Delhi District Court
Hon'Ble High Court In Sidiqua vs . Narcotics Control on 16 March, 2007
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IN THE COURT OF SH. O.P.GUPTA, ASJ/ROHINI COURTS,
DELHI
SC No.196-06
State
Versus
Mahinder Singh
FIR No.548/01
P.S. Tilak Nagar
U/s 21 NDPS Act
JUDGMENT
1. The accused has been sent to face trial on the allegations that on 10/08/01 SI Kehar Singh, ASI Deshraj , HC Bhagwant, Constable Ashok, Constable Ombir, Constable Dev Kumar were present during the course of patrolling and prevention of crime, in Krishna Park picket. Inspector Rajender Singh SHO, driver Constable Azad Singh and operator Constable Vijaypal met SI Kehar Singh. At about 7 p.m. secret informer told the SHO that one person would come on black colour Yamaha motor cycle no.DL- 4SC 8136 from CRPF camp, Tilak Vihar at about 7.30p.m. and would be having smack. On the instructions of SHO, SI Kehar Singh reduced the information into writing on a 2 paper and sent the same through Constable Ombir Singh to Police Station for getting the same recorded in daily diary register. The SHO telephonically conveyed the information to ACP, Tilak Nagar. 4/5 passers by were apprised about the information and requested to join. All of them expressed their genuine difficulties and left. In the meantime one person named Balwinder Singh s/o Jang Singh agreed to join the raiding party. Nakabandi was done at about 7.20 p.m. After sometime a person came on motor cycle who was wearing light green shirt. He was stopped and told about the information. He was asked if he wanted a Gazetted Officer or Magistrate could be called at the spot. He revealed his name as Mahinder Singh @ Sonu S/o Narain Dass. Notice U/s 50 NDPS Act was given to him. He replied that he did not want his search to be conducted from any officer. ACP Tilak Nagar named P.S. Kushwaha reached the spot. The SHO told the entire facts to him. The ACP introduced himself to the accused. The SI offered his search and the search of raiding party to the accused but the accused refused to take the same. On casual checking of the accused by SI Kehar Singh, some 3 packet type thing was felt inside his shirt towards waist. His shirt was opened and a white plastic polythene was found. On checking, the polythene was found to contain another polythene having brown colour powder which was smack. The same was weighed and it came out to be 500 gms. Out of that 50 gms was separated as sample. The sample was put in a polythene packet and a pulanda was prepared. The remaining smack was put back in the same plastic punny from which it was recovered and pulanda was prepared. Form FSL was filled. The pulandas and form FSL were sealed with the seal of KS. Seal after use was given to Constable Dev Kumar. The SHO also affixed his seal of RS on the pulanda and form FSL. The pulanda and form FSL were taken into possession. The same were handed over to SHO.
2. During investigation the accused was interrogated.
He made a disclosure that few days before he had gone to Tis Hazari Courts to meet his father who was in custody for the last about 1 year in a case of smack. During the course of meeting his father told him that packets of smack were 4 lying on the taand of kitchen of their house no. 57, A block, DDA quarters, Tilak Vihar, New Delhi. Out of those packets the accused should give one packet of ½ kg to Naresh Singh Nandi in Vikaspuri, Delhi on 10/08/01, packet of ½ kg should be given to Rakesh of Navada and packet of ½ kg should given to Vicky of Tilangpur, Kotla. He noted the said facts on a slip which has been seized by the police from him. His father told him that the remaining packets should be allowed to continue lying on the taand and his father would tell him on telephone what to do with the same, according to need. He could point out flat no.57A and get the smack lying on taand recovered. He took the police party to ground floor of said flat which was locked. The accused told that he had already handed over the key of the said flat to the police. The police provided the said key to the accused and the accused opened the flat with the help of said key. The accused took the police to the kitchen of the said flat and produced one big white polythene, from the taand of kitchen on said flat. On checking, the said polythene was containing 21 white plastic polythenes. Each packet was containing brown colour smack. The packets 5 were weighed one by one. Each polythene was found to contain 500 gms smack. 50 gms. smack was taken as sample from each polythene and put in separate packets. The remaining smack was put in the same polythene and tied with a thread, pulandas were prepared which were given sl. no. 1 to 21. The sample pulandas were also given sl. no. 1 to 21. The packets of remaining smack and sample were sealed with the seal of RPA. Form FSL was filled. Seal after use was given to public witness Balwinder Singh. The pulandas and form FSL were taken into possession and handed over to SHO who sealed the same with his seal of RS.
