Delhi District Court
State vs . Shamsher Singh @ Krishan on 3 July, 2008
IN THE COURT OF Ms. ANU MALHOTRA, ASJ / SPECIAL JUDGE (NDPS)
PATIALA HOUSE COURTS, NEW DELHI
Date of Institution:29.05.2004
Judgment reserved on :24.04.2008
Date of pronouncement :03.07.2008
FIR 27/04
P.S. Narcotics Branch
U/s. 21 of the NDPS. Act, 1985
State Vs. Shamsher Singh @ Krishan
S/o. Avtar Singh
R/o. Sabun Godown, Chander Lok,
Behind Railway Line,
Shiv Hari Mandir Colony,
Meerut, U.P.
JUDGMENT:-
This judgment shall dispose of the allegations levelled against the accused Shamsher Singh @ Krishan S/o. Avtar Singh in the police report U/s. 173 of the Cr.P.C.,1973, filed by the State on 29.05.2004 qua the alleged commission of an offence punishable U/s. 21 of the NDPS Act, 1985.
The accused in the instant case is charged with having allegedly been found in possession of 1 Kg of herion in contravention of the provisions of Section 8 of the NDPS Act, 1985 and is thus alleged to have committed an offence punishable U/s. 21 (c) of the NDPS Act, 1985 qua which the charge of allegations was framed against the accused on 26.07.2004, to which the accused had pleaded not guilty and claimed trial.
As per the prosecution version set forth in the police report U/s. 173 of the Cr.P.C., 1973, on 15.04.2004 at 11.30 a.m., when SI Bhoop Singh was present at the PS Narcotics Branch , a secret informer came to him and gave him information that a person named Shamsher Singh @ Krishan R/o.
1Meerut, U.P., who used to bring herion from Meerut to U.P. and used to supply the same in Delhi, would that day at about 1.00 p.m. in front of the Coffee Home at the Baba Kharak Singh Marg supply herion in a large quantity to someone and that if a raid was conducted immediately, then that person could be apprehended with herion. The said SI Bhoop Singh, thereafter is stated to have given this information to the then SHO PS Nr. Branch, Inspector Prem Singh Hudda and he also produced the secret informer before the SHO. As per the prosecution version, the SHO made inquiries from the secret informer and satisfied himself qua the secret information received and thereafter telephonically informed the ACP/ N&CP Sh. Mehar Singh of the secret information received at his office and the said ACP / N&CP directed the immediate conducting of a raid and taking of proper legal action. SI Bhoop Singh is stated to have thereafter recorded the DD entry No. 19 at 12.05 p.m. qua the secret information and a copy of the same was given by SI Bhoop Singh to the SHO, PS Narcotics Branch to be forwarded to the Senior Officers for necessary action.
It has been further stated in the police report that the SHO then directed SI Bhoop Singh to form a raiding party and the raiding party was thus formed by SI Bhoop Singh comprising of the SI himself, HC Ashwani Kumar, No. 146 DRP, HC Mohinder Singh No. 123 Crime, HC Yudh Veer Singh No. 251 DRP, Ct. Rajbir Singh No. 248 Crime and Ct. Rajbir Singh No. 314 DRP. The raiding party is stated to have then left the police station at 12.15 p.m. along with the secret informer for the alleged spot in the Government vehicle bearing NO. DL 1V 3570 driven by driver Ct. Tavender Singh along with the field testing kit, electronic weighing scales and the IO bag vide DD entry No. 20 recorded at 12.15 p.m. and the raiding party then reached near the Coffee Home, Connaught Place at about 12.30 p.m. and the Government vehicle was parked on one side and the driver of the vehicle, Ct. Tavender Singh was deputed on the same.
As per the prosecution version, the Investigating Officer asked four passersby to join the raiding party after apprising them of the secret 2 information received, but they all expressed their inability to join the proceedings and left without giving their names and addresses whereupon the Investigating Officer briefed the staff in detail and deputed the raiding party within a radius of 50 metres from the Coffee Home. As per the rukka Ex.PW4/D which forms the basis of the FIR, SI Bhoop Singh, HC Ashwani Kumar, Ct. Rajbir SIngh No. 248 Crime and the secret informer stood near the Coffee Home gate and the remaining staff was scattered around and the raiding party started waiting for the person Shamsher Singh @ Krishan to reach the spot.
It has further been stated in the police report that around 1.00 p.m., a person carrying a khaki coloured heavy bag with handles which he was carrying in his left hand, came from the side of the Shivaji Stadium Bus Terminal and stood in front of the Coffee Home, Connaught Place and on seeing him, the secret informer identified the said person as being that very Sham Sher Singh @ Krishan whereupon the Investigating Officer along with his staff surrounded that person and apprehended him and on inquiries, the name of that person was learnt to be Shamsher Singh @ Krishan S/o. Avtar Singh R/o. Sabun Godown, Chander Lok, near Hapur Railway Line, Shiv Hari Mandir Colony, Meerut, U.P. aged 20 years.
It has been further stated in the police report that the Investigating Officer gave his introduction and that of the entire raiding party to the person apprehended and informed him that there was secret information with them that he used to bring herion from Meerut and used to supply the same at Delhi and that even that day, he had brought herion to be supplied in a large quantity to someone and that there was a likelihood of recovery of herion from him qua which his search had to be conducted and that it was his legal right that if he so desired, he could get his search conducted before a Gazetted Officer or a Magistrate whose presence could be arranged and that if the accused wanted, he could also conduct the search of the Investigating Officer and his team before his search was conducted.
It has been further stated in the police report that the Investigating 3 Officer then gave the accused a written notice U/s. 50 of the NDPS Act, 1985 which was read over and explained to the accused, but the accused declined to avail of his rights of search before a Gazetted Officer or a Magistrate and declined to conduct the search of any member of the police party before his search was conducted and the accused thereafter wrote the said refusal to avail of such legal rights himself on the original copy of the notice U/s. 50 of the NDPS Act, 1985 and signed on the same in Hindi.
