Delhi District Court
State vs . Rani on 9 September, 2019
IN THE COURT OF SH. ARUN GOEL METROPOLITAN MAGISTRATE07, NORTH, ROHINI COURTS, DELHI State Vs. Rani FIR No. 68/06 PS. Narcotic Branch U/s 21/29 NDPS Act JUDGMENT
1) The date of commission : 01.08.2006
Of offence
2) The name of the complainant : SI Sunil Jain, PS Narcotics
Branch, Delhi.
3) The name & parentage
Of accused : 1. Rani,
w/o Sh. Ashok Kumar
r/o F3/8, Sector16, Rohini, Delhi.
2. Ram Avtar
s/o Late Mange Ram
r/o A58, Nihal Vihar, Nangloi,
Delhi.
4) Offence complained of : U/s 21/29 of NDPS Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 09.09.2019
FIR No. 68/06 State Vs. Rani 1/15
Date of Institution : 26.10.2006
Judgment reserved on : 09.09.2019
Judgment announced on : 09.09.2019
THE BRIEF REASONS FOR THE JUDGMENT:
1. The case of the prosecution is that on 01.08.2006 at 6:15 pm, near in gate, Babu Jagjivan Ram Memorial Hospital, Jahangirpuri, Delhi within the jurisdiction of PS Jahangir Puri, accused Rani was found in possession of 290 gms heroin and as per FSL result diacetylmorphine was found to be contained 1.1 % in said heroin, and it was in contravention of section 21 of NDPS Act and accused Ram Avtar abetted the commission of said offence. A complaint was made against the accused persons. FIR was registered. Investigation was carried out and chargesheet was filed u/s 21 NDPS Act against accused Rani and u/s 29 NDPS Act against accused Ram Avatar. Both accused were summoned and documents were supplied to both accused in compliance of Section 207 CrPC.
2. Thereafter, separate charge was framed U/s 21 NDPS Act against accused Rani and u/s 29 NDPS Act against accused Ram Avtar to which they pleaded not guilty and claimed trial on 02.02.2007.
FIR No. 68/06 State Vs. Rani 2/15
3. Matter was listed for prosecution evidence. Prosecution examined following witnesses :
4. SI Sunil Jain was examined as PW1. He stated that on 01.08.2006, he joined the investigation and at about 3:45 pm a secret informer came to him in PS and told him that one lady namely Rani is involved in supplying of heroine in Delhi and nearby area,today she will come near ingate of BJRM hospital, Jahangir Puri between 5:45 pm to 7: pm to supply heroine to someone, after procuring it form one Ram @ Teli. After verification,he produced him before SHO at about 4 pm, and briefed him with the information. SHO after verification from the secret informer and informed ACP regarding information through telephonically, and directed to conduct a raid. He lodged the secret information in daily dairy vide DD no.13A at 4:15 pm and a copy of the same was produced before SHO as per the provisions of the section 42 NDPS Act Ex.PW1/A. Thereafter he constituted a raiding party consisting of himself, WHC Shiksha and Ct Parveen and brief them about the secret information. The above raiding party alongwith secret informer left the PS vide DD no.14A at about 4:30 pm in Government vehicle car bearing no.DL1CH5839 being driven by HC Abdul Hakim which is Ex.PW1/B. Raiding party reached at the spot near in gate of BJRM hospital at about 5:30 pm via enroute Vikas Marg ring road, Rajghat, Burari chowk and left from Bhalswa Dairy red light.
FIR No. 68/06 State Vs. Rani 3/15 On route he requested 5 public persons to join the raiding party, but they refused after giving reasonable excuse. He briefed the members of the raiding party on the spot and directed HC Abdul Hakim to park the government vehicle inside the BJRM hospital and also directed him to bring the vehicle on the spot at his instance. He alongwith the secret informer and WHC Shiksha took position at the right side of the ingate of BJRM hospital and Ct Parveen took position on other side of the road opposite to gate and the position was taken by 5:40 pm and they started waiting for the accused. At about 610 pm a lady wearing white suit and black colour striped salwar and chappal was seen coming towards the gate of BJRM hospital from the side of the FIRE station and she was holding a black colour polythene in her right hand. The lady was identified as Rani from a distance of about 50 metres by the the secret informer. The lady came near the gate of BJRM hospital and started going back. At about 6:15 pm he with the help of WHC Shiksha apprehended her at the instance of secret informer.