3. Statements of witnesses were recorded. Report U/s.
57 NDPS Act was sent. Papers of ownership of the flat were taken into possession. Samples were sent to FSL. Result dt.12/10/01 was received which show that the sample gave positive test for diacetylmorphine. Challan was filed.
4. Copies were supplied. A prima-facie for offence U/s 21 NDPS Act was found. Charge was framed to which the 6 accused pleaded not guilty.
5. During the course of trial the accused applied for sending of second sample to FSL for determining percentage of diacetylmorphine. The same was allowed and report dt.05/01/05 was received. On 25/4/06 it revealed that due to inadvertance charge has been framed in respect of initial recovery of 500gms. only. So amended charge for 11 kg. smack including the remaining smack got recovered by the accused from his house was framed. The accused pleaded not guilty but refused to sign the amended charge. Anyhow he did not want to recall the PWs who had already been cross-examined by that time as he was aware of the case since beginning and was in custody since 10/08/01.
6. In order to bring home the guilt of the accused, the prosecution has examined 16 witnesses. PW1 Mr. Neelam Malhotra, Principal of Goodwill Public School produced the record pertaining to admission of the accused according to which the date of birth is 01.07.83.
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7. PW2 Sardar Balwinder Singh is the public witness of recovery. He deposed that probably on 10/07/01 or 10/08/01 he was going towards Gurunanakpura through outer ring road for his work. At about 7.10 p.m. when he reached near CRPF camp, he met SHO Inspector Rajinder Singh, SI Kehar Singh and one Constable with other police staff. SI Kehar Singh informed him about the secret information and asked him to join. He agreed to join. Accused present in court was seen coming from the side of Tilak Vihar, going towards CRPF Camp. He was apprehended and told that if he knew any Gazetted Officer or Magistrate, police could call him. The accused refused for the same. ACP P.K. Khushwaha reached there. The SHO told about the matter to ACP and directed SI Kehar Singh to take search of the accused. The accused was searched and from green colour shirt worn by him, a packet was taken out. In that packet there was another packet which when opened was found to contain brown colour powder. The same was weighed and found to be 500 gms. 50 gms. was taken out as sample and both were converted into parcels. The same were sealed with the seal of Kehar Singh. SHO 8 put his seal. Constable Dev Kumar Thapar was sent to Police Station, the motor cycle of the accused was sent to Police Station with Dev Kumar Thapa. He signed certain documents but he did not know the nature of those documents. He could identify the case property. From the spot accused took them to his flat at Tilak Vihar which was locked from outside and the key of the flat was recovered in his possession. The accused took them to the kitchen of that flat and from the top shelf, the accused took out smack in various white polythenes. Each packet was weighed separately and each packet was of 500gms and was containing brown colour powder. All the pulandas were sealed in separate parcels but he did not remember if the samples were taken out from those parcels or not. The pulandas were sealed with the seal of Inspector Rajender Singh. Seal was not given to him by Inspector Rajender Singh. The witness identified smack as Ex.P1, polythene as Ex.P2, white cloth as Ex.P3, sample as Ex.P4, polythene of sample as Ex.P5 and cloth of sample as Ex.P6, another smack as Ex.P7/1, polythene Ex.P7/2 and white cloth as Ex.P7/3. The smack of parcels no.2 to 21 have been proved 9 as Ex.P28/1 to Ex.P48/2. Polythenes as Ex.P28/2 to Ex.P48/2, clothes of sample as Ex.P28/3 to Ex.P48/3. He identified the motor cycle as Ex.P49, keys and keyring as Ex.P50.
8. In cross-examination by Ld.APP he admitted that notice U/s 50 NDPS Act was served upon the accused and the accused refused to call Gazetted Officer or Magistrate at the time of his search. He also admitted that ACP Sh. P.K. Khushwaha introduced herself to the accused, SI Kehar Singh offered search of raiding party and search of himself before taking search of the accused but the accused refused to exercise the option. He admitted that one FSL form was filled after recovery of smack from the shirt of the accused. He could not say if seal of KS was put on both the parcels and FSL form. He admitted that SI Kehar Singh handed over his seal to Constable Dev Kumar after use, SHO also put is seal of RS on both the parcels and FSL form. He did not remember if paper mark X was produced by the accused during interrogation but seizure memo of the said paper Ex.PW2/B bears his signatures. He did not 10 remember if the accused told police that he was going to deliver same to Narender Singh at Vikas Puri. Motor cycle of the accused was taken into possession vide seizure memo Ex.PW2/C, key was taken into possession vide memo Ex.PW2/D, disclosure of accused was recorded which is Ex.PW2/E, the parcels were taken into possession vide memo Ex.PW2/F and Ex.PW2/G, personal search of the accused was conducted vide memo Ex.PW2/H. He had forgotten to mention the said facts due to lapse of time.