As per the police report, before conducting any further proceedings, the Investigating Officer is stated to have then again apprised four passersby of the circumstances and requested them to join the proceedings, but they all declined to do so and left expressing their inability to join the proceedings. Thereafter, the Investigating Officer is stated to have conducted the search of the accused and on his search being conducted, from the khaki coloured cloth bag held in the left hand of the accused, on checking of the same, it was found to contain within it a green coloured heavy polythene packet which on opening was found to contain a white coloured transparent polythene packet, the mouth of which was tied with a rubber band, which within it was found to contain a brown coloured powder which on checking on the field testing kit, was found to be herion.
It has further been stated in the police report that the said transparent packet along with its herion content was weighed on the electronic weighing scales and was found to weigh 1 Kg, and from the same two samples of five gms of herion each were separated and put into two separate small polythene packets, the mouths of which were tied with rubber bands and the small polythene packets containing the samples were then put into two light yellow paper envelopes, the mouths of which were pasted with gum and the two said paper envelope pullandas were marked A and B and the remaining 990 gms of herion continued to remain in that very polythene packet in which it was recovered and the mouth of the same was tied with the rubber band and that transparent polythene packet with its contents of 990 gms of herion was put back into the green coloured polythene packet and the same was then put 4 back into the recovered khaki coloured cloth bag and that khaki coloured cloth bag with its contents was put into a big light yellow paper envelope and the mouth of the same was pasted with gum and a paper envelope pullanda was prepared and given mark C qua the recovery effected and the FSL form filled in.
It has further been stated in the police report that on all the three pullandas marked A, B and C which were recovered, the Investigating Officer put three seals of his official seal of 4A PS NB DELHI and put one such seal on the FSL Form and the seal after use was handed over by him to HC Ashwani Kumar.
It has further been stated in the police report that thereafter, the Investigating Officer seized the three sealed paper envelopes marked A, B and C and the FSL form bearing the seals vide a seizure memo and thereafter, wrote the rukka in Hindi and sent the rukka through Ct. Rajbir Singh, No. 248 Crime to the PS for registration of the FIR and also handed over the three paper parcels and the FSL form bearing the seal and the carbon copy of the seizure memo to the said Ct. Rajbir Singh No. 248 Crime to be taken to the PS for proceedings U/s. 55 of the NDPS Act, 1985 which Ct. Rajbir Singh No. 248 Crime took to the police station in the Government vehicle bearing No. DL 1V 3570 driven by Ct. Tavender Singh. As per the prosecution version SI Bhoop Singh and the remaining party and the accused continued to remain at the spot.
As per the police report, Ct. Rajbir Singh produced the three sealed parcels and the FSL form bearing the seals of the Investigating Officer and the carbon copy of the seizure memo before the SHO for compliance of proceedings U/s. 55 of the NDPS Act, 1985 and the SHO then affixed his official seal of 1 SHO NBR Delhi, one each on all the three parcels and on the FSL form and the SHO under his supervision got the entry qua deposit of the case property in the register No. 19 made qua which DD entry No. 32 dated 15.04.2004 was recorded at 3.45 p.m. to that effect.
It has further been stated in the police report, that as per the directions 5 of the SHO, the further investigation of the case was entrusted to SI Kuldeep Singh who, on the pointing out of the SI Bhoop Singh prepared the site plan and recorded the statement of Ct. Rajbir Singh No. 248 Crime U/s. 161 of the Cr. P.C, 1973, and on finding sufficient grounds for arrest, arrested the accused and conducted his personal search from which a carbon copy of the notice U/s. 50 of the NDPS Act, 1985, and Rs.120/- in cash were recovered and a personal search memo to that effect was prepared and the arrest memo was also prepared.
As per the prosecution version, SI Kuldeep Singh then telephonically informed the brother of the accused named Sunder on number 09897330135 and made in depth inquiries from the accused and then recorded the disclosure statement of the accused in which the accused disclosed that he was addicted to consuming smack and in order to bear the expenses of this addiction, he used to supply smack for his aunt (mausi) named Asha and for each trip he used to receive Rs.5,000/- / Rs.10,000/-.
As per the police report, SI Kuldeep Singh recorded the statements of the other witnesses. It has further been stated in the police report that both the Investigating Officers i.e. SI Bhoop Singh and SI Kuldeep Singh submitted their respective reports U/s. 57 of the NDPS Act, 1985 each i.e. qua the recovery of herion and qua the arrest of the accused respectively to the SHO and the same were then sent to the Senior Officers.
It has further been stated in the police report that during the course of the investigation, SI Bhoop SIngh sought the police remand of the accused for one day to search the source of supply and at the pointing out of the accused, the Investigating Officer conducted the house search of the House No. 7, Chander Lok, Sabun Godown, near Hapur Railway Line, Shiv Hari Mandir Colony, Meerut, U.P., but there was no incriminating substance recovered therefrom and that the stated aunt (mausi) Asha was not at the house and a person, her mother Smt. Ramkali present was given a notice U/s. 67 of the NDPS Act, 1985 by SI Bhoop Singh and Asha was directed to be present at the police station on 19.04.2004 at 10.00 a.m, but Asha did not 6 appear.
As per the police report, it was mentioned that thus further investigation U/s. 173 (8) of the Cr.P.C., 1973 would be continued against Asha. During the course of investigation, as per the police report U/s 173 of the Cr. P. C. 1973, SI Kuldeep Singh, on the directions of the SHO, sent parcel mark A with the FSL form for chemical analysis to FSL, Rohini through HC Gyan Prakash vide certificate No. 76/21 on 26.04.2004, qua which the report on the chemical analysis had yet to be received till when the police report was filed. After the institution of the police report U/s. 173 of the Cr.P.C., 1973, the FSL result was filed on 20.07.2004.
