legal right U/s. 50 NDPS Act by making endorsement from pt. X to X on Ex.PW4/A and signature at pt. X1 on it. The contents of the notice u/s 50 of NDPS Act Ex.PW4/A were also properly read over and explained to the accused FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 27 28 which he understood. Thereafter PW9 conducted the casual search of the accused. He took the container from accused and checked the same which was found containing semi solid substance of Coca Cola colour which was smelling foul. On smelling and checking the substance of the container, the same was found to be opium which was weighed and was found to be 20 kg. From the recovered substance, two samples of 50 gms each were drawn as sample which were kept in two separate polythenes and these were converted into two separate cloth pulandas and were marked as A and B respectively. The remaining opium was left in the same container and was kept in a plastic katta which was marked as Mark C. Form FSL was filled in. PW 9 deposed that he sealed all the pulandas and form FSL with the seal of RSS and case property and FSL form were seized vide seizure memo Ex. PW 4/B. Seal after use was handed over to H.Ct. Laxman Prasad. FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 28 29 28 PW 9 further deposed that thereafter he prepared rukka Ex.PW9/A and handed over the same to H.Ct. Pramod for registration of the FIR. He had also handed over all three sealed pulandas, FSL form and the carbon copy of the seizure memo to H.Ct. Pramod Kumar and directed him to hand over the rukka to the Duty Officer and the other items to the SHO for compliance u/s 55 of the NDPS Act. He had also requested in the rukka that the further investigation of this case be handed over to SI Kuldeep as per the directions of the senior officers. 29 PW 9 further deposed that at about 3.30 p.m, SI Kuldeep, Ct. Surinder and Ct. Sandeep came to the spot and he handed over the original seizure memo, original notice u/s 50 NDPS Act and accused to SI Kuldeep. That when SI Kuldeep Singh came to the spot he had already verified the FIR number from the concerned P.S and had written the FIR number on the relevant documents at the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 29 30 spot i.e. seizure memo and notice u/s 50 NDPS Act. SI Kuldeep had asked 34 public persons to join the investigation out of which one person namely Subhash agreed to join. At his ( ie PW 9) pointing out, the site plan was prepared by SI Kuldeep Singh. The accused was formally arrested vide arrest memo already Ex.PW4/C and his personal search was conducted vide memo Ex.PW4/D. The disclosure statement of the accused Ex.PW6/A was also recorded at the spot. From the jamatalashi of the accused, carbon copy of the notice u/s 50 NDPS Act was recovered besides a purse and some documents including a bus ticket Mark A. The statement of public witness Subhash was also recorded by SI at about 5.30 p.m. At 6 p.m they all had left the spot in the official vehicle and reached the office of Crime Branch at Nehru Place at around 7 p.m. The accused was then produced before the SHO. His statement was recorded by SI at around 8.30/9 FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 30 31 p.m in the office of Crime branch. He had also complied with the provisions of section 57 of NDPS Act vide report Ex.PW1/C in writing and forwarded it to the SHO. He proved the photocopy of the DD No.4 was Ex.PW9/B and the photocopy of the DD No.5 as Ex.PW9/C vide which he along with the staff and the secret informer had left the spot in an official vehicle. During the course of his testimony, PW 9 correctly identified case property i e container Ex. P1, substance Ex. P2, remnant sample Ex.P3 and representative sample Ex. P4. 30 PW10 H.Ct. Jaipal Singh is the formal witness who being the Duty Officer recorded the FIR No.20/08 u/s 18 of NDPS Act on receipt of a rukka sent by SI Rajpal Singh through H.Ct. Pramod on 11.11.2008 at about 2.40 p.m. He proved the computerized copy of the same as Ex.PW10/A bearing his signature at pt. A and made an endorsement on the rukka as Ex.PW10/B bearing his FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 31 32 signature at pt. A. He had recorded the FIR vide DD No.8 and proved the photocopy of the same as Ex.PW10/C. He deposed that further investigation of the case was handed over to SI Kuldeep Singh on the directions of ACP, ARC. That SI Kuldeep along with Ct. Sandeep had left for the spot in a government vehicle bearing registration No. DL 1 LG 0798 driven by Ct. Surinder and he had mentioned these facts in DD No.8. That on the same day he recorded the DD No. 10 at about 3.30 p.m after recording of the FIR. He proved the photocopy of the said DD as Ex.PW10/D. 31 PW11 is Inspector Kuldeep Singh who had further investigated the case. He deposed that on 10.11.2008 he was posted as SI with AntiRobbery Cell, Crime Branch, Nehru Place. On that day at about 9.00 a.m, a secret informer came to his office and informed that two persons namely Mool Chand and Udey Bhan both R/o village around Behror in Rajasthan who are indulging in FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 32 33 the supply of opium in Haryana, Delhi and Punjab would come to Delhi in a day or two to deliver opium to some one. The information further entailed that Mool Chand had earlier also been arrested in Delhi in the case of opium and Udey Bhan was reportedly ExSarpanch of his village and both of them have good liaison with the local administration and further that the opium is always available with them for supply. The secret informer further told him that in case either of them would come to Delhi he will inform him. This information was brought to the notice of Inspector Akshay Kumar SHO, P.S Crime Branch and ACP Sh. Sanjay Tyagi of Crime branch by him. The secret informer was also produced by him before both above referred officers who had satisfied themselves. The secret informer was directed by ACP Sh. Sanjay Tyagi to go to Rajasthan to develop the above secret information. That SI Rajpal was directed by the ACP to develop the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 33 34 information in Delhi whereas he (ie PW 11) was directed to develop the information in Rajasthan. DD No.3 dated 10.11.2008 at 9.30 a.m was recorded by Inspt. Akshay Kumar to this effect. He proved the said DD as Ex. PW 8/A. 32 PW 11 deposed that on 11.11.2008 he along with H.Ct. Suresh, H.Ct. Rajbir Singh, Ct. Anand Pal and secret informer in a private taxi No. DL 4C B 5121 which was driven by the driver went to Kotputli and Behror, Rajasthan to verify and develop the secret information referred above with the permission of the senior officers and also to conduct the investigation in case FIR No. 463/07, P.S Keshav Puram. DD No.9, photocopy of which is Ex.PW11/A was recorded by him. On the same day he came back to Delhi and recorded DD No.6 at 2.15 p.m, photocopy of which is Ex.PW11/B, wherein he had mentioned all the details of his visit to Rajasthan. That on the same day at FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 34 35 about 2.40p.m, further investigation of the case FIR No. 20/08, P.S Crime Branch was entrusted to him as per the directions of the Senior Officer. Vide DD No 8 Ex. PW 10/C he along with Ct. Sandeep left the PS for the spot i.e. near Dhaula Kuan in a government vehicle No. DL 1LG 0798 which was driven by Ct. Surender, after knowing the particulars of the case from the Duty Officer H.Ct. Jai Pal. He reached at the spot at about 3.30 p.m. where I found SI Rajpal Singh present along with the other staff and accused Mool chand. SI Rajpal had produced before him the accused, the original copy of the notice U/s 50 of NDPS Act Ex. PW4/A and original seizure memo of opium Ex.PW4/B and he mentioned the details the case FIR No. 20/08 on both the documents from point A1 to A1, since he had already taken the FIR No. from the Duty Officer before leaving for the spot. PW 11 further stated that he requested three public persons to join the investigation, two FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 35 36 out of them refused to join the investigation and went away without disclosing their names and addresses whereas one Mr. Subhash agreed to join investigation. That he had prepared site plan of the spot Ex. PW11/C at the instance of SI Raj Pal. Thereafter he had recorded statement H.Ct. Laxman from 4.00 p.m to 4.50 p.m. After brief interrogation, he arrested the accused Mool Chand at 4.50 p.m vide memo already Ex.PW4/C and conducted his personal search vide memo already PW4/D both bearing his signatures at point X. During the personal search of the accused, carbon copy of the notice U/s 50 NDPS Act which is Ex.PW11/C1, cash of Rs.150/ lying in black colour leather purse with some documents, one wrist watch, one pink colour bus ticket for two persons ie Ex. PW 11/D. That he had recorded disclosure statement of the accused which is already Ex. PW6/A. The accused was produced before SHO who had interrogated accused to satisfy himself FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 36 37 about his arrest relating to this case. He deposited the belongings of the accused in the Malkhana and an entry to this effect was made in register No.19 at point A to A, photocopy of which is already Ex.PW3/C bearing his signatures at point A1. He had recorded the DD No.11 Ex. PW 11/B regarding his arrival in the P.S Crime Branch. He had collected the original rukka already Ex.PW9/A and copy of FIR No.20/08 already Ex.PW10/A from the Duty Officer HC Jai Pal. Thereafter he had prepared a special report u/s 57 of the NDPS Act already Ex.PW1/D and forwarded the same to the SHO.
33 PW 11 deposed that he had informed Sh. Vikram son of the accused Mool Chand about his arrest telephonically on 11.11.2008 and later on he had personally intimated Sh. Vikram and Sh. Heera Lal on 12.11.2008 in Dwarka Courts. He further deposed about sending sample parcel to FSL Rohini. He proved the FSL FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 37 38 report as Ex. PW11/F. 34 PW12 Dr. Madhulika Sharma had examined the sample mark A and opined that the contents of the same were confirmed to be opium and percentage of morphine was found to be 0.8% . She proved her report as Ex.PW11/F. 35 After completion of prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C whereby he denied the entire incriminating evidence appearing on record against him as incorrect. In answer to question put to him regarding his acquaintance with Udey Bhan, he stated that he knows him since he is the resident of the same locality where he was residing at the time of incident, but denied any collusion with him. Answer given by accused to question No.17 is relevant. Both question No. 17 and its answer are reproduced as below: FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 38 39 Question No.17: It is further in evidence against you that at about 10.30 a.m, you were seen coming towards ring road while carrying one plastic container in your right hand and you proceeded in the direction in which SI Rajpal along with other members of the raiding party and secret informer was present. What have you to say?