9. In cross-examination by Counsel for the accused he stated that flat where he went along with the police was in populated area. He did not know how many police officers were in uniform and how many were not in uniform.
10. PW3 Charanjeet Singh record keeper Transport Authority proved copy of RC of motor cycle recovered from the accused which is in the name of mother of the accused, as Ex.PW3/A.
11. PW4 HC Dev Kumar is one of the police witnesses of 11 recovery. He proved notice U/s 50 NDPS Act as Ex.PW4/A and fully supported the prosecution. In cross-examination he stated that he returned the seal to the IO after 3-4 days. IO had brought the weighing scale but he did not remember where from the IO brought the same. He denied that he was not member of the raiding party and for that reason he had not signed documents.
12. PW5 Constable Ombir Singh took writing about secret information which is Ex.PW5/A. PW6 HC Balkishan took 22 sample parcels which were sealed, along with 2 FSL forms to FSL Malviya Nagar vide RC no.152/21. One of the sealed parcel and form FSL was having seals of KS and RS and 21 sample parcels and other form FSL were having seals of RPA and RS. He stated that so long as the parcels and form FSL remained in his possession, nobody tampered with the same.
13. PW7 Constable Pappu proved copy of DD no.19 regarding departure of SI Kehar Singh and another staff as Ex.PW7/A. 12
14. PW 8 ACP P.S. Khushwaha stated that he signed the secret information in Police Station when the same was shown to him by duty officer. He proved the refusal of the accused to take search of the police team as Ex.PW2/DA. He made statement similar to that of PW 2 and PW4. He also proved copy of notice U/s 50 NDPS Act recovered in personal search of the accused as Ex.PW8/B. In cross- examination he stated that notice U/s 50 NDPS Act has already been given to the accused before he reached the spot. One public witness was present when he reached on the spot whose name was Balwinder Singh. No neighbourer was called to join the investigation since the flat where accused took them was not habitated and other flats were unoccupied.
15. PW9 HC Surender Kumar was posted as mohrar record in Police Station Rajouri Garden. He handed over copy of index of another case FIR no.804/2000 U/s 21 NDPS Act against the father of the accused. He proved copies of FIR of that case and index as Ex.PW9/A and 13 Ex.PW9/B.
16. PW10 HC Jagdish Prasad is mohrar malkhana. He proved the copy of entry regarding deposit of pulandas and FSL forms as Ex.PW10/A, copy of entry regarding deposit of motor cycle, one key and personal search as Ex.PW10/B, copy of road certificate as Ex.PW10/C, copy of receipt by FSL on the back of road certificate as Ex.PW10/D.
17. PW11 HC Ranbir Singh duty officer has proved copy of FIR as Ex.PW11/A, endorsement on rukka regarding registration of FIR as Ex.PW11/B, copy of DD no.27A regarding registration of FIR Ex.PW11/C.
18. PW12 Ramesh Chander from the office of Dy. Commissioner Revenue, West proved copy of registered GPA, flat no. 57 A in the name of mother of the accused as Ex.PW12/A, copy of registered Will as Ex.PW12/B.
19. PW13 Inspector Rajender Prasad is second IO. He proved site-plan as Ex.PW13/A, slip seized from the 14 accused Ex.PW13/B, arrest memo of the accused as Ex.PW13/C, site-plan of flat of the accused as Ex.PW13/D, report of MLO regarding proof of ownership of motor cycle as Ex.PW13/E, seizure memo of papers of flat as Ex.PW13/F. In cross-examination he admitted that he did not mention in the seizure memo of the motor cycle that key of the motor cycle was seized. However, he denied that he did not mention the same since there was no key of motor cycle or that the motor cycle was not seized at the spot or that the motor cycle was brought from the house of the accused. People were not residing in the house nearby the said flat. No public person from adjoining area was requested by him before recovery. He denied that he got the slip written from the accused, after reaching the Police Station.
20. PW14 SI Kehar Singh is initial IO. He proved refusal of the accused to call Gazetted Officer or Magistrate as Ex.PW14/A, rukka as Ex.PW14/B. In cross-examination he stated that all the members of the raiding party were in uniform. Weighing scale was with him in his bag. 15
21. PW15 Inspector Rajender Singh was SHO at the relevant time. He made statement similar to other police witnesses. He proved copy of DD no.32 regarding deposit of the property in the malkhana as Ex.PW15/A. In cross- examination he stated that he did not remember whether the accused was wearing helmet. It is not necessary that police had challaned him under traffic rules if he was not wearing helmet. It was not necessary to take into possession the helmet worn by the accused. He has not attached in the police file or with report U/s 173 Cr.P.C., copies of log book.