As per the police report U/s. 173 of the Cr.P.C., 1973, 9 witnesses were cited and they have been examined by the State in the instant case.
Three witnesses examined by the State as recovery witnesses are : -
1. PW1 HC Ashwani Kumar,
2. PW3 Ct. Rajbir Singh No. 248 Crime, and
3. PW7 SI Bhoop Singh, the initial Investigating Officer of the case.
Other witnesses examined by the State are : -
1. PW8 examined was Inspector P.S. Hudda, the then SHO PS Nr. Branch on the date of the alleged occurrence i.e. 15.04.2004
2. PW 5 examined by the State was HC Roshan Lal, the then MHC(M) PS Nr. Branch on the dates 15.04.2004, 26.04.2004 and 15.07.2004
3. PW4 examined was HC Omkar Singh, the Duty Officer at the PS Nr. Branch on 15.04.2004
4. PW2 examined was HC Gyan Prakash No. 19 DRP, the sample depositor.
5. PW 6 examined was HC Ved Prakash, SO to the DCP Nr. Branch
6. PW9 examined was SI Kuldeep Singh, the second Investigating Officer of the case.
The accused in his statement U/s. 313 of the Cr.P.C., 1973 denied the incriminating evidence lead against him and denied that he declined to avail of his legal rights of search before a Gazetted Officer or a Magistrate or to 7 conduct the search of the members of the raiding party before his search was conducted and also denied that any notice U/s. 50 of the NDPS Act, 1985 Ex PW1/A was issued to him on which he wrote his refusal in his own handwriting with his signatures thereon. The accused, however, stated that the police had made him write something at the Police Station and that he did not recall what he was made to write. The accused, however admitted that the portions Z to Z1 with signatures at point B i.e. Ex PW1/A were in his writing, but stated that he had been made to write and sign the same, by the police at the Police Station when the police was beating him. The accused also categorically denied that on his search being conducted and on checking of the khaki coloured cloth bag held in his left hand, it was found to contain a green coloured polythene bag, which was found to contain a transparent polythene packet containing a brown coloured powder, which on testing on the field testing kit by the Investigating Officer was found to be herion, which on weighing on the electronic weighing scales was found to be one kilogram and rather stated that he had no bag and no herion and that he does not know what is herion and does not even know what smack is. In reply to a specific Court query qua the existence of the signatures of the accused at Ex PW1/B, the seizure memo, qua seizure of herion from the accused from which two samples of 5 gms each were drawn from the recovered herion and put into two separate small polythene packets and which had been sealed with the seal of 4A PS NB DELHI and the remaining herion had been put into cloth packet and sealed with the same seal, the accused stated that he did not know how many times he had signed, but stated that there was no herion recovered from him and stated that he had only learned now what herion was. The accused, however, admitted his signatures on the seizure memo Ex PW1/B at point C thereon. The accused, however, denied that the said signatures at point C on Ex PW1/B, the seizure memo were put by him at the spot. Inter alia the accused stated that he did not reside at Delhi and that he did not even know the place from where he had been stated to be 8 apprehended i.e. Connaught Place and did not know where Connaught Place was and stated that he was brought by 10/12 police personnel from Meerut. The accused further stated that he did not want to lead any evidence in defence.
Arguments were addressed on behalf of the State by the Ld. Addl. PP for the State, Ms. Satvinder Kaur and on behalf of the accused by his Ld. Counsel Sh. Rakesh Kumar.
On behalf of the State, it has been contended that the prosecution version stands wholly established through the testimonies of nine prosecution witnesses put forth in the witness box by the State. On behalf of the accused it was contended by the Ld. Counsel for the accused that the testimonies of the prosecution witnesses were inconsistent as regards the place of the apprehension of the accused and that there was no public witness joined in the proceedings despite the allegations levelled against the accused that he was apprehended in a public place, in front of the Coffee Home, Connaught Place, where apparently large number of persons would have been available. It was inter alia also submitted on behalf of the accused that the testimonies of PW1 and PW3 indicated that there was no phone call made to any senior officer by SI Bhoop Singh to call the senior official at the spot.
9It was also submitted on behalf of the accused that the testimonies of PW1 and PW3 gave different sizes of the IO's kit which rendered their testimonies doubtful. It was also submitted on behalf of the accused that though SI Kuldeep Singh testified to the effect that he was on leave on 16.04.2004, the report U/s. 57 of the NDPS Act, 1985 of SI Kuldeep Singh was dated 16.04.2004 which also cast a doubt on the veracity of the prosecution version. It was, further, submitted on behalf of the accused that there were discrepancies in the testimonies of PW 1 and PW 3, as to where their statements were recorded. It was also submitted on behalf of the accused that there was nothing in the prosecution version to indicate where Rs.120/- allegedly recovered from the accused in his personal search was placed.
On behalf of the State, however, it was contended that the discrepancies in the testimonies of the prosecution witnesses were not qua any material facts and that the discrepancies in the testimonies were only due to the lapse of time which did not affect the veracity of the prosecution version, which it was contended on behalf of the State stood wholly established.