Answer: It is incorrect. I never came to Delhi on the aforesaid date, time and place. On that day, at about 10 a.m, I was present in my house in village Sherpur, Rajasthan. At about 10.05 a.m, I left my house along with one Mukesh who was a mediator in the sale/purchase of my land situated at NH8, near village Sherpur. When I reached near my land, I was told by Mukesh to wait for the proposed buyer, however in the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 39 40 meantime, one Swift car No. DL 5121 came.
Three persons from the said car came out and asked me about the rate of my land. The deal could not be materialized since those persons did not agree to pay me the price which I was demanding for my land. At this, I was pushed by 3 persons who had arrived there in the car and Mukesh, the mediator, inside the car and while they were pushing me, I spotted Sardara Ram and Dharam Chand of my village and asked them to save me. When Sardara Ram and Dharam Chand tried to save me, they were shown pistol by one of those 3 persons due to which they got scared. My son Vikram was at some distance from me at that time, and when he saw the aforesaid incident, he rushed to save me, however before he could reach to save me, the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 40 41 said persons drove their vehicle and fled away. At about 11.02 a.m, the aforesaid Swift car had reached at Shahjanpur Toll plaza where they had paid the toll tax for the aforesaid vehicle and obtained a receipt at 11.02 a.m. At about 12.30 p.m, the aforesaid Swift car reached at Khirki Daula where there were barricades of police. There the Swift car was checked by some police officials. There one of those 3 persons informed the police officials who had met us at Khirki Daula, that he was SI Kuldeep. From there, I was brought to the P.S Crime Branch Nehru Place where I was locked up".
Regarding his refusal to avail his legal right under Section 50 NDPS Act, he stated that he was forced and compelled to write his refusal on the notice under Section 50 NDPS Act by the police officials in the office of P.S Crime Branch, FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 41 42 Nehru Place, New Delhi.
36 In answer to the question that from his personal search conducted vide memo Ex.PW4/D, the carbon copy of the notice u/s 50 NDPS Act Ex.PW11/C1 was recovered besides his other belongings and one pink colour bus ticket Ex.PW11/D, he denied that the carbon copy of the notice u/s 50 of the NDPS Act was recovered during his personal search. He stated nothing else except Rs.50/ and one wrist watch which he was wearing at that time, were recovered. 37 Regarding information of his arrest given to his son Vikram telephonically on 11.11.2008 by SI Kuldeep and again on 12.11.08, SI Kuldeep had personally informed his son namely Vikram and Sh. Hira Lal at Dwarka Courts, he admitted that his son Vikram and Sh. Hira Lal were informed about his arrest, however they were informed from the office of P.S Crime Branch after he was falsely implicated in this case. He admitted that Sh. Hira Lal and FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 42 43 his son Vikram, both were personally informed about his arrest on 12.11.08 in the Court when he was produced in the Court.
38 The accused has examined 8 witnesses in his defence.
39 DW1 Sardara Ram and DW3 Dharam Chand are the witnesses to the alleged kidnapping of the accused from his village on 11.11.2008 at about 10/10.30 a.m. 40 DW2 Vikram is the son of the accused who was allegedly informed by DW1 and DW3 that his father was taken away in a swift car bearing registration No. DL 4 CB 5121 and later on he was informed by the police officials that his father has been taken away in a car No. DL 4 CB 5121 by the staff of ARC, Nehru Place, for interrogation and SI Kuldeep Singh had taken him away. That he was also informed about the mobile number of SI Kuldeep as FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 43 44 09910633451. That at about 5 p.m, he made a call on the said mobile phone number and was told by SI Kuldeep that if he wanted to meet him, he should come to Nehru Place. 41 DW 2 further testified that he did not go to P.S Nehru Place to meet SI Kuldeep Singh, but instead he filed a complaint u/s 156 (3) Cr.P.C in the Court mentioning the detailed facts at Behror and FIR No. 114/09 was registered on the said complaint.
42 DW4 Naresh Chand is the LDC from Delhi Transport Authority, Janakpuri, New Delhi, who produced the record pertaining to the vehicle bearing registration No. DL 4 C B 5121 and testified that the said vehicle was Martui Gypsy and is registered in the name of Commandant Group Centre, CRPF, Jharoda Kalan, New Delhi. He proved the authority letter for his appearance before the Court as Ex.DW4/A and the relevant record of the vehicle referred above as Ex.PW4/B. FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 44 45 43 DW 5 HC Onkar Singh proved the photocopy of the NCR as Ex DW 5/A from the original lodged by HC Jai Narang the custodian of the log book on 1.6.2010 regarding the loss of log book of vehicle No. DL l L G 0798 dated 11.11.2008.As per his testimony new log book and inspection book was issued on 3.6.2010 to HC Jai Narain as per record the photocopy of which is Ex PW 5/B. 44 DW6 H.Ct. Ishwar Singh had produced the original record of P.S Behror, Alwar, Rajasthan pertaining to DD No.480 dt.11.11.2008 and from the original proved the attested photocopy of the same as Ex.DW6/A. He testified that the said DD was registered on the basis of information received from one person at village Sherpur informing that Mool Chand S/o Prabhati Lal, Ahir (caste), had been taken towards Delhi by some person in a silver Swift vehicle whose number could only be seen as "DL 5121" and it was further informed that 'nakabandi' had FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 45 46 been made at P.S Shahjahanpur, Bawal, Rewari, Gurgaon, Nangal Chowdhar, Kotputli, and SHO Inspector Chand Mal along with his staff had gone in search of the aforesaid vehicle and had also gone to village Sherpur. He further produced the original record of DD No. 486 recorded at 2.10 p.m on 11.11.2008 regarding the arrival of the SHO Inspector Chand Mal along with his staff to the P.S mentioning therein that he had returned to the P.S after the investigation of DD No.480 and that on receipt of the aforesaid DD, he went to village Sherpur where Deputy S.P had also reached at the house of Mool Chand at village Sherpur and met his son, family members and covillagers. It was also mentioned in the said DD that it came into the knowledge of Inspector Chand Mal that one person namely Mukesh who was known to Mool Chand had visited his house whose mobile No. was 09210853451 and stayed with him. As per DD No. 486, SHO had spoken to SHO Khirki FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 46 47 Daula on his mobile phone and then he came to know that Mool Chand was taken by the officials of Delhi Police. The family members of Mool Chand were informed about the aforesaid facts and they were given the mobile phone numbers and landline telephone numbers of the officials of Delhi Police and their offices. This information was recorded vide DD No. 486 and he proved the attested photocopy of the same as Ex.PW6/B. 45 DW7 Ct. Surender was the driver of the official vehicle bearing registration No. DL 1 LG 0798 on 11.11.08 and at about 9am he took SI Rajpal Singh, HC Sunil, HC Laxman, HC Pramod alongwith the secret informer in the the aforesaid vehicle to Dhaula Kuan. He deposed about signing of the relevant entry Ex. PW 11/D1 in the log book made by SI Kuldeep about distance between their office and Dhaula Kuan to and fro twice being 36 Kms. He further deposed that before he had left the office, he had FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 47 48 noted down the reading of the meter as 17476 kms and when they returned to their office, it was noticed as 17512 kms i e from their office and Dhaula Kuan to and from twice. That as per the aforesaid reading, one side distance from their office to Dhaula Kuan is 9kms.
46 DW 8 Inspt Chand Mal was working as SHO PS Behror Distt Alwar Rajasthan on 11.1.12008. He testified that on that day at about 11 am he had received information on his official telephone that one person namely Mool Chand was kidnapped by some persons and was removed in Swift car bearing registration No. DL 5121 from village Sher Pur and was taken towards Delhi. DW 8 could not disclose from whom he had received the said call. The said information was reduced in writing vide DD No 480 Ex DW 6/A. He testified that on receipt of the information he alongwith his staff went to village Sher Pur. Wireless message was got flashed to intercept FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 48 49 the Swift car, referred above, when he left the PS Behror. Deputy SP Behror was also informed. He further testified that on reaching the house of Mool Chand where the Dy SP Behror also reached, he made inquiries from the son and wife of Mool Chand and other villagers who disclosed that one Mukesh and acquiantance had visited him on 10.11.2008 and stayed at his house over night. Next morning ie 11.1.2008 after taking tea and meal Mukesh left alongwith Mool Chand towards NHA from where he was removed by 2 /3 persons in Swift car. Further that Dy SP Behror spoke to some senior police officer at Gurgaon on telephone and requested him for nakabandi for interception of Swift car. After sometime SP Behror received a telephone call from Gurgaon that the vehicle of the aforesaid description was intercepted at the Toll at Khirki Daula by SHO PS Khirki Daula and he also gave the telephone number of the SHO to contact him. DW 8 FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 49 50 could not tell the said telephone number but he testified that he spoke to the SHO Khirki Daula on the said number who informed that Swift car bearing registration No DL 4CB 5121 was intercepted and in the said car SI Kuldeep Singh from the crime branch alongwith the staff were present and Mool Chand was also in the said car. He further testified that SHO Khirki Daula made him to speak to SI Kuldeep Singh of crime branch who informed him that he was SI of crime branch and Mool Chand was involved in the supply of Opium and earlier also the cases were registered against him and now he was taking him alongwith him for enquiry purpose.