The secret informer left the spot after apprehension. He called for the government vehicle on the spot. On interrogation she revealed her name as Rani Kaur @ Rani W/o Late Sh. Ashok Kumar r/o F3/8, Sector16, Rohini, Delhi aged about 34 years. Witness correctly identified the accused who was present in the court. He also gave the introduction of the raiding party to her and briefed her with the information and also told her about her FIR No. 68/06 State Vs. Rani 4/15 legal rights and also told her search is to be conducted by lady constable while maintaining her modesty as there is possibility of recovery of heroine from her possession. She was also explained regarding meaning of Gazette Officer and Magistrate. Notice u/s 50 NDPS Act was prepared and the carbon copy of the same was given to accused Rani which is Ex.PW1/C. The contents of the notice were read over to the accused and after knowing the contents she refused to avail them and refusal was written by him on original notice on her dictation and she signed on her refusal.
Thereafter he requested 810 public persons who were gathered on the spot to join the investigation but none agreed and left the spot without disclosing their names and address. WHC Shiksha conducted formal search of accused Rani while sitting in the Government vehicle and after search she handed over the black polythene which was recovered from the right hand of the accused during search. When he checked the black transparent polythene tied with rubber band, it was found containing soily colour powder . The recovered soily coloured powder was checked with the field testing kit and was found positive for heroine. The weight of recovered heroine was found to be 290 gm. Two samples of 5 gm each were taken out from the recovered heroine and were put into small transparent and were tired with rubber bands and put into two separate yellow color envelopes, two parcels were prepared which were given mark FIR No. 68/06 State Vs. Rani 5/15 A and B. The remaining heroine in transparent polythene was tied and kept in the same recovered black colour polythene and cloth pullanda was prepared which was given mark C. Form FSL was filled up. He sealed paper parcel marked A and B with his official SKJ with three impression. Seal after use was handed over to WHC Shiksha.
All the seal pullandas and Form FSL were taken into police possesion vide seizure memo Ex.PW1/D. Rukka was prepared Ex.PW1/D and the same was handed over to Ct Parveen for registration of FIR. He also handed over the entire case property alongwith the form FSL and carbon copy of seizure memo to Ct Parveen for handing over to SHO/N/Br. Ct Parveen left the spot at about 9:15 pm in above government vehicle. He alongwith accused Rani Kaur and WHC Shksha remained at the spot. ASI Paramjeet reached at the spot for the further investigation of the case. He handed over original documents to ASI Paramjeet and handed over the custody of the accused and apprised with the facts of the recovery. ASI Paramjeet prepared the site plan at his instance and he recorded the statement of WHC Shiksha on the spot. Accused was arrest vide arrest memo PW1/F. Personal search of accused was conducted Ex.PW1/G. During personal search of accused a carbon copy of notice u/s 50 NDPS Act and a cash of Rs.100/ were recovered. The disclosure statement of accused was recorded vide memo Ex.PW1/H. Accused was produced before SHO. ASI Paramjeet recorded his statement. He prepared special FIR No. 68/06 State Vs. Rani 6/15 report u/s 57 NDPS Act regarding the recovery of heroine and the same was sent to the senior officer. Carbon copy of the report is Ex.PW1/1. Photocopy of disclosure statement of accused Ram Avtar in case FIR no. 71/06 u/s 21 NDPS Act PS N.Br which was handed over to ASI Paramjeet Singh Ex.PW1/J. Witness identified the case property which were Ex.P1 to P3.
5. Ct Parveen was examined as PW2 who joined the raiding party. He stated that on 01.08.2006 he was posted at PS Narcotics Branch. On that day at about 3:45 pm, a secret informer came to SI Sunil Jain and told him that a lady was namely Rani who is involved in supplying of heroine in Delhi and nearby area and on that day she will come near in gate of BJRM hospital, Jahangirpuri, Delhi. He deposed the same line as PW 1 SI Sunil Jain.
6. PW3 HC Satbir. He deposed that on 09.08.2006 he was posted at Narcotic Branch. On that day SI Avinash arranged the raiding party and he also joined the same. On raid the accused Ram Avtar @ Rama was apprehend with one kilo heroine and the FIR no.71/16 was registered u/s 21 NDPS act. Further investigation was handed over to SI Sunil Jain. During investigation accused was arrested and made disclosure statement Ex.PW1/J and in his disclosure accused states that he used to supply heroine to accused Rani. IO recorded his statement.
FIR No. 68/06 State Vs. Rani 7/15
7. ASI Shiksha was examined as PW 4 and she had joined the raiding party. She deposed the same line as PW 1.
8. Ct Rakesh was examined as PW 5. He deposed that on 17.08.2006 he was posted at PS Narcotics Branch and on that day he collected two envelopes which contained the samples and which were duly sealed with the seal of SKJ, FSL form from MHC(M) and went to FSL Rohini through RC no. 93/21/2006. After having deposited the samples, with FSL he returned and deposited the receiving copy of RC with MHC(M). There is no tampering with the samples.