PW 1 HC Ashwani Kumar in his testimony corroborated the averments made in the police report U/s 173 of the Cr. P.C, 1973 in toto and inter alia testified to the effect that the raiding party was formed at 12.10 pm comprising of himself, HC Yudhvir, HC Mahender, Ct. Rajbir No. 248 Crime and Ct. Rajbir no. 314 Crime and that the Investigating Officer briefed the raiding party and stated that a person named Shamsher Singh @ Krishan, resident of Meerut would come at about 1.00 pm to supply smack in Delhi and would reach opposite the Coffee Home at Baba Kharak Singh Marg and that if a raid was conducted he could be arrested with smack. The averment made in the police report U/s 173 of the Cr. P. C. 1973, to the effect that the raiding party left the police station at 12.15 pm and reached the spot at 12.30 pm is also corroborated. The factum as stated in the police report U/s 173 of 10 the Cr. P. C. 1973 that four passersby were asked to join the raiding party, but declined to do so also stands corroborated by the testimony of HC Ashwani Kumar, PW 1. The testimony of this witness states that a man with a heavy khakhi coloured cloth bag in his left hand came at about 1.00 pm from the direction of Shivaji Stadium Terminal and was apprehended at the instance of the informer after he was surrounded and that the Investigating Officer introduced himself and other members of the raiding party to the accused and apprised him of the secret information received that he had herion with him and had brought the same to supply the same in Delhi and that his search had to be conducted and that it was his legal right to call for any Gazetted Officer or Magistrate for getting his search conducted and that the accused then refused to call for any Gazetted Officer and Magistrate and even refused to conduct the formal search of the Investigating Officer and members of the raiding party, whereupon a written notice U/s 50 of the NDPS Act, 1985 was served upon the accused, i.e Ex. PW 1/A, on which PW 1 stated that he had signed at point X thereon and that the accused also signed on the same at point B and that the accused had also signed at point C on his reply. This witness also corroborated the prosecution version set forth in the police report U/s 173 of the Cr. P. C. 1973 that after the Notice U/s 50 of the NDPS Act, 1985 was issued to the accused before conducting the search of the accused, the Investigating Officer again asked members of the public to join the raiding party, but none of them joined the raiding party and left without giving their names and addresses, whereafter the Investigating Officer took the cloth bag from the left hand of the accused and on checking the same it was found to contain a green coloured polythene bag within which was a transparent polythene bag which contained a brown coloured powder and that the same was tested on the field testing kit and it was found to contain herion and the herion after being weighed along with the transparent polythene was found to weigh 1 kg on the electronic weighing scales, from which two samples of 5 gms each were taken out and both the 11 samples were kept in small polythene packets, the mouths of which were tied with rubber bands and both the sample packets were kept in yellow colour paper envelopes and the mouths of the same were pasted with gum and both the sample pullandas were marked A and B and the remaining herion with the green coloured polythene packet was kept in the same cloth bag in which it was recovered and was then kept in a yellow paper envelope and the mouth of the same was pasted with gum and a separate pullanda prepared, which was given mark C and thereafter the FSL form qua recovery was filled in and all the three pullandas were then sealed with the official seal of 4A PS NB Delhi, i.e three seals each on each of the pullandas and one such seal was affixed on the FSL form by the Investigating Officer, which seal after use was handed over by SI Bhoop Singh to the witness PW 1, i.e. HC Ashwani Kumar and all the three pullandas along with the FSL form were seized by the Investigating Officer vide a seizure memo Ex. PW 1/B. This witness further testified to the effect that thereafter the ruqqa was prepared at 3.00 pm by the Investigating Officer and the same was handed over to Ct. Rajbir No. 248 Crime to be taken to the police station for registration of the FIR along with three parcels and the FSL form and copy of the seizure memo with directions that the case property be handed over to the SHO for proceedings U/s 55 and 58 of the NDPS Act, 1985 and Ct. Rajbir went to the police station in the government vehicle driven by the Constable.
This witness has testified further to the effect that SI Kuldeep Singh and Ct. Rajbir reached the spot in the government vehicle at about 4.30 pm after registration of the case and SI Bhoop Singh produced the accused before SI Kuldeep Singh and handed over the concerned documents to SI Kuldeep Singh and thereafter at the instance of SI Bhoop Singh, the site plan was prepared by SI Kuldeep Singh and at 4.45 pm SI Kuldeep Singh recorded the statement of Ct. Rajbir no. 248 Crime and thereafter at about 5.55 pm the accused was arrested in this case after formal interrogation and 12 his disclosure statement Ex. PW 1/C was recorded on which the witness stated that he had signed and the arrest memo of the accused was also prepared by SI Kuldeep Singh, Ex. PW 1/D also, on which the witness PW1 stated that he had signed and testified to the personal search memo of the accused being Ex. PW 1/E on which too he had stated that he signed.
This witness has further stated that at about 6.40 pm they left the spot for the police station and reached the P.S. Narcotics Branch at about 6.50 pm and thereafter the accused was produced before the SHO, who verified the facts and thereafter the statement of PW 1 was recorded at the police station from 7.55 pm to 8.50 pm. This witness identified the case property, i.e. khaki coloured cloth bag as Ex. P3, green coloured polythene packet as Ex. P4, transparent polythene as Ex. P5, with its contents of herion as Ex. P6 and also the samples pullandas as Ex. P 1 and Ex. P2. The witness also testified to the effect that the entire case property identified by him in the Court was that recovered from the accused, which was also identified by the witness.
On being cross examined on behalf of the accused it was stated by the witness that the accused was apprehended outside the gate of the Coffee Home when he was at a distance of 20 steps from the raiding party. He inter alia stated that he had signed five papers at the spot and stated that he did not know if any telephone call was made to the SHO and neither the SHO or the ACP had reached at the spot and that so long as he remained at the spot there was no telephone call made by any person and that he did not know who was carrying the IO kit and other material, i.e. weighing machine etc., but stated that the field testing kit consisted of certain chemicals which were used to detect the presence of contraband and that the same was of Indian make of
1.¼ feet X 8 inches X 8 inches and during investigation, the IO kit remained in the custody of this witness, PW 1. He testified further on being cross examined that the seal after use was handed over to him at about 2.00 pm and that the seal remained in his custody till the samples were deposited with 13 the FSL and that he did not recall the date when the samples were deposited with the FSL. Inter alia this witness stated that the statement of Ct. Rajbir, No. 248 Crime was recorded in his presence at the spot and that after 15.04.2004 he joined the investigation of this case only qua the return of the seal. This witness stated further that no efforts had been made to join any public witness before reaching the Coffee Home, and neither any shopkeeper, nor any staff of the Coffee Home was called in to join the investigation as public witnesses because of paucity of time. It was also stated by this witness that during his stay at the spot no official from the local police reached the spot and that there was no police beat there and no efforts had been made to join the local police. This witness has categorically denied that he was not present at the time of recovery and denied that there was no recovery effected from the accused and denied that the accused had been picked up from his house and denied that the accused was made to sign on any blank papers under coercion or torture and also denied that all documents were prepared at the police station.