47 DW 8 further testified that SI Kuldeep Singh also gave him his own mobile number as well as his official number to contact him in future and he passed on the said information to the family members of Mool Chand and to the members of his village. He testified that he returned to FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 50 51 PS Behror and recorded all these facts vide DD No 486 dated: 11.11.2008 already Ex. DW 6/B at about 2 pm and that the relevant telephone numbers were also mentioned in the said DD.
48 DW 8 was cross examined by Ld. Addl. PP for State. During cross examination he could not tell the telephone number from which he had received the information regarding kidnapping of Mool Chand. He stated that he did not verify if any person namely Mukesh had visited the house of Mool Chand and stayed there over night or he had left alongwith Mool Chand on 11.11.2008. He also could not tell which police officer of Gurgaon, Dy SP Behror spoke on telephone. He also admitted that he had not verified any of the information received from SHO Khirki Daula which he reduced in writing vide DD No. 486 dated: 11.11.2008 Ex. PW 6/B and had no personal knowledge of the contents of the same.
FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 51 52 49 I have heard arguments addressed by Sh Vikas Bharti counsel for the accused and Ms S. K Baweja, Addl. PP for State. Written submissions have also been filed on record by the defence which I have gone through carefully. Record has also been perused carefully. 50 It is submitted by the defence counsel that the accused has been falsely implicated in the present case after being lifted by PW 1l Inspt Kuldeep Singh from his village Sherpur Distt. Behror regarding which DD No 480 Ex. DW 6/A was lodged with PS Behror on the information given by DW 2 Vikram, the son of the accused and the accused was brought to Delhi and was falsely implicated in the present case. It is submitted that the witnesses examined in defence have proved this fact that the accused had been lifted from his village and brought to Delhi in Swift car bearing registration No. DL 5121. It is submitted that DW 8 has specifically testified that during FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 52 53 enquiry of DD No 480 Ex. DW 6/A the wireless message was flashed to intercept the Swift car and that when he was present at the house of accused, DSP Behror who was also present there had spoken to some senior official of Gurgaon and had requested him to make nakabandi for interception of the Swift car. After sometime DSP Behror had received a telephone call from Gurgaon that the vehicle of the said description was intercepted at the Toll at Khirki Daula by SHO Khirki Daula and the caller also gave the number of the SHO PS Khirki Daula to contact him. That DW 8 then contacted on telephone of SHO Khirki Daula who informed him that Swift car bearing registration No. DL 4CB 5121 was intercepted, wherein SI Kuldeep Singh from crime branch alongwith his staff was present and accused Mool Chand also present in the said car. It is further submitted that as per the testimony of DW 8 he personally spoke to the SHO PS Khirki Daula who FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 53 54 informed him that in the Swift car the accused Mool Chand was present alongwith SI Kuldeep of Crime Branch Delhi and his staff and that he spoke to SI Kuldeep Singh who told him that Mool Chand was being taken to Delhi for enquiry as he was involved in the supply of opium and earlier also cases were registered against him. It is submitted that the entire investigation carried out in this case was concocted and accused was falsely implicated. 51 The defence counsel has further submitted that there are discrepancies in the testimony of the prosecution witnesses and that no public witness was joined at the time of apprehension and recovery of alleged opium from the possession of accused. It is submitted that the sample polythene Mark B when produced in the court was found tied in the form of a knot whereas as per PW 4 HC Laxman Prasad, a witness to the sealing of the samples testified that the mouth of the sample parcel marks A and FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 54 55 Mark B were tied with the help of rubber band. 52 Further that PW 4 could not tell the colour of the handle of the container or what was written on the container. Further that PW4 testified that PW 9 SI Rajpal had written the particulars on both the sample pulandas in his presence, whereas till the arrival of SI Kuldeep nobody was aware of the number of the FIR and as such these particulars could not be written by SI Rajpal on the sample pulandas. It is submitted that even PW 9 the initial IO could not tell if the polythenes in which the samples were drawn were having handle, whereas he himself had drawn the samples from the recovered substance. That he could not tell on which vehicle PW 6 Subhash had reached the spot.
53 It is further submitted that even PW 5 could not tell what was written on the lid of the container recovered from the accused containing opium. It is FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 55 56 submitted that PW 5 testified that the container containing the remaining substance was kept in a plastic gunny bag, whereas PW 4 testified that it was sealed with the help of cloth and as such both the witnesses contradicted each other.
54 It is submitted that PW 4 testified that the particulars were written on the pulandas by SI Rajpal, whereas PW 5 testified that these were written by SHO Akshay Kumar.
55 Regarding the receipt of secret information, it is submitted that as per the testimony of PW 5 the secret information was received by SI Rajpal in his presence, whereas SI Rajpal did not testify so.
56 Regarding non joining of the public witnesses, it is submitted that though the secret information was that the accused would be delivering opium near Dhaula Kuan, but SI Rajpal had made an attempt to join the public FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 56 57 witnesses from near SJ Hospital which was a baseless strategy and that no notice U/s 160 Cr PC was served upon any public person who had refused to join the raiding party. It is submitted that no public person was joined in the raiding party from the STD Booth near DSOI club or from DSOI club itself or the petrol pump near the spot of apprehension of accused.
57 Regarding PW 6 Subhash Kumar, an independent public witness, it is submitted that he was declared hostile by the prosecution as he stated that nothing had taken place in his presence and he did not come to know the name of the person detained by the police and his statement was not recorded by the police but only signatures were obtained on 2 /3 documents. Even in his cross examination by Addl. PP for State he could not recollect if police had informed him that they had apprehended Mool Chand with 20 kgs of opium or there FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 57 58 were six police officials present at the spot and was confronted with his statement Ex PW 6/B. He also could not tell the number of Tata 407 present at the spot. It is further submitted that this witness admitted that he had come to the court on that day on being called by Inspt Kuldeep for identification of the accused. 58 Regarding PW 7 Ct Anand, it is submitted that this witness has testified that on 11.11.2008 he had accompanied SI Kuldeep, HC Rajbir, HC Suresh and driver of a private taxi to Kot Putli for the arrest of one Kishan Pal Fozi but he did not testify that secret informer had also accompanied them, whereas as per DD No 9 Ex. PW 8/B the secret informer had also accompanied them, whereas in his cross examination he stated that secret informer had met them near to village Sherpur at 11:30/12pm. It is submitted that this witness could not tell the exact place where they had gone to Kot Putli. It is further submitted FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 58 59 that PW 11 Inspt. Kuldeep Singh in his chief examination testified that on 11.11.08 he alongwith HC Suresh, HC Rajbir ,Ct. Anand and secret informer went to Kot Putli and Behror Rajasthan in a private taxi No DL 4CB 5121 driven by a driver , whereas PW 7 testified that the secret informer had met them at 11:30am /12pm near village Sherpur.
59 It is further submitted that PW 7 could not tell during his testimony that SI Kuldeep had conversation with SHO PS Behror on telephone when they were intercepted at Khirki Daula, whereas SI Kuldeep had admitted this fact.
60 Regarding PW 8 Inspt Akshay Kumar, it is submitted that in his cross examination he stated that secret informer went to Rajasthan on 10.11.2008 to verify and develop the secret information and that SI Kuldeep had gone to Rajasthan on11.11.08 but in DD No 9 dated FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 59 60 10.11.08 at about 6am the secret informer had gone alongwith SI Kuldeep Singh and these two statements are contradictory.
61 It is further submitted that PW 11 admitted in his cross examination that he did not inform police of Kot Putli or Behror regarding his visit to that place , that he had not carried out any investigation regarding the genuineness of the bus ticket, that he had not taken police remand of accused Mool Chand to carry out investigation of Udey Bhan and one Mukesh. It is submitted that PW 11 admitted in his cross examination that though he had reached the spot at 3:30pm but the accused was arrested at 4:50pm and he has not explained the delay in arrest of the accused.
62 It is further submitted that PW11 testified that the entry in the log book was made by him and he has not explained as to why he being the IO had made the entries FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 60 61 in the log book which ought have been made by the driver. 63 It is submitted that in view of the discrepancies in the testimony of the prosecution witnesses and statement of DW 8, it is proved on record that the accused had been lifted by PW 11 Inspt Kuldeep Singh from his village Sherpur P S Behror and was brought to Delhi in Swift car bearing registration No. and was falsely implicated in the present case.
64 It is further submitted that there is delay in sending the sample of the recovery substance to the FSL which is fatal to the prosecution. It is prayed that the accused be acquitted of the charges.
65 The defence counsel has further alleged that the log book of the official vehicle bearing registration No. DL l LG 0798 Ex. PW 11/D1 is containing false entries of the date: 11.11.2008 as it is mentioned therein that on that day the said vehicle was driven for 36kms. It is submitted FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 61 62 that the said vehicle was used during the investigation of this case on 11.11.2008 and it went twice to the spot and return twice to PS Crime Branch Nehru Place and one side distance between the two places is 12 kms and thus the total distance covered on that day by the said vehicle was 48 kms instead of 36kms. It is submitted that this leads to the inference that this vehicle was not used in the investigation on that day and accused was not arrested from Dhaula Kuan but was lifted from his village Sherpur at Behror and was brought to PS Crime Branch Nehru Place and then falsely implicated.