22. PW16 Dr. Madhulika Sharma, Asstt. Director from FSL, Rohini proved the second report about percentage of diacetylmorphine as Ex.PW16/A, original report as Ex.PW16/B.
23. In his statement U/s 313 Cr.P.C. the accused denied that public witness Balwinder Singh joined the raiding party or that notice U/s 50 NDPS Act was given to him. He 16 denied that ACP P.S. Khushwaha reached the spot or that SI Kehar Singh offered his search to the accused. He denied recovery of packet from the back side of his shirt. He denied that he took the police to flat at Tilak Vihar which was locked from outside or that the key of the said flat was recovered from his possession or that he took out smack in 21 white colour polythenes. He denied other aspects of the case. He expressed ignorance about sending of sample parcel and FSL forms to FSL, Malviya Nagar or departure entry of the police officers or deposit of case property in malkhana. According to him PWs have deposed falsely being police officers. He pleaded innocence and stated that he did not want to lead DE.
24. I have gone through the material on record and heard the arguments. Ld. APP has submitted that police witnesses namely PW4, PW8, PW13, PW14 and PW15 have consistently deposed about the recovery of smack from the accused. Nothing material has come in their cross- examination to shake their testimony. Simply because they are police officers is no ground to disbelieve them. This is 17 more so when the public witness PW2 has corroborated the statement of police witnesses. So according to him the prosecution has proved its case beyond doubt.
25. On the other hand Counsel for the accused submitted that it is most weak case. According to him undisputedly the police officers were in uniform. In this background he wanted to urge that none would invite death by putting himself in fire. According to him the accused would have taken a back turn on seeing the police in uniform, if he had any contraband in his possession. In other words according to him the accused would not have landed in the police net. I have given my due thought to the arguments and am unable to pursuade myself with the argument. There is no hard and fast rule as to how a person would behave on seeing the police. It is one's own courage i.e. to what extent he dares to face the police. After all people do commit crime in the presence of the police.
26. The Counsel for the accused vehemently argued that according to police the accused came driving motor cycle 18 which was taken into possession. If that is so, the police should have seized the key of the motor cycle also. But that is not the case. Neither the seizure memo shows recovery of key nor the key of the motor cycle has been produced or proved in the court. The argument is not impressive. The Counsel for the accused asked PW 13 about the key of the motor cycle and he replied that he did not mention the same in the seizure memo but he did not say that no key was recovered. Everyone has own his way of working. Someone may prefer to record the things minutely whereas the other may prefer to write the important facts only.
27. The Counsel for the accused emphasised that papers of flats proved by the prosecution as Ex.PW12/A and Ex.PW12/B bear date of 08/11/2000 which is 3 months after the arrest of father of the accused in another case of Police Station Rajouri Garden. On the basis of this he wanted me to hold that story of the prosecution regarding father of the accused telling the accused that he had concealed smack in said flat is demolished. Consequently, the story of the prosecution regarding accused making any 19 disclosure in that regard or getting any recovery effected is falsified. The argument appears to be deceptive. Neither agreement to sell has been seized nor the GPA or the Will recite about the possession of the flat being given to the mother of the accused simultaneous with execution of documents Ex.PW12/A and Ex.PW12/B. It is just possible that the possession of the said flat was already with the family of the accused and the GPA and Will were executed later on. In that event it is well possible that the father of the accused concealed the smack in that flat before execution of documents Ex.PW12/A and Ex.PW12/B.
28. Another bone of contention of the Counsel for the accused is that the accused was not in exclusive possession of the flat from where second recovery has been effected. The argument is to be mentioned for being rejected only. The said flat was locked from outside and the keys of the same were recovered from the accused, it is no short of exclusive possession of flat by the accused.
29. The Counsel for the accused strenuously argued that 20 police did not make any effort to verify the facts allegedly disclosed by the accused viz the father of the accused telling the accused to supply one packet of smack of half kg. to Naresh Singh Nandi in Vikaspuri, Delhi on 10/08/01, packet of ½ kg should be given to Rakesh of Navada and packet of ½ kg should given to Vicky of Tilangpur, Kotla. The police did not contact the said persons and did not make enquir as to whether they had any dealing with the accused or his father. According to him it is a serious lacuna in the case of the prosecution. I do not agree. Those witnesses are not witnesses of recovery. They were not material witnesses. Enquiry from them would not have served any purpose.