PW 3 Ct. Rajbir corroborated the testimony of PW 1 to the effect that at about 12.10 pm SI Bhoop Singh organized a raiding party comprising of himself Ct. Rajbir No. 248 Crime, HC Yudhvir, HC Mahender, Ct. Rajbir No. 314 Crime and that SI Bhoop Singh briefed the raiding party and told them of the secret information received that the accused Shamsher Singh @ Krishan resident of Meerut would come at about 1.00 pm and that he used to supply smack in Delhi and would reach on the Baba Kharak Singh Marg opposite the Coffee Home and that if a raid was conducted, he could be arrested with smack. The testimony of PW 3 corroborates the testimony of PW 1 and the prosecution version. This witness further stated that the raiding party left the spot at about 12.15 pm in the government gypsy bearing no. DL 1V 3570 and reached the spot at the Coffee Home at 12.30 pm and the Investigating Officer got the vehicle parked at the parking space opposite the Coffee Home and the driver constable was deputed on the same. This witness 14 has further stated that certain public persons were asked to join the search by SI Bhoop Singh but all declined giving their compulsions for not doing so, and that thereafter he himself, SI Bhoop Singh, HC Ashwani and the secret informer stood near the gate of the Coffee Home and other members of the raiding party stood opposite the Coffee Home at a distance of 50 yards and that at about 1.00 pm a person came from the side of Shivaji Stadium Terminal carrying a cloth bag in his hand and the informer pointed out to him, as being the accused Shamsher Singh @ Krishan and that the Investigating Officer and the raiding party surrounded him and then the Investigating Officer introduced himself and the raiding party to the accused and informed the accused of his being suspected of being in possession of smack and the accused was also informed that he had a legal right to get the search conducted in the presence of a Gazetted Officer or a Magistrate and that he had a legal right also to search the members of the raiding party. This witness has further stated that before further proceedings were started four passersby were asked to join the search but none of them joined and testified to the effect that the notice U/s 50 of the NDPS Act, 1985 was then served upon the accused, i.e. Ex. PW 1/A, on which he too signed and testified to the reply of the accused thereon, being in the handwriting of the accused on Ex. PW 1/A with his signatures.
The witness, PW 3, has also corroborated the prosecution version qua the recovery of herion from the cloth bag of the accused held in his left hand within a transparent packet containing a brown coloured substance which was within a green poly bag within the cloth bag. The witness also testified in support of the prosecution version to the effect that the transparent polythene packet with its contents were weighed on the electronic weighing scales and was found to weigh 1 kg and has testified to the effect that the green coloured substance on testing on the field testing kit had been found to be smack. PW 3, Ct. Rajbir also corroborated the prosecution version qua drawing of the two samples of 5 gms each, the preparation of the pullandas 15 marked A, B and C and sealing of all the pullandas by the Investigating Officer with his official seal of 4A PS NB Delhi and the preparation of the FSL form and the affixation of the seal thereon by the Investigating Officer.
This witness testified to the effect that he went to the police station with the ruqqa at 3.00 pm along with three pullandas and the FSL form along with the driver Constable in the government vehicle and reached the police station at about 3.15 pm and handed over the rukka to the Duty Officer and the pullands and the FSL form to the SHO along with the recovery memo and the SHO then called the MHCM for handing over the case property along with the FSL form and the recovery memo and after affixing the stamp and seal of 1 SHO NBR Delhi on the same, the SHO handed over the same to the MHCM. Inter alia the witness identified the accused present in the Court as being the person, who was apprehended at the spot and also stated that at about 4.15 pm he started from the police station and reached the spot at 4.30 pm along with SI Kuldeep Singh in the government vehicle. PW 3 further testified that he had taken the rukka and the copy of the FIR with him. PW 3 testified to SI Kuldeep Singh having taken over the charge of the accused and the documents from SI Bhoop SIngh and testified to the effect that SI Kuldeep Singh then interrogated the accused and prepared the site plan. As per the testimony of PW 3, the accused was arrested at 6.00 pm vide arrest memo Ex. PW 1/D and at about 6.35 pm the entire raiding party left the spot for the police station and reached the police station at 6.55 pm and the accused was handed over to the SHO. This witness also testified to the effect that on 16.04.2004 the accused was taken to his house near the Railway Line, Shiv Hari Colony, Meerut where he pointed out towards his house and the search of his house was conducted and no contraband was recovered from there and Ex. PW 3/A ,the pointing out memo which bears the signatures of the accused and the signatures of the witness was prepared. The house search memo prepared was testified by the witness to be Ex. PW 3/B with his signatures thereon. This witness also identified the case property 16 produced during his testimony during trial as being that recovered from the accused.