66 The defence counsel has relied upon the following judgments in support of his arguments:
" 1 State Vs Delhi Vs. Ram Avtar @ Rama 2011 (3) C.C Cases ( SC) 172.
2 Bhadur Singh Vs. State of Punjab, 2011 (3) C.C. Cases (SC) 44.
FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 62 63 3 Amarjeet Singh Vs State of Punjab 2011 C C Cases ( PB & HC) 287.
4 State of Rajasthan Vs Teja Singh & Ors, AIR 2001 SC 990."
67 On the other hand, Addl. PP for State has submitted that the contradictions/ discrepancies pointed out by the defence counsel in the case of the prosecution and the prosecution witnesses are minor in nature and do not go to the route of the case of the prosecution so as to disbelieve the testimony of the official witnesses. She has submitted that there is due compliance of Sec. 42 NDPS Act in the present case, as on receipt of secret information dated: 10.11.08 by Inspt Kuldeep Singh, the said information was brought to the notice of PW 8 Inspt Akshay Kumar, the then SHO Crime Branch Nehru Place, New Delhi and the same was reduced in writing vide DD No. 3 Ex. PW 8/A. It is submitted that both PW 8 Inspt FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 63 64 Akshay Kumar and PW 11 Inspt Kuldeep Singh have categorically testified in this regard and their testimony regarding receipt of information and reduced the information in writing vide DD No. 3 Ex. PW 8/A has not been rebutted in any manner.
68 It is further submitted that the secret information received on 11.11.08 by SI Rajpal that Mool Chand and Udey Bhan would come to bus stand Dhaula Kuan between 10:00am to 11:00am to deliver the consignment of opium was also reduced into writing vide DD No 4 dated: 11.11.08 Ex. PW 9/B by SI Rajpal and was produced before PW 8 Inspt Akshay Kumar in compliance of Sec. 42 NDPS Act and the same was forwarded by PW 8 to ACP Anti Robbery Cell. It is submitted that it has further been proved on record vide the testimony of PW 8 Inspt Akshay Kumar, PW 11 Inspt Kuldeep Singh and even PW 7 Ct Anand that PW 11 Inspt Kuldeep Singh was sent FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 64 65 to Rajasthan for verification of the contents of DD No. 3 and to develop the information and this fact has also been proved on record vide unrebutted testimony of these witnesses. It is further submitted that vide the testimony of PW 4 HC Laxman Prasad, PW 5 HC Pramod and PW 9 SI Rajpal Singh, the prosecution has duly proved on record that accused Mool Chand was apprehended at 10:30am while he was going from bus stand Dhaula Kuan towards Ring Road holding a plastic container in his right hand which was found to be containing 20kgs of opium. That it is further proved on record vide the testimony of these witnesses that two samples of 50grams each were drawn from the recovered substance and were given mark A and B respectively and that the samples and the remaining case property were sealed at the spot itself by PW 9 SI Rajpal Singh with the seal of RSS and form FSL was also filled in at the spot itself and thereafter in compliance of the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 65 66 provisions of Sec. 55 NDPS Act, all the pulandas alongwith the FSL form, copy of carbon copy of seizure memo were sent to PS Crime Branch Nehru Place to PW 8 Inspt Akshay Kumar, the then SHO who counter sealed all the pulandas and the FSL form and then got deposited the same in the custody of MHC(M). PW 3 HC Chand Ram who has proved the relevant entries in the malkhana made in the register No. 19 as Ex PW 3/A. It is further submitted that the provisions of Sec. 57 NDPS Act were also complied with and two separate reports about the arrest and recovery of opium from the possession of accused Mool Chand were put up before PW 8 Inspt. Akshay Kumar by PW 9 SI Rajpal Singh and PW 11 Inspt. Kuldeep Singh and then these were forwarded by PW 8 to ACP Anti Robbery Cell. It is submitted that both these reports have been proved on record as Ex. PW 1/C and Ex. PW 1/D respectively.
FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 66 67 69 Regarding link evidence, it is submitted that the prosecution has duly proved on record vide the testimony of PW 3 HC Chand Ram, MHC(M), PW 2 HC Sunil Kumar, PW 7 Ct Anand Pal, PW 8 Inspt Akshay Kumar that the case property was deposited in duly sealed condition in the custody of the MHC(M) and in intact condition the sample was sent to FSL Rohini for examination. It is further submitted that PW 12 Dr.Madhulika Sharma, Asstt. Director, FSL Rohini who had examined the sample Mark A drawn at the spot from the substance recovered from the possession of the accused proved her detailed report as Ex. PW 11/F which was tendered in evidence by PW 11 and as per the same the contents of the sample on chemical examination were confirmed to be opium and percentage of morphine was found to be 0.8%. It is submitted that the testimony of this witness has not been rebutted in any manner as the witness was not subjected to any cross FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 67 68 examination.
70 Regarding the defence taken by the accused that he was lifted by PW 11 SI Kuldeep Singh alongwith his staff from village Sherpur and was brought to Delhi in Swift car bearing No.DL 5121 and was falsely implicated lateron in the present case, it is submitted that the said defence is not reliable as there are material contradictions in the testimony of DW 1 Sardara Ram, DW 2 Vikram and DW 3 Dharam Chand, who allegedly witnessed the accused being lifted from village Sherpur by PW 11 Inspt Kuldeep Singh and his staff. That the testimony of DW 8 Inspt Chand Mal to the effect that he had spoken to the SHO Khirki Daula who informed him that the Swift car, referred above, was intercepted and it was found that Inspt Kuldeep Singh alongwith his staff and Mool Chand were present in the car, is also not reliable as he himself admitted in his cross examination that he had not verified FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 68 69 any such information and had no personal knowledge of the contents of DD No 486 Ex. DW 6/B which was got recorded by him after receiving information from SHO PS Khirki Daula. It is further submitted that for the reasons best known to the accused, SHO Kuirki Daula and his other staff who were present at the time of interception of Swift car have not been examined in defence. It is submitted that it is admitted case of the prosecution that PW 11 SI Kuldeep Singh alongwith his staff had gone in Swift car to Kot Putli in Rajasthan and then went to PS Behror for verification and developing the secret information received on 10.11.08 recorded vide DD No. 3 Ex. PW8/A and for investigation of case FIR No. 114/09 PS Behror District Alwar and it is also admitted case of the prosecution that when the vehicle of PW 11 was intercepted at Khirki Daula, however accused Mool Chand was not found in the said vehicle and in the case got FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 69 70 registered by DW 2 Vikram, the son of the accused against SI Kuldeep Singh for kidnapping his father Mool Chand, the statement of SHO Mahavir PS Khirki Daula and his staff i e Ct. Vinod Kumar, Ct. Kamaljit and Ct Naresh Kumar were recorded and all these police officials categorically mentioned in their respective statements that Swift Car bearing registration No. DL 5121 was intercepted at around 12:00pm but Mool Chand was not found present thereon. It is submitted that intentionally and deliberately the accused had not summoned and examined these four police officials to prove that he was present in the Swift car when it was intercepted by them since he was aware of the truth that he was not found in the car and these witnesses if had appeared in the witnessbox they would have deposed against him. It is submitted that in such circumstances there is no evidence that the statement of DW 8 Inspt Chand Mal is truthfulness that he was FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 70 71 informed by SHO PS Khirki Daula about the presence of the accused in the Swift car alongwith SI Kuldeep Singh and his staff. It is submitted that the false defence has been created by DW 2 Vikram in connivance with DW 1 and DW 3 to save the accused from legal punishment and thus no reliance can be placed on such defence. 71 Addl. PP for State has further submitted that if DW 2 Vikram had witnessed his father being kidnapped why he did not come to Delhi following his father to trace him and why no complaint was lodged with the higher authorities at Delhi against SI Kuldeep Singh and others immediately. She has drawn the attention of the court that the complaint with the Commissioner of Police Delhi was lodged by DW 2 on 3.3.09 i e after about four months of the incident. Addl. PP for State has further submitted that in the said complaint the names of Dharam Chand and Sardara Ram i e DW 1 and DW 3 also do not find mention FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 71 72 that they were witnesses to the kidnapping of the accused. 72 It is further submitted that the bus ticket Ex. PW 11/D recovered from the possession of accused Mool Chand proves that the accused had arrived at Delhi from Behror by bus and this piece of evidence has not been rebutted in any manner during cross examination of the witnesses. It is submitted that in the facts and circumstances of the case, the accused Mool Chand who was found in possession of opium of commercial quantity is liable to be convicted.
73 After hearing the submissions of both the parties, I have gone through the material on record carefully. 74 The relevant witnesses to the prosecution to prove the secret information received in the PS Crime Branch Nehru Place on 10.11.08 and 11.11.08 are PW 11 SI Kuldeep Singh, PW 9 SI Rajpal, PW 8 Inspt Akshay Kumar, the then SHO PS Crime Branch Nehru Place and FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 72 73 PW 5 HC Pramod.