9. ASI Anup Singh was examined as PW 6. He deposed that on 01.08.2006 he was posted at PS Narcotics Branch as Duty officer. He received a rukka from Ct Praveen sent by SI Sunil Jain. On the basis of rukka, he registered FIR Ex.PW6/A and also made endorsement on rukka Ex.PW6/B.
10. SI Avinash was examined as PW 6. He stated that on 09.08.2006 he was posted at PS Narcotic Branch. On that day the accused Ram Avtar @ Rama was apprehended by him and a case FIR no. 71/16 was registered against him. The investigation of this case was handed over to SI Sunil Jain who interrogated the accused Ram Avatar and in during investigation he FIR No. 68/06 State Vs. Rani 8/15 confessed that he used to supply heroine to accused Rani vide vide statement Ex.PW1/J. His statement was recorded ASI Paramjit.
11. SI Rajbir Singh was examined as PW 8. He deposed that on 16.09.2006 he was posted as SI in Narcotic Branch. On that day he came to Rohini court where accused Ram Avatar was produced in the court on production warrant issued by the court. He obtained the permission from the court to formally interrogate the accused Ex.PW8/B and formally arrest the accused Ram Avtar @ Rama vide arrest memo Ex.PW8/A. Accused was sent to JC. He recorded the statement of Ct Hari Kishan. Then he went to PS where he apprised the SHO of all the facts u/s 57 NDPS Act vide report Ex.PW8/C. Witness identify the accused.
12. ASI Hari Krishan was examined as PW 9. He deposed that on 16.09.2006 he was posted in lock up of Rohini Court. On that day he had taken accused Ram Avtar to the court of Sh.O.P. Gupta, Special Judge, NDPS court where IO Rajender Singh was allowed to interrogate the accused for 30 minutes. During interrogation accused Ram Avtar had disclosed that he had given the basis to accused Rani on 01.08.2006. IO recorded the disclosure statement of accused Ram Avtar which is already Ex.PW8/B. IO formally arrested the accused Ram Avtar vide memo already Ex.PW8/A. Witness identified the accused.
FIR No. 68/06 State Vs. Rani 9/15
13. ASI Jagdish Prasad was examined as PW 10. He deposed that on 01.08.2006 he was posted as MHC(M) in Narcotic Branch. On that day SHO Inspector Kharak Singh had deposited two parcels wih the seal of SKJ and one pullanda with the seal of SKJ and I SHO NBR, Delhi one FSL form bearing seal of SKJ and I SHO NBR, Delhi. He made entry in Register no.19. Copy of the same is Ex.PW10/A(OSR). On 17.08.2006, on the instruction of SHO he handed over the sealed pullanda alongwith FSL form to Ct Rakesh Kumar vide RC No. 92/21/6 to be deposited at FSL. Ct Rakesh Kumar returned back and handed over one copy of of receiving of case property at FSL to him. Copy of RC is Ex.PW10/B. Ct Rakesh Kumar had signed the RC.
14. ASI Anil Kumar who was examined as PW 11. He deposed that he have brought the office record of Special report u/s 57 NDPS Act which is already Ex.PW1/J sent by SI Sunil Kumar, special report of NDPS Act sent by SI Rajbir the same were received in the office of DCP office. Copy of diary of ACP office regarding diary no.1758 Ex.PW11/A. He has also brought diary of Office of DCP regarding the report of u/s 57 NDPS Act regarding the seizure of 290 g of heroine and arrest of accused vide entry no.2919 and 2920. Copy of the relevant record is Ex.PW11/B. Copy of DD no.13 A and report u/s 57 NDPS Act is submitted to DCP are Ex.PW11/E and PW.11/F. FIR No. 68/06 State Vs. Rani 10/15
15. In the present case, both accused were admitted the genuineness of FSL report dated 16.10.2006 in their joint statement u/s 294 Cr.P.C.
16. Thereafter, PE was close.
17. Statement of accused was recorded u/s 313 Cr.PC on 10.04.2019. Accused stated that he does not wish to lead any defence evidence in this case.
18. Thereafter, the matter was fixed for final arguments.
19. Final arguments were advanced by both the parties.
20. The case of the prosecution is that on 01.08.2006 at about 6:15 pm, near ingate, Babu Jagjivan Ram Memorial Hospital, Jahangirpuri, Delhi accused Rani was found in possession of 290 gms heroin and she was arrested in the present case. It is further stated by the Prosecution that accused no.2 Ram Avtar had abetted the offence as he had supplied the heroine to the accused no.1 Rani.