On being cross examined by counsel for the accused this witness testified to the effect that his statement was recorded twice by the Investigating Officer in this case and that he remained associated in the investigation from the beginning till the end. It was testified by this witness further that SI Bhoop Singh, HC Mahender and HC Ashwani and probably one more person had gone to Meerut. The witness further stated that they had straight away reached the house of one Asha Mausi of the accused and only met the occupant of the house probably named Ram Kali, an old woman and no one else and some documents were prepared there, which he had signed. PW 3 stated that no public witness had signed those documents and then stated that there were two documents prepared at Meerut. PW 3 denied that he had not gone to the Meerut and declined that he had testified falsely and declined that he had not joined the investigation of this case at all and not signed any documents and denied that it was the other Ct. Rajbir who had joined the investigation after 15.04.2004. Inter alia the witness stated that steps had been taken to verify the name and particular of the person who was found in the house at Meerut but no neighbour had volunteered to join and the lady claimed herself to be Ram Kali and the same was accepted by the police party to be correct. The witness denied that the police party had not gone to the house of Asha The witness, PW 3, further stated that his statement and that of the HC Ashwani were recorded at the spot and that also of SI Bhoop Singh regarding identification of the spot. The witness further testified to the effect that the accused was seen coming from the side of Shivaji Stadium. Inter alia the witness stated that the accused was first seen by the informer and was then gheraoed by the entire raiding party simultaneously. The witness further stated that the team did not wait for the probable recipient to reach. Inter alia the witness denied that he was not a member of the raiding party and that no recovery was made in his presence. The witness further stated that he did not 17 recall from where Rs.120/- was recovered from the accused and did not recall the denomination of the money recovered and stated that he did not recall whether any purse was recovered from the accused. The witness stated that the accused had been taken for medical examination at about 7.00 pm though not in his presence.
PW 7, the initial Investigating Officer of the case SI Bhoop Singh, in his testimony whilst corroborating the prosecution version has testified to the effect that on 15.04.2004 when he was posted at PS Narcotics Branch Kamla Market as a Sub - Inspector at about 11.10 pm, a secret informer came to the police station Narcotics Branch and had given information that one person named Shamsher Singh @ Krishan, who used to supply smack after procuring the same from U. P. that day at 1.00 pm would come to deliver a consignment of herion to someone in front of the Coffee Home Baba Kharak Singh Marg near Connaught Place and if a raid was conducted he could be apprehended with a huge quantity of heroin. PW 7, SI Bhoop SIngh further testified to the effect that he passed this information to the SHO, Inspector Prem Singh Hudda and produced the informer before him in his office and after his satisfaction, he passed this information telephonically to the then ACP Narcotics, Sh. Mehar Chand at his office, who directed the conducting of the raid immediately and that he, SI Bhoop SIngh recorded this information vide DD No. 19, carbon copy of which was Ex. PW 7/A. A perusal of Ex. PW 7/A copy of DD entry no. 19 dated 15.04.2004 placed on the record corroborates the testimony of SI Bhoop SIngh and the prosecution version set forth in the police report U/s 173 of the Cr. P. C. 1973 in toto.
PW 7 further testified to the effect that he formed a raiding party including HC Ashwani Kumar, HC Mahender, HC Yadhuvir, Ct. Rajbir No. 248 crime and Ct. Rajbir No. 314 Crime and along with the secret informer they left the police station in the official vehicle bearing no. DL 1V 3570 driven by Ct. Tevender Singh and that he also obtained the field testing kit, IO kit and electronic weighing scales before leaving the police station and at 18 about 12.30 pm they reached near the Coffee Home Connaught Place and the official vehicle was parked at one side and the driver Ct. Tevender was deputed on the same. The Investigating Officer further stated that he requested four public persons to join the raiding party whilst informing them of the secret information received, but none agreed to join the same and then he briefed the members of the raiding party in detail and they took their positions within a radius of 50 meters near the Coffee Home and that he along with the secret informer, HC Ashwani Kumar and Ct. Rajbir Singh took positions near the main gate of the Coffee Home and other members of the raiding party remained near the other side of the Coffee Home and that the raiding party started waiting for the accused Shamsher Singh @ Krishan and that at about 1.00 pm on the pointing out of the secret informer the Investigating Officer apprehended the accused Shamsher Singh @ Krishan, whose name was learnt on inquiry and that he informed the accused of the secret information received, that the accused used to supply herion and even at that time he could be in possession of herion and that his search was thus to be conducted and that it was the legal right of the accused to give his search before a Gazetted Officer or a Magistrate and that arrangement for their presence could be made. The Investigating Officer also testified to the effect that the accused was informed that it was his legal right that before giving his search to the members of the raiding party, he could conduct the search of the members of the raiding party and also testified to the effect that he prepared a written notice U/s 50 of the NDPS Act, Ex. PW 1/A and that the same had been served upon the accused, who wrote his refusal thereon on the original notice U/s 50 of the NDPS Act, 1985 declining to avail of his legal rights of search before a Gazetted Officer or a Magistrate and also declining to conduct the search of the police party.
SI Bhoop Singh testified to having searched the accused Shamsher Singh @ Krishan and stated that he had also checked the bag which the accused was holding in his left hand, which on opening was found to contain a green coloured polythene bag which further contained a transparent 19 polythene packet the mouth of which was tied with a rubber band and that transparent polythene packet contained a brown coloured powder, which on testing with the field testing kit was found to be herion and that the said brown powder along with the transparent polythene packet was weighed on the electronic weighing scales and it weighed 1 kg, from which two samples of 5 gms each were separated from the recovered herion and put into two small paper envelopes , the mouths of which were tied with rubber bands and were then put into yellow light coloured coloured paper envelopes and that the mouth of the said envelopes were pasted with adhesive and were given marks A and B and that the remaining 990 gms of herion in the same transparent polythene packet was put into the green coloured polythene packet in which it was recovered and then the same was put into that very khaki coloured cloth bag and then the same was put into a paper envelope and the mouth of the same was pasted with adhesive and was given mark C and that then he filled in the FSL form and then he prepared the ruqqa for the registration of the FIR Ex. PW 4/D at the spot, and affixed his official seal of 4A PS NB Delhi, i.e. 3 seals each on the three parcels A, B and C and one seal on the FSL Form and handed over the seal after use to HC Ashwani and seized all the parcels A, B and C and FSL form vide seizure memo Ex. PW 1/B in the presence of HC Ashwani Kumar and Ct. Rajbir, who also signed the same and the accused also signed on the same. PW 7, the initial Investigating Officer also testified to the effect that he prepared the ruqqa for registration of the FIR and handed over the same along with the parcels marked A, B and C and FSL form and copy of the seizure memo to Ct. Rajbir with instructions that he shall produce the ruqqa before the Duty Officer for registration of the FIR and the other articles be produced before the SHO for further necessary proceedings. PW 7, corroborated the prosecution version that at 3.00 pm, Ct. Rajbir left the spot for police station with the said articles in the official vehicle driven by Ct. Tavinder and at about 4.20 pm SI Kuldeep SIngh along with Ct. Rajbir reached the spot in 20 the official vehicle and that he, PW 7, had handed over all the documents prepared by him to the SI Kuldeep Singh and the accused was also produced before him, whereafter SI Kuldeep Singh prepared the site plan at his instance, i.e. of PW 7, SI Bhoop Singh. The initial Investigating Officer also testified to the effect that SI Kuldeep Singh recorded the statement of Ct. Rajbir, No. 248 Crime U/s 161 of the Cr. P. C, 1973 and SI Kuldeep Singh arrested the accused at about 6.00 pm, and that the arrest memo of the accused Ex. PW 1/D was prepared and the personal search of the accused was conducted vide personal search memo Ex. PW 1/E and that he, PW 7 had signed both the said memos.