75 PW 11 SI Kuldeep Singh has testified that on 10.11.08 at about 9am secret informer came to his office and informed that two persons namely Mool Chand and Udey Bhan, both resident of village around Behror in Rajasthan and who were indulging in supply of opium in Haryana, Delhi and Punjab would come to Delhi in a day or two to deliver opium to someone. The information was further to the effect that Mool Chand had earlier also been arrested in Delhi in the case of Opium and Udey Bhan was reportedly Ex.Sarpanch of the village and they had good collusion with the local administration and further the opium was always available with them for supply. The secret informer further informed him that in case either of them would come to Delhi he would inform PW 11. PW 11 further testified that he passed on this information to Inspt Akshay Kumar and to ACP Sh Sanjay Tyagi and FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 73 74 also produced the secret informer before them. The aforesaid testimony of PW 11 has been duly corroborated by PW 8 Inspt Akshay Kumar who deposed that the secret informer was produced before him and ACP Sanjay Tyagi. No suggestion was given to PW 11 that he had not received any such secret information or that he also did not pass on the said information to PW 8 Inspt.Akshay Kumar and ACP Anti Robbery Cell. Similarly, no suggestion was given to PW 8 during his cross examination by the defence counsel that no such secret information received on 10.11.08 by PW 11 nor it was passed on to him as well as ACP Anti Robbery Cell. Vide the unrebutted testimony of PW 8 it has also been proved on record that DD No 3 Ex. PW 8/A was recorded by PW 8 himself in the DD register maintained at PS Crime Branch Nehru Place. Hence, the prosecution has duly proved on record that the secret information as referred above was received in the PS by FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 74 75 PW 11 which was conveyed to PW 8 and ACP Narcotics Cell and was reduced into writing vide DD NO 3 Ex PW 8/A which also amounts to compliance of provisions of Sec. 42 of the NDPS Act.
76 PW 11 has further testified that under the directions of ACP, to develop the information in Rajasthan he had left his office on 11.11..08 alongwith his staff consisting of three police officials and secret informer in a private taxi bearing registration No DL 4 CB 5121 driven by driver and went to Kot Putli as at the same time he was to conduct the investigation of case FIR 463/07 PS Keshav Puram and had left Delhi vide DD No 9 Ex. PW 11/A. PW 11 was not cross examined with regard to his aforesaid testimony nor suggested that the contents of DD No 9 Ex PW 11/ A were fabricated or that he had not gone to Kot Putli for developing the secret information as mentioned in DD No 3 Ex PW 8/A or for the investigation of FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 75 76 case FIR No 463/07 PS Keshav Puram. The testimony of PW 11 to this effect has been corroborated by PW 8 on all the material particulars but no suggestion was given to this witness either that PW 11 had not gone to Kot Putli for verification and development of the secret information recorded vide DD No. 3 Ex. PW 8/A or for the investigation of the case, referred above. Hence, the prosecution has proved on record that to verify and develop the secret information as mentioned in DD No 3 Ex.PW8/A and for the investigation of case FIR 463/07 PS Keshav Puram wherein accused Kishan Pal Fozi was wanted, PW 11 alongwith his staff had gone to Kotputli vide DD No.9 Ex. PW 11/A. 77 Now as per the prosecution another secret information was received in the office of PS Crime Branch Nehru Place on 11.11.08 at about 8am by PW 9 SI Rajpal Singh. He deposed that on that day at about 8am he was FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 76 77 present in his office when secret informer came to him and informed him that two persons namely Mool Chand and Udey Bhan both resident of Rajashtan would come to Delhi on that day between 10am to 11am for supply of consignment of opium at Dhaula Kuan Bus Stand and they are indulging in supply of the same from Rajasthan to Delhi, Punjab and Haryana if raided could be apprehended. He testified that the said information was brought to the notice of PW 8 Inspt Akshay Kumar the then SHO PS Crime Branch Nehru Place and secret informer was also produced before him. He interrogated the secret informer and after satisfying himself informed ACP Anti Robbery Cell who directed to conduct the raid immediately. PW 9 testified that he recorded the said secret information vide DD No 4 at 08:30am the photocopies of which are Ex. PW1/B and Ex PW 9/B respectively and the carbon copy of which is Mark PW FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 77 78 9/A1. PW 4 HC Laxman Prasad and PW5 HC Pramod Kumar also testified on the lines of testimony of PW9 with regard to receiving of secret information and that the same was passed on to PW 8 and then to ACP Anti Robbery Cell. PW 8 Inspt. Akshay Kumar has corroborated the testimony of PW 9 as well as of PW 4 HC Laxman Prasad and PW 5 HC Pramod that the secret information received by PW 9 was passed on to him and secret informer was also produced before him and after he interrogated the secret informer, verified and confirmed the secret information given to PW 9, he ( PW 8) telephonically informed ACP Sanjay Tyagi in this regard and ACP directed to conduct the raid as per law immediately. He further testified that SI Rajpal had also produced the copy of DD No. 4 as referred above, before him in compliance of the provisions of Sec. 42 of the NDPS Act which he forwarded to ACP Anti Robbery Cell. The testimony of PW FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 78 79 9 SI Rajpal Singh, PW 4 HC Laxman Prasad, PW 5 HC Pramod and PW 8 Inspt Akshay Kumar has not been rebutted in cross examination by the defence counsel. No suggestion was given to PW 9 that he had not received any such information or that the said information was not reduced in writing vide DD No 4A or the same was not passed on to PW 8 and then to ACP Sh Sanjay Tyagi. Similarly, no suggestion to this effect was given either to PW 4 or PW 5 or even to PW 8 Inspt Akshay Kumar. Hence, the prosecution has duly proved on record the receipt of secret information by PW 9 at about 9am on 11.11.08 that two persons namely Mool Chand and Udey Bhan, both resident of Rajasthan would come to Delhi on that day between 10am to 11am for supply of consignment of opium, at Dhaula Kuan bus stand Delhi and that the said information was reduced in writing by PW 9 vide DD No 4A as referred above, in compliance of the provisions of FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 79 80 Sec. 42 NDPS Act.
78 So far the recovery of opium from the possession of accused Mool Chand is concerned, the relevant witnesses examined by the prosecution are PW 4 HC Laxman Prasad,PW 5 HC Pramod and PW 9 SI Rajpal Singh. PW 9 testified that he organised the raiding party under the directions of senior officers and alongwith his members of the raiding party and secret informer left their office for the spot in Tata 407 DL 1L G 0798 and reached bus stand Dhaula Kuan at about 9am. He testified that he had recorded departure entry DD No 5 Ex.PW 9/C. He deposed that 3 /4 persons were asked to join the raiding party near Safdarjung Hospital but they refused. On reaching near the spot again he made efforts to join the public persons in the raiding party by requesting the occupants of STD Booth and 3 /4 TSR drivers but they refused and hence without wasting further time he briefed FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 80 81 the members of the raiding party and took their respective positions. He testified that at about 10:30pm the accused Mool Chand was spotted coming towards Ring Road and was holding a plastic container in his right hand. At the pointing out of the secret informer that he was Mool Chand regarding whom he had given the secret information, he was apprehended near the transformer. He further testified that on interrogation he disclosed his name as Mool Chand Yadav. The accused was made aware of the secret information received by the police. He was further informed about his legal right that his search could be conducted before a Magistrate or a Gazetted Officer if he so desires and that they could be called at the spot. He was also informed that he could conduct the search of the police party as well as the police vehicle. PW 9 then deposed that notice U/s 50 NDPS Act Ex PW 4/A was served upon the accused and carbon copy was given to him. FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 81 82 Accused refused to avail his legal right U/s 50 NDPS Act and made an endorsement to this effect on Ex PW 4/A itself. Thereafter the casual search of the accused was conducted. Then the container in possession of the accused was checked and it was found containing semi solid substance of coca cola colour smelling foul. On checking and smelling it was found to be opium. The same was weighed with the help of weighing scale and was found to be 20 kgs. To the similar effect is the testimony of PW 4 HC Laxman Prasad and PW 5 HC Pramod. During lengthy cross examination of these three witnesses, nothing material could be extracted by the defence to create any doubt about the truthfulness of these witnesses. No suggestion was given to any of the witnesses that notice U/s 50 NDPS Act Ex PW4/A was not served upon the accused or that he had not made endorsement from point X to X thereon refusing to avail his legal right to be FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 82 83 searched in the presence of a Magistrate or a Gazetted Officer. This itself leads to the inference that the accused was apprehended near the Transformer at Dhaula Kuan bus stand and was served with notice U/s 50 NDPS Act and was made aware of his right to be searched in the presence of a Magistrate or a Gazetted Officer. Similarly, the testimony of all these three witnesses that the container found in possession of the accused was containing opium and on being weighed it was found to be 20 kgs has not been disputed or rebutted in any manner. The defence of the accused that he was not apprehended by PW 9 but was illegally lifted from his native village and was then illegally detained has not been proved on record. It is the defence of the accused that he was illegally lifted from his village Sherpur by PW 11 SI Kuldeep Singh and his staff on 11.11.2008 at about 10/10:30am and was brought to Delhi and was falsely implicated in the present case. FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 83 84 However, no suggestion was given to PW 9 or even to PW 4 HC Laxman Prasad and PW 5 HC Pramod who are witnesses to the apprehension of the accused and recovery of opium from his possession near Dhaula Kuan bus stand that they had never visited the said spot and that accused was lifted / kidnapped by SI Kuldeep from his village Sherpur and was brought to Delhi and was falsely implicated. The defence of the accused was not put to any of these witnesses. It is further important to notice that though in the defence accused has examined 8 witnesses, however the accused has failed to prove his defence through the testimony of these witnesses as DW 1 Sardar Ram deposed that the accused was kidnapped in a jeep, whereas as per the defence of the accused he was kidnapped in a Swift car bearing registration No DL 5121. Moreover, the testimony of DW 1 is other also no reliable as he testified in one breath that while accused Mool Chand was driven FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 84 85 away in the jeep, Vikram the son of Mool Chand had also reached the spot and at a distance of 15/20 paces he had reached there on hearing the commotion and that thereafter he ( DW1) went to the house of Mool Chand to inform that he