In order to prove the case, prosecution has examined eleven witnesses in this case. In the present case, a heroine amounting to 290 gms had been recovered from the possession of accused no.1. A notice u/s FIR No. 68/06 State Vs. Rani 11/15 50 was given to the accused no.1 stating that her search can be conducted in the presence of Gazette Officer and Magistrate but she refused. The law regarding the search of the accused before the magistrate and Gazetted officer as per section of 50 NDPS has been explained her in Hon'ble Delhi High Court in judgment titled as " Sumit Rai @ Subodh Rai vs State CRL.A. 578/2017 dated 29 July, 2019" as follows:
" 12. The question that arises, then, is whether, once the appellant had refused the offer of having his search, and the search of the bags in his possession, conducted by a Magistrate or a Gazetted Officer, the I/O was justified in proceeding to conduct the search of the appellant and his bags himself.
13. On this aspect, Arif Khan (supra) marks a radical change, in the jurisprudence relating to Section 50 of the NDPS Act. The facts of the said case strikingly mirror those of the present, and may, therefore, be briefly adverted to. Pursuant to receipt of secret information, a raiding party was constituted, which spotted the appellant Arif Khan approaching, and intercepted him. On being questioned, he admitted being in possession of charas. He was informed of his right to have his search conducted by a Gazetted Officer or a Magistrate, to which he responded that he had faith on the raiding police party and consented to be searched by them. After having obtained the said consent, in writing, the raiding police party searched the accused, resulting in seizure of charas, weighing 2.5 kg, from his body. Arif Khan was, accordingly, prosecuted for commission of the offence punishable under Section 20 of the NDPS Act. The prosecution resulted in conviction, by order dated 9th November, 2004, of the learned ASJ. An appeal, preferred thereagainst, was dismissed by the High Court of Uttarakhand. Arif Khan appeal further, to the Supreme Court.
14. The principal contention advanced, by learned counsel appearing for Arif Khan before the Supreme Court, was that FIR No. 68/06 State Vs. Rani 12/15 there had been violation of Section 50 of the NDPS Act, inasmuch as the search of Arif Khan had not been conducted in accordance with the said provision. Reliance was placed, for the said purpose, on the judgment of the Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC
609. It was contended that the search/recovery of the alleged contraband from Arif Khan ought to have been made only in the presence of either a Magistrate or a Gazetted Officer. The response of the prosecution has been recorded, in para 26 of the judgment, in the following words:
It is the case of the prosecution and which found acceptance by the two Courts below that since the appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling him about his legal right available to him under Section 50 in relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party), the two Courts below came to a conclusion that the requirements of Section 50 stood fully fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act.
15. The Supreme Court proceeds, in paras 27 to 31 of the judgment, to hold thus:
27. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband Charas does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons.
28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband Charas was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding FIR No. 68/06 State Vs. Rani 13/15 party, who recovered the contraband Charas from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband Charas as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.
29. Though, the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer.
30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband(Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.
31. In the light of the foregoing discussion, the appeal succeeds and is allowed.
Impugned judgment is set aside. As a consequence thereof, the appellants conviction is set aside and he is acquitted of the charges in question. (Emphasis supplied)"
Perusal of the above said judgment reveals that section 50 NDPS is mandatory and search is to be conduct in the presence of Magistrate or FIR No. 68/06 State Vs. Rani 14/15 Gazetted Officer. Accused can refuse her search to be conducted in the presence of Magistrate or Gazette Officer but in that case the refusal should also be recorded in the presence of Magistrate or Gazetted Officer. Perusal of file reveals accused was not produced before Magistrate or Gazette Office. More over no member of the raiding party was Gazetted Officer in the case. Hence recovery of banned substance is inadmissible as search was not in compliance of section 50 NDPS Act. Hence there is no evidence against accused no.1 in the present case.
As mentioned above recovery has been held inadmissible therefore, offence alleged against accused no.2 is also not made out. Moreover, there is only confession of accused no.2 which is also not admissible piece of evidence. I am of the considered view that the prosecution has failed to prove the guilt of both accused beyond reasonable doubt. Accordingly, the both accused are acquitted from the charges leveled against them.
File be consigned to Record Room after due compliance.Digitally signed
ARUN by ARUN GOEL
Date:
GOEL 2019.09.11
14:34:45 +0530
Announced in open court (ARUN GOEL)
on 9th Day of September 2019 MM7/North District
Rohini Courts, Delhi
FIR No. 68/06 State Vs. Rani 15/15