PW 7 corroborated the statement of PW 1, HC Ashwani Kumar and PW 3 Ct. Rajbir qua interrogation of the accused by SI Kuldeep Singh and testified to Ex. PW 1/C being the disclosure statement of the accused on which PW 7 also signed. PW 7 has further testified to the effect that thereafter all of them along with the accused reached the police station Narcotics Branch and SI Kuldeep SIngh produced the accused before the SHO and recorded the statement of PW 7 U/s 161 of the Cr. P.C., 1973 at the police station.
PW 7 has further testified to Ex. PW 6/A being the special report U/s 57 of the NDPS Act, 1985 prepared by him on 16.04.2004 regarding seizure of 1 kg of herion from the accused and stated that the same was submitted before the SHO for further transmission to the senior officers and thereafter SI Kuldeep Singh proceeded on leave and thereafter the SHO directed him to produce the accused Shamsher Singh @ Krishan before the Court and that he, PW 7 had produced the accused before the Court of the then Special Judge (NDPS) and obtained one day police remand and that then the accused led the police party to the house of Asha, the source of herion from whom the accused used to procure the same and pointed out to the house of Asha at Meerut and that the pointing out memo Ex. PW 3/A was prepared by PW 7 and the same was signed by the accused and Ct. Rajbir. He further testified 21 to the effect that he conducted the search of the house of Asha but no contraband was recovered from the said house and the house search memo Ex. PW 3/B was prepared. PW 7 further testified to the effect that as Asha was not found at the house, they came back to Delhi and the accused was sent to judicial custody.
PW 7 has further testified that thereafter SI Kuldeep Singh resumed his duties after one day leave and he, PW 7 handed over the case file to him. Inter alia, PW 7 identified the case property produced in the Court as being that recovered from the accused and and testified to the seizure memo Ex. PW 1/B, being that vide which all the articles recovered from the accused had been seized.
On being cross examined on behalf of the accused, the initial Investigating officer of the case stated that the secret informer came to him alone and that there was no one else associated him and that when he, PW 7 produced the secret informer before the SHO there was no one present in the office of the SHO and that the SHO informed the ACP in the presence of PW 7. PW 7 further stated during cross examination that the accused came from the side of the emporium and stated that he, PW 7 captured the accused with the help of other police officials and did not join any witnesses amongst the staff of the Coffee Home or its visitors and stated that the writing work was done outside the Coffee Home whilst sitting on the stairs. He, PW 7 stated further that the SHO did not came to the spot and stated that he had informed the SHO telephonically about the apprehension and the recovery from the accused. He, PW 7 has further stated that he had handed over the seal to HC Ashwani Kumar at 2.15 pm after use and stated that the SHO after having gone through the special report U/s 57 of the NDPS Act, 1985 had forwarded the same to the senior police officers. PW 7 has further during cross examination corroborated the prosecution version, that the police party reached the spot of recovery at about 12.30 pm and stated that he, PW 7 with HC Ashwani Kumar, Ct. Rajbir and the secret informer were present in 22 front of the gate of the Coffee Home, which had only one entry. He also stated that the police party reached the PS Narcotics Branch at about 7.00 pm. PW 7 further stated that he had taken back his seal after about 10 days of recovery and denied that he had testified falsely and denied that there was no herion recovered from the possession of the accused.
PW 8, Inspector P. S. Hudda, the then SHO PS Narcotics Branch testified to the effect that on 15.04.2004 at about 11.40 am, SI Bhoop Singh came to his office along with the secret informer and informed him about the secret information received, that one person named Shamsher Singh @ Krishan resident of Meerut who used to supply herion in Delhi, on that day would be coming near the Coffee Home, Connaught Place at about 1.00 pm to supply herion to some unknown person and that he, the SHO, verified the facts to his satisfaction and gave this information to the ACP Narcotics Branch telephonically at his office, who directed the immediate conducting of the raid. PW 8 corroborated further the prosecution version set forth in police report U/s 173 of the Cr. P. C. 1973 to the effect that SI Bhoop Singh lodged DD entry no. 19 at about 12.05 pm regarding the secret information received and produced the copy of the DD entry before him, which he forwarded to the ACP Narcotics and that on his directions SI Bhoop Singh formed the raiding party comprising of himself, HC Ashwani Kumar, HC Mahender, HC Yudhvir, and two Constables named Rajbir and departed from the police station at 12.15 pm in the government vehicle bearing no. DL 1V 3570 driven by driver Ct. Tavender. This witness has further testified that at about 3.20 pm, Ct. Rajbir came to his office and produced three paper envelopes mark A, B and C along with the carbon copy of the seizure memo regarding seizure of herion and the duly filled in FSL form. PW 8 testified that all the parcels and FSL form were sealed with the seal of 4 APS NB Delhi, i.e three seals each on three parcels and one such seal on FSL Form and stated that he wrote FIR No. 27 on all the parcels and FSL form and also affixed his official seal of 1 SHO NBR Delhi on all the three parcels and the 23 FSL form.
PW 8 further testified to the effect that he called HC Roshan Lal, the then MHCM to his office along with register no. 19 and an entry was made by HC Roshan Lal under his supervision, on which he had signed and that he deposited the case property in the maalkhana as per the seizure memo. Inter alia PW 8 testified to the effect that he lodged DD entry No. 32 at about 3.45 pm regarding depositing of the case property and testified to the effect that copy of the same was Ex. PW 8/A. Ex. PW 5/A photocopy of the serial entry no. 398 in register no. 19 dated 15.04.2008 of the PS Narcotics Branch indicates that the deposit of the case property comprised of two yellow paper pullandas marked A, B and C bearing 3 seals each of 4A PS NB Delhi and one seal of 1 SHO NBR Delhi stated to contain 5 - 5 gms each, of herion as samples and one pullanda yellow paper envelope sealed with the 3 seals each of 4 APS NB Delhi and one seal of 1 SHO NBR Delhi stated to contain 990 gms of herion stated to be within a transparent polythene packet marked C and a FSL form bearing one seal of 4 APS NB Delhi and one seal of 1 SHO NBR Delhi on which mark A was mentioned, which were deposited by the SHO Inspector P.S. Hudda with the MHCM qua which DD no 32 at about 3.45 pm was lodged. Ex. PW 5/A is also signed by Inspector P.S. Hudda, as per photocopy on the record.
Ex. PW 8/A, i.e copy of DD no. 32, PS Narcotics Branch at about 3.45 pm states that at 3.20 pm Ct. Rajbir No. 248 Crime had given the carbon copy of the seizure memo along with FSL form and three paper envelopes parcels marked A, B and C and the FSL Form to the SHO, PS Narcotics Branch and that the parcels bear the three seals each of 4 APS NB Delhi and one such seal was there on the FSL form and that he, Inspector P. S. Hudda, the then SHO wrote the FIR No. 27 on the FSL form and also on the parcels and also affixed his official seal of 1 SHO NBR Delhi on the FSL form and all the three parcels and that HC Roshan Lal had made an entry in the register no. 19 under his supervision, on which he, the SHO had put his 24 signatures and that he deposited the case property as per the seizure memo in the maalkhana to be kept in safe custody.
PW 8 further testified to the effect that at about 6.45 pm SI Kuldeep Singh produced the accused Shamsher Singh @ Krishan who was identified by the SHO being the accused present in the Court and after his satisfaction the SHO directed SI Kuldeep Singh to take further necessary action. PW 8 further testified that SI Bhoop Singh and SI Kuldeep Singh produced two reports U/s 57 of the NDPS Act, 1985 qua recovery of herion and the arrest of the accused, carbon copy of which were forwarded by him, PW 8, to the ACP and testified to the effect that the carbon copy of the said reports were Ex. PW 8/B and Ex. PW 8/C, on which he too had signed.
This witness further stated that on 26.04.2004 Parcel A along with the FSL form were sent to the FSL Rohini through HC Gyan Prakash for chemical analysis and so long as the case property remained in his custody, it was not tampered with. Inter alia on being cross examined PW 8, Inspector P.S. Hudda stated that the reports U/s 57 of the NDPS Act, were sent to the senior officers on 16.04.2004 and denied that all the parcels were prepared at the police station and denied that all the proceedings were conducted at the police station and denied that there was no raiding party organized or that no raid was conducted and denied that the accused had been falsely implicated in this case.
PW 4 HC Onkar Singh testified to the effect that on 15.04.2002, he was posted as a Duty Officer at PS Narcotics Branch from 8.00 am to 8.00 pm the next day, and that he received a rukka at about 3.50 pm from SI Bhoop Singh through Ct. Rajbir and on the basis of the same he recorded FIR No. 27/2004 U/s 21 of the NDPS Act, 1985 and testified to Ex. PW 4/A being the carbon copy of the same, on which he stated that he had signed. Inter alia PW 4 testified to Ex. PW 4/B being the copy of the DD entry no. 31 recorded by him qua registration of the FIR and testified to Ex. PW 4/C being the copy of DD entry no. 33. The original DD register was also 25 produced by the witness. Ex. PW 4/A the carbon copy of the FIR indicates that it was registered at 15.04.2004 and it appears that the date stated by the witness as 15.04.2002 of the receipt of the ruqqa is either a typographical error or an inadvertent mistake.
On being cross examined, PW 4 testified to the effect that Ct. Rajbir remained with him for about 2 - 3 minutes and that he had come at 3.15 pm and stated that it was wrongly mentioned in his examination in chief that he had came at 3.50 pm. PW 5 examined by the State was HC Roshan Lal, the then MHCM, PS Narcotics Branch, Kamla Market on 15.04.2004, who testified to the effect that at about 3.00 pm Inspector P.S. Hudda called him to his office along with register no. 19 and had handed over the three pullandas marked A, B and C and the FSL form and carbon copy of the seizure memo and all the parcels bore the seal of 4A PS NB Delhi, bearing three such seals on each of the three pullandas and one seal of 1 SHO NBR Delhi and that there was one such seal of both the seals on the FSL Form, and that he deposited the all the case property in the maalkhana and made the necessary entry at serial no. 398 in register no. 19. PW 5 further stated that at 6.50 pm, SI Kuldeep Singh handed over the jamatalashi of the accused comprising of the carbon copy of the notice U/s 50 of the NDPS Act, 1985 and Rs.120/- in cash, which was also deposited by him, PW 5 