30. Regarding PW2 Counsel for the accused has submitted that said witness has been cross-examined by Ld.APP and so the said witness is hostile. He went on to urge that statement of said witness can not be relied upon. Even in cross-examination by Ld. APP he stated that he did not remember if he told the police that accused was going to deliver the smack to Naresh Singh at Vikas Puri. The 21 argument is without any merit. PW has supported the prosecution on all material particulars. Simply because he forgot some minute details which he had admitted in cross- examination by Ld. APP, does not make him a hostile witness. At this juncture I may observe that I have the privilege of going through the latest judgment by our own Hon'ble High Court in Sidiqua V/s. Narcotics Control Bureau 137 (2007) DLT 500 in which it was held that it is not expected from an independent witness to remember each and everything about the case when he appears in witness box, if material details given by him support prosecution case and witness does not remember some of the things, he is not hostile witness.
31. As regards failure to file log book of vehicle it may be observed that same has nothing to do with court case. The log book is maintained for keeping account of petrol consumed and nothing more.
32. The Counsel for the accused urged that SI Kehar Singh handed over his seal to Constable Dev Kumar after 22 use and not to public witness. Inspector Rajender Singh SHO did not hand over his seal to anyone at all. The same is fatal as per decision in Mohd. Salim V/s. State 1997 Drugs Cases 283. The Ld. APP refuted the said argument by submitting that PW 13 Inspector Rajender Prasad handed over his seal to public witness Balwinder Singh. He further contended that handing over seal to a third person is not necessary, what to say of handing over seal to independent witness. Again the arguments advanced by the Ld. APP appears well founded in view of latest decision of our own Hon'ble High Court in Sidiqua V/s. NCB(supra) wherein it was held that there is no provision under NDPS Act for handing over seal by IO after use to some independent witness. IO has to do investigation day out and day in, in several cases. It is not that after every recovery, new seal has to be got prepared by IO and old seal is to be discarded.
33. The Counsel for the accused relied upon Eze Val okeke V/s NCB 116 (2005) DLT 399 to make out that when prosecution fails to connect the accused with the premises 23 in question and there is possibility of tampering with the recovery of article during period it remained with investigation agency, the accused is entitled to acquittal. The same is not applicable to the case in hand. Here the person taking the sample has deposed that so long as the sample parcels remained in his possession same were not tampered with. Moreover, the report of FSL shows that the parcels tallied with the specimen seal. That is enough.
34. Reliance on Sanjay Kumar V/s. State 103 (2003) DLT 126 is unfounded. In that case notice purported to be served U/s 50 NDPS Act was found not to have been served upon the accused and due care was not taken with respect to filling up of CFSL form. So benefit of doubt was given to the accused. In the present case notice U/s 50 NDPS Act was not required for second recovery from the house as the same is not from the person of the accused. For this reference with advantage may be made to State of Himachal Pradesh V/s. Pawan Kumar 2005 (2) Apex Decision Criminal 301 SC.
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35. Prem Singh V/s State 87 (2007) DLT 709 is an authority for the preposition that in case of omission to send CFSL form along with sample for analysis to laboratory benefit of doubt should be given to the accused. In the present case CFSL from has been sent along with the sample.
36. The last submissions of the Counsel for the accused that the sample were sent to FSL after about one month is fatal. The recovery was effected on 10/08/01 whereas samples were sent on 10/09/01. The argument is not tenable in view of decision in 1979 (4) SCC 746 were it was held that when laboratory found sample fit for analysis, no benefit of delay can be given to the accused. In para 7 of decision in Anil Kumar V/s. State reported as 1996 (3) JT 120 it was held that though there were 15 days delay in sending the contraband to Ballistic expert but report showed parcels to be intact. The person taking sample deposed that no tampering was done. The same was found sufficient for convicting the accused.
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37. In the end I may add that the defence of the accused is quite vague. He has not come forward with any plea as to why he has been implicated. It is not his suggestion to any of the PW that the police was enemical to him or that public witness Balwinder Singh had any motive in deposing against him. The recovery is quite heavy and the same can not be believed to have been planted upon the accused.
38. As an upshot of the above discussion, I have no hesitation to hold that the prosecution has proved its case beyond reasonable doubt. The accused is convicted U/s 21 NDPS Act.
Announced in the Open Court (O.P.GUPTA)
On 16.03.07 ASJ/ROHINI COURTS
DELHI.