was taken away by some persons. He has failed to reason as to why he had gone to the house of accused to inform that he was taken away by some persons when DW 2 Vikram son of accused had already reached the spot. It creates doubt about the truthfulness of this witness. At the same time, this witness during cross examination by Addl. PP for State could not tell the date, month or year of his retirement from Army and claimed that he was illiterate but at the same time he gave the date of incident as 11.11.2008 and stated that he remembered the same. It is important to observe that he was examined as DW 1 on 26.8.2011 i e after about 3 years of the incident but he still remembered the date of incident but FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 85 86 not the date of his retirement which would have been more important for him. This witness also could not give the physical description of the persons who had driven away Mool Chand though he stated that he had seen them for 10 minutes. In his chief examination he stated that one of those persons had given him leg blow and another had shown him a pistol but he did not complain to the police in this regard. The witness admitted that he had given statement before the police in a case registered with PS Behror lodged by Vikram son of accused Mool Chand regarding taking away his father and stated that whatever he stated in this court was also mentioned in that statement but he was confronted with the certified copy of his said statement Ex DW 1/PA where these facts do not find mention. The perusal of the statement Ex DW 1/PA shows that the said statement is totally in contrast to what he testified before this Court. He testified that FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 86 87 when he reached the plot of Amar Singh he saw Mool Chand in sliver colour jeep at rear seat whereas in the statement referred above, he mentioned that it was a vehicle bearing No. 5121 and three persons were forcibly pushing Mool Chand in the same. Here it is observed that though the accused in his statement U/s 313 Cr PC has claimed that one Mukesh was also pushed alongwith him inside the Swift car but DW 1 did not testify in this regard which creates doubt about his truthfulness. Similarly, the presence of DW 3 Dharam Chand is also doubtful at the spot, as he too did not testify about any such person namely Mukesh. DW 3 testified that on 11.1.2008 at 10/10:30am while he was returning from his fields, he was called by Sardara Ram since he was at some distance from him and he asked him to help Mool Chand being taken away in a car of white /cream colour, whereas DW 1 has nowhere testified that he had called DW 3 to FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 87 88 help Mool Chand who was being taken away. DW 3 testified that there were 4/5 persons present in the car, whereas DW 1 testified there were 2/ 3 persons besides Mool Chand. DW 3 testified that one of those 4 /5 persons pointed out pistol towards him and told him to keep away or else he would fire but DW 1 did not corroborate his said testimony. DW 3 further testified that after they had raised alarm and had called other villagers that Mool Chand was being taken away by those persons and 2 /4 persons from the village reached there but before that Mool Chand had been taken away towards Delhi. As per his testimony DW 2 Vikram son of Mool Chand reached there after sometime and made enquiry from him as to what had happened and then DW 3 told him that his father was taken away by those persons in the car. Then DW 2 asked him about number of the car and DW 3 gave him the number of the car as DL 5121. To the contrary, as per DW FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 88 89 1, DW 2 had reached the spot and was at a distance of 15/20 paces when the jeep left and he himself noted down the number of the jeep. At the same time it is observed that though DW 1 and DW 3 has nowhere testified that they had called DW 2 to the spot but DW 3 testified that he heard someone calling him and he rushed out of the house for the said place and when he was at a distance of about 50 feet from the main road he was told by DW 1 and DW 3 who were calling him that his father was taken away in a Swift car of silver colour and he could see the number of the car from distance as DL 5121. The said statement of DW2 is contrary to the statement of both DW 1 and DW 3. DW 1 did not depose that it was a Swift car of silver colour and DW 2 deposed that it was a car of white cream colour but did not tell DW 3 that it was a Swift car. DW 3 stated that DW 2 asked him about the number of the car, whereas DW 2 stated that he himself noted the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 89 90 number of the car. All these discrepancies in the testimony of these three witnesses creates doubt about their being truthful. Rather they had created a false defence to save the accused from legal punishment who had already been apprehended at Delhi at about 10:30am alongwith 20 kgs of opium. The other relevant witnesses examined by the defence is DW 6 who proved DD No 480 dated : 11.11.2008 Ex. DW 6/A lodged by DW 2 regarding taking away of his father in silver swift car bearing registration No. DL 5121 and consequently nakabandi was done enroute to Delhi. He also proved DD No 486 recorded at 2:10pm as Ex PW 6/A by DW 8 Inspt Chand Mal regarding his arrival after investigation of DD No. 480. DW8 testified that he investigated DD No 480 Ex.DW 6/A and deposed that during enquiry while he was present at the house of accused alongwith Dy SP Behror, he received a telephone call from Gurgaon that the vehicle of said description was FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 90 91 intercepted at the Toll of Khirki Daula by the SHO of PS Khirki Daula and the caller also gave the mobile umber of the SHO. DW 8 then contacted the SHO PS Khirki Daula on the said number who informed him that Swift car bearing registration No. DL 5121 was intercepted and in the said car SI Kuldeep Singh alongwith his staff were present and Mool Chand was also in the said car. SHO PS Khirki Daula also made him to speak to SI Kuldeep Singh who informed him that he was SI with Crime Branch and that Mool Chand was involved in supply of opium and earlier also there were cases registered against him and now he was taking him alongwith him for enquiry purposes and he also gave his telephone number to DW 8. He deposed that on return to PS Behror he recorded all these facts in DD No. 486 Ex. DW 6/B. However, during cross examination by Ld. Addl. PP for State this witness admitted that he had not verified the said information FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 91 92 received from SHO Khirki Daula which he reduced in writing vide DD No. 486 Ex. DW 6/B and has no personal knowledge regarding the contents of the DD since he had not verified the same. During the course of arguments, Addl. PP for State has drawn my attention towards the testimony of PW 11 SI Kuldeep Singh who himself has admitted that after he was returning to Delhi he had lodged DD No. 6 at 02:15pm on 11.11.08 Ex. PW 11/B, wherein he had mentioned all the details of his visit to Rajasthan. Perusal of the aforesaid DD reveals that therein it is also mentioned that at about 12:15pm at Toll Khirki Daula their vehicle was intercepted and SI Mahavir Singh PS Khirki Daula also informed him that he had message from SHO and DSP Behror that in their vehicle Mool Chand was being kidnapped from Behror to Delhi. SHO searched their vehicle but except the staff and driver no one was found therein. It is further mentioned therein FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 92 93 that I cards of the staff were also checked by the SHO and he had retained the zerox copy of the same. Addl. PP for State has further drawn my attention that in the case registered vide FIR No. 114/09 U/s 365/192/195/120B IPC with PS Behror District Alwar at the instance of DW 2 Vikran son of accused Mool Chand, the statements of Mahavir Singh, SHO PS Khirki Daula and his staff Ct Vinod Kumar, Ct Kamaljit and Ct Naresh Kumar were recorded and she produced the certified copies of their statements recorded U/s 161 Cr PC in this regard. I have perused these statements. In the statements of all these police officials, it is mentioned that when the Swift car was intercepted it was consisting of one driver and four other police officials. In the statement of SI Mahavir Singh it is mentioned that the names of these four police officials were SI Kuldeep Singh, SI Rajbir Singh, HC Suresh and Ct. Anand Pal and the fifth person in the said FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 93 94 car was the driver of the vehicle. In none of the statements of these police officials it is mentioned that there was any person by the name of Mool Chand present in the car. It is mentioned in the statement of SI Mahavir Singh that no person by the name of Mool Chand was present in the car and that this fact he had conveyed to CO Behror on telephone and thereafter at the instance of SHO PS Behror he had allowed the vehicle, referred above, to leave and further it is mentioned therein that he had never informed the SHO PS Behror that Mool Chand was found in the said vehicle. In view of these statements of the police officials of PS Khirki Daula, it is crystal clear that though the Swift car in which PW 11 SI Kuldeep Singh was returned to Delhi alongwith his staff consisting of three police officials and one driver, accused Mool Chand was not found therein. In view of the certified copies of the statements of SI Mahavir Singh, SHO PS Khirki Daula and FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 94 95 his staff the statement of DW 8 to the effect that he was informed by SHO PS Khirki Daula that in the Swift car intercepted by him, Mool Chand was found present in the said car alongwith SI Kuldeep Singh and that SI Kuldeep Singh had told him that he was taking Mool Chand alongwith him for enquiry purpose does not stand proved. It is important to observe that the accused did not intentionally examine SI Mahavir, SHO PS Khirki Daula who had intercepted the Swift car in which PW 11 SI Kuldeep Singh was returning to Delhi from Rajasthan, as he was aware of that the statement of DW 8 to this effect that he was informed by SHO PS Khirki Daula about the presence of accused in the Swift car was false. 79 Besides, it is also observed that though it is claimed by the accused in his statement U/s 313 Cr PC in answer to question no 17 and question No. 61 that on the day of the incident he had left his house alongwith one FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 95 96 Mukesh who was a mediator in the sale/ purchase of his land situated at NH8 near village Sherpur and when he reached near the land he was told by Mukesh to wait for the proposed buyer but in the meantime one Swift car No DL 5121 came and three persons out of the car and asked him about the rate of his land but the deal could not materialise as those persons did not agree to pay the price which he was demanding and at this he and Mukesh the mediator were pushed inside the Swift car and while they were pushing him he spotted Sardara Ram ie DW 1 and Dharam Chand i e DW 3 and asked them to save him. Here it is observed that neither DW 1 Sardara Ram nor DW 3 Dharam Chand testified before this Court that alongwith accused Mool Chand any other person i e Mukesh the mediator was also pushed inside the Swift car. This itself shows that the accused has taken false defence in his statement U/s 313 Cr PC to this effect that he was lifted FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 96 97 alongwith one Mukesh by SI Kuldeep Singh and his staff from his village Sherpur and was brought to Delhi in a Swift car. Moreover, there is no explanation on behalf of the accused as to what happened to Mukesh as it is not his defence that Mukesh was also brought to Delhi and implicated in the present case. In his entire statement accused has not disclosed as to where Mukesh went or where he was kept by the police after he was lifted alongwith him from village Sherpur. Even DW 8 Inspt Chand Mal did not testify that he was informed by SHO PS Khirki Daula that besides, Mool Chand one Mukesh was also found in the Swift car alongwith the officials of crime branch. The certified copies of the statements of SHO and staff of PS Khirki Daula recorded U/s 161 Cr PC in case FIR No. 114/09 PS Behror U/s 365/192/195/120B IPC also do not find mention about the presence of Mukesh in the Swift car when it was intercepted at Khirki Daula. FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 97 98 Moreover, if at all any such person namely Mukesh was also lifted by PW 11 SI Kuldeep Singh alongwith accused Mukesh, then he ought have been produced in the defence. At the same time question arises as to why the report was lodged with the police by DW 2 Vikram the son of accused Mool Chand only with regard to kidnapping of his father i e accused Mool Chand and not about Mukesh who was accompanying him at that time. DW 8 who had visited the house of accused for enquiry of DD No 480 Ex.DW 6/A also did not state that when he visited the house of accused, he was informed about the kidnapping of accused Mukesh also. All these circumstances clearly indicate that the accused was kidnapped from village Sherpur alongwith Mukesh is concocted to save the accused from legal punishment. It is observed that from the possession of accused bus ticket Ex.PW11/D was recovered from his jamalatashi and as per the testimony of PW 11 it FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 98 99 was for two persons and it leads to the inference that the accused had not travelled to Delhi by bus alone but alongwith someone, may be with his associate Udey Bhan who was named by the secret informer on 10.11.2008 or may be somebody else was accompanying him and it is only for this reason, immediately after apprehension of the accused at Delhi at about 10:30am, the matter was reported to PS Behror at 11:00am vide DD No 480 Ex. DW 6/A that the accused was kidnapped in a Swift car bearing No. DL 5121. It is observed that in the said DD there is no reference to the kidnapping of one Mukesh alongwith the accused and there is no explanation why the name of Mukesh was not mentioned in the said DD, though it is claimed by the accused that he too was kidnapped alongwith him. In view of all these discrepancies in the defence taken by the accused, the accused has failed to create any doubt about the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 99 100 truthfulness of the prosecution witnesses. Admittedly, there is no allegation against the official witnesses, particularly, PW 11 SI Kuldeep Singh that he had any enmity with the accused to falsely implicate him and that too after bringing him to Delhi from his village Sherpur at Behror in Rajasthan.
80 It is argued by the defence counsel that no public witness was joined in the investigation by PW 9 SI Rajpal Singh and he did not serve any notice upon the public persons who refused to join the investigation and left without disclosing their names and addresses. It is further submitted that the testimony of PW 9 SI Rajpal Singh to the effect that the owner of STD booth situated at DSOI club did not disclose his name due to apprehension of harassment is not possible. Further that PW 9 SI Rajpal Singh admitted that he did not request the owner of the booth of Pollution Check Centre for joining the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 100 101 investigation and he voluntarily stated that they were not having sufficient time to ask everybody to join the investigation. It is submitted that since no public person was joined at the time of apprehension of accused and alleged recovery of opium from his possession, as such no reliance can be placed on the testimony of the official witnesses only. However, the aforesaid argument is without merits as all the witnesses i e PW 4 HC Laxman Prasad, PW 5 HC Pramod and PW 9 SI Rajpal Singh have deposed about efforts made to join the independent witnesses but they refused. Nodoubt, PW 9 had power to take action against such public persons who refused to join the investigation but if he had resorted to such action, it was quite likely that the police party had not reached the spot in time and they might not have been able to apprehend the accused with opium. Time was more precious and could not be wasted and PW 9 SI Rajpal FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 101 102 Singh categorically stated that they were not having sufficient time to ask everybody to join the investigation. At the same time the counsel for accused has failed to point out any such discrepancy in the testimony of official witnesses to disbelieve them. It has been held in Catina of Judgments by the Hon'ble Apex Court as well as by our own High Court that the testimony of official witnesses cannot be disrespected unless there are material discrepancies in their testimony and as such they need to be corroborated by independent evidence. However, in the present case there is nothing on record to disbelieve the testimony of the official witnesses or which makes it necessary to seek independent corroboration from the public witnesses. No such material contradictions in the testimony of the official witnesses have been pointed out by the counsel for either of the accused so as to say that the testimony of official witnesses does not inspire credence FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 102 103 and requires independent corroboration. No doubt some discrepancies have been pointed out by defence counsel in the testimony of official witnesses such like that PW 5 HC Pramod stated that mouth of polythene in which samples were kept were tied with rubber band but when sample Mark B was produced in Court its mouth was tied in the form of knot, that PW 9 SI Rajpal Singh could not tell if the polythene in which the samples were drawn were having handle, that PW 9 testified that seal handed over to PW 4 HC Laxman Prasad was returned to which after 1 ½ months but he did not lodge any DD to this effect, in my opinion, these contradictions are minor in nature and may have occurred due to loss of memory and lapse of time. 81 It is held by the Hon'ble Apex Court in the case of "State of U. P Vs Krishna Master & Ors reported in AIR 2010 Supreme Court 3071 that:
"Minor discrepancies on trivial matters not FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 103 104 touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. '' It is further held that " the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 104 105 benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time. ''
82 Thus in the facts and circumstances of the present case, the contradictions and discrepancies pointed out by the defence counsel in the present case, in my opinion are not touching the core of the case and cannot be a ground for rejection of the evidence of the official witnesses in entirety without independent corroboration. As such, nonjoining of the public witnesses is not fatal to the prosecution.
83 In the present case no reason has been assigned by the accused persons as to why they would be falsely implicated by the police officials. Sec. 35 and Sec. 54 FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 105 106 NDPS Act raises presumption with regard to the culpable mental state on the part of the accused and also place burden on the accused to rebut such presumption. However, the bare perusal of such provision clearly shows that presumption would operate only in the event of circumstances contained therein are fully satisfied, only then the legal burden would shift. With a view to bring within the preview of provisions of Sec. 54 NDPS Act, element of possession of the contraband is essential so as to shift the burden on the accused. In the present case it has already been held above, that the prosecution has proved its case beyond reasonable doubt that the accused was found in conscious possession of opium and now the legal burden shifted upon the accused to rebut the said presumption. However, accused though has led the defence evidence but in my opinion, it has failed to rebut the presumption raised against him. It is not only through FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 106 107 the defence evidence that the presumption raised U/s. 35 & 54 NDPS Act which could be rebutted but this could be done through the cross examination of the prosecution witnesses as well but the accused has failed to rebut the said presumption raised against him even through the cross examination of the prosecution witnesses. In these circumstances, the prosecution has duly proved that the accused was found in conscious possession of opium. 84 Now it is to be seen as to whether the recovered substance from the accused was opium. To this effect, the prosecution has examined PW 12 Dr. Madhulika Sharma, Asstt. Director FSL Rohini who had examined sample parcel Mark A received in the office of FSL Rohini alongwith the forwarding letter and specimen seal impressions (RSS and AK) and seals were found to be intact and were tallied with the specimen seal impressions. She testified that Mark A was found to FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 107 108 contain dark brown sticky, resinous material, stated to be Opium weight approximately 50grams with polythene. That the contents of Mark A were examined and the same were confirmed to be Opium and percentage of morphine was found to be 8%. She proved her detailed report as Ex PW 11/F. 85 The provisions of Sec. 55 NDPS Act have also been duly complied with during the course of investigation of the present case. The relevant witnesses examined by the prosecution to this effect are PW 9 SI Rajpal Singh, the initial IO, PW 5 HC Pramod and PW 8 Inspt Akshay Kumar, the then SHO PS Crime Branch Nehru Place. As per the testimony of PW 9 all the three pulandas i e Mark A and Mark B containing the samples drawn from the recovered substance and Mark C containing the remaining recovered substance, the copy of the seizure memo and form FSL duly sealed with the seal of RSS were handed FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 108 109 over by him to PW 5 HC Pramod to be handed over to the SHO for compliance U/s 55 of the NDPS Act and he was also handed over rukka to be delivered to the duty officer. PW 5 HC Pramod Kumar has corroborated the testimony of PW 9 on all the material particulars and both these witnesses were not subjected to any cross examination in this regard by the counsel for the accused. At the same time, PW 8 Inspt Akshay Kumar also testified that at 2:40pm PW 5 HC Pramod came to PS Crime Branch and handed over rukka to the duty officer for registration of the FIR and at about 2:42pm PW 5 came to his office and produced two pulandas sample Mark A and B respectively and one pulanda of katta Mark C alongwith carbon copy of seizure memo of opium and FSL form to him. He stated that all the three pulandas and form FSL were bearing the seal of RSS and he counter sealed all these four articles with his seal of AK and mentioned the FIR number after FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 109 110 obtaining from the duty officer and then called the MHC(M) ie PW 3 HC Chand Mal to his office alongwith register No 19 and deposited the case property in intact condition in the malkhana vide entry Ex. PW 3/C in register No. 19. PW 8 has also not been cross examined on his aforesaid testimony and there was no suggestion given to the witness that the provisions of Sec. 55 of the Act were not complied with. Hence the prosecution has proved on record the compliance of the provisions of Sec. 55 NDPS Act.
86 Similarly, the provisions of Sec. 57 NDPS has also been complied with which facts stands proved vide the testimony of PW 9 SI Rajpal Singh, PW 11 Inspt Kuldeep Singh, PW 8 Inspt Akshay Kumar and PW 1 Ct Nitin. PW 9 testified that he had complied with the provisions of Sec. 57 NDPS Act vide special report Ex. PW 1/C which was forwarded by him to the SHO. PW 11 Inspt Kuldeep FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 110 111 Singh also testified that he had prepared the special report U/s 57 NDPS Act Ex. PW 1/D and forwarded the same to the SHO. PW8 Inspt Akshay Kumar has corroborated the testimony of both PW 9 and PW 11 and stated that on 11.11.08 the special report Ex PW 1/C regarding seizure of 20 kgs opium from the possession of accused Mool Chand was produced before him by PW 9 SI Rajpal Singh which he forwarded to ACP and further testified that on the same day another special report Ex PW 1/D regarding the arrest of the accused was produced before him by SI Kuldeep Singh which he had also forwarded to ACP concerned. He proved his signature at point X on both the special reports. Vide the testimony of PW1 Ct. Nitin who was working as Reader to ACP Anti Robbery Cell Crime Branch Nehru Place testified that on 12.11.08 in the morning hours he had received three documents in original comprising of DD No 4 dated FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 111 112
11.l1.08 ie Ex PW1/B, the special report U/s 57 NDPS Act regarding seizure of 20 kgs of opium Ex. PW 1/C and the special report U/s 57 NDPS Act regarding the arrest of accused Mool Chand Yadav i e Ex PW 1/D, regarding which he proved the entries made in diary register at serial No. l280 Ex. PW 1/A and deposed that he had put all these documents before the ACP who had put his signatures on all of them in his presence. During cross examination this witness categorically denied that the aforesaid reports were not received by him in the office or were not put before the ACP concerned. In view of the testimony of witnesses referred above, it is proved by the prosecution that the provisions of Sec. 57 NDPS Act were duly complied with.
87 Defence counsel has argued that there is a delay in sending the sample of the recovered substance for examination to FSL Rohini and thus it is fatal to FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 112 113 prosecution. In the present case the recovery of opium was effected from the possession of accused on 11.11.08. The sample Mark A drawn from recovered substance was sent to FSL Rohini for chemical analysis on 10.12.08 as deposed by PW 2 HC Sunil Kumar but it was not received in FSL for want of rubber stamp of the SHO on FSL form and consequently it was deposited in FSL Rohini on 15.12.08 as deposed by PW 3 HC Chand Ram , MHC(M) and PW 7 Ct. Anand Pal. Merely for the reason there is delay in depositing of sample in FSL Rohini, no adverse inference can be drawn against the prosecution, unless it has caused any prejudice to accused or there is likelihood of tampering of the case property. It is held by the Hon'ble Supreme Court in the case of "Jarnail Singh Vs. State of Punjab reported in 2011 (2) JCC ( Narcotics) 86 that :
" Mere delay in sending the sample of the narcotic to the office of chemical examiner FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 113 114 would not be sufficient to conclude that the sample had been tampered with."
In the case of Balbir Kaur Vs State of Punjab, 2009 (3) JCC (Narcotics) 143 Hon'ble Apex Court made following observations:
" As far as delay in sending the sample is concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case 6 wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the Court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case.'' FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 114 115
88 The examination of the evidence led by prosecution proves that the delay in sending sample that case property including samples Mark A and B and form FSL were handed over by PW 9 SI Rajpal, the seizing officer to PW 5 HC Pramod alongwith rukka, who carried the same to the PS Crime Branch Nehru Place, where he handed over rukka to duty officer and the case property and FSL form to PW 8 Inspt Akshay Kumar, the SHO, who then checked all the pulandas and FSL form which were all bearing seal of RSS and then PW 8 counter sealed them with his seal of AK, took the FIR number from Duty officer and wrote on all the pulandas and then deposited them in the custody of PW 3 HC Chand Ram,MHC(M) vide entry Ex.PW 3/A made in register No. 19 and PW 8 lodged DD No 9 Ex.PW 10/C in this regard. PW 8 Inspt Akshay Kumar and PW 3 HC Chand Ram categorically deposed that case property was deposited in intact condition in the FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 115 116 malkhana. Further PW 3 deposed that Sample Mark A was handed over to PW 2 HC Sunil Kumar on 10.12.08 for deposit in malkhana in intact condition and PW 2 deposed that since samples and FSL form were not received in FSL Rohini, he deposited the same in malkhana and so long the pulandas and FSL form remained in his custody the same were not tampered with. Similarly, PW7 Ct Anand Pal who carried sample and FSL form on 15.12.08 for deposit in FSL Rohini deposed that so long the same remained in his custody, the same were not tampered with. Besides, as per FSL report Ex. PW 11/F, when the sample and FSL form were received in FSL Rohini, seals were in intact and were tallied with specimen seals as per forwarding letter i e FSL form.
89 In view of the aforesaid clear cut evidence, it cannot be said that there was any infirmity in the link evidence merely because there was delay of few days in FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 116 117 sending the sample to the office of the chemical examiner. 90 The argument of the defence counsel is that the entry in the log book Ex. PW 11/D1 to the effect that on the day of the incident the official vehicle was driven 36 kms is fabricated and that the vehicle was never taken to spot on that day as no incident had taken place and accused was lifted from village Sherpur at Behror and was falsely implicated. It is seen that the in the official vehicle Tata 407 the raiding party had reached the spot at Dhaula Kuan from PS Crime Branch, Nehru Place and again PW 5 went to PS in the said vehicle from spot alongwith rukka and case property. The vehicle then was brought to spot by PW 11 and finally after proceedings at spot, it took PW 11 and other officials to PS. It is seen that the testimony of PW 4 and PW 5 to the effect that the distance between PS Crime Branch and spot at Dhaula Kuan is 12 to 13kms was on estimated basis as they were not driving the vehicle FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 117 118 and moreover PW 9 Rajpal testified during his cross examination that the distance was approximately 10 kms and PW 11 SI Kuldeep categorically testified that the distance was 9 to 10 kms and has denied the suggestion of the defence counsel that the distance between PS Crime Branch Nehru Place and the spot is 12.5kms. Moreover, DW 7 Ct Surender who was the driver of the vehicle at the relevant time categorically testified in his chief examination that the one side distance from PS Crime Branch to the spot is 9kms and this fact has not been rebutted or disputed in any manner by the defence counsel as this witness was produced in the witness box by the defence itself, so it is the case of even the accused that the distance between these two places was 9 Kms and as such there was no discrepancy in the log book to show or to lead to any suspicion that the vehicle was not used on that day and the entry in the log book was fabricated. DW 7 has FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 118 119 categorically testified in cross examination that he had noted the reading of Tata 407 used in the investigation of this case from the meter and that the vehicle was being regularly checked and maintained for its accuracy and service. He again reiterated that on the day of the incident the said vehicle was driven 36kms.
91 In view of the above discussion,the prosecution has duly proved that in pursuance to secret information accused Mool Chand Yadav was apprehended on 11.11.2008 at about 10:30am from near the Transformer DSOI Club, Dhaula Kuan, New Delhi and was found in conscious possession of 20kgs of Opium illegally. Hence, the accused is convicted for the offence punishable U/s. 18(c) NDPS Act.
Announced in the (Ravinder Kaur) open court today. Spl. Judge (NDPS) Dated: 30.11.2011 ASJ/ Dwarka/ N.D FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 119 120 FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 120 121 State Vs Mool Chand Yadav FIR No. 20/08 PS Crime Branch Nehru Place 30.11.2011 Present: Ms Satwinder Kaur, Ld. Addl. PP for State.
Accused from J/C with Sh Vikas Bharti, adv. Vide separate judgment dictated and announced, accused Mool Chand Yadav is convicted for the offence punishable U/s 18(c) NDPS Act.
Put up for arguments on the point of sentence on 09.12.2011.
(Ravinder Kaur) Special Judge (NDPS/ ASJ Dwarka Courts/ ND 30.11.2011.
FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 121 122 State Vs Mool Chand Yadav FIR No. 20/08 PS Crime Branch Nehru Place 09.12.2011 Present: Ms Satwinder Kaur, Ld. Addl. PP for State.
Accused from J/C with Sh Vikas Bharti, adv. On the request of both the parties, case is adjourned for arguments on the point of sentence on 15.12.2011.
(Ravinder Kaur) Special Judge (NDPS/ ASJ Dwarka Courts/ ND 09.12.2011.
FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 122 123 FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 123 124 FIR No. 20/08 State Vs. Mool Chand Yadav Page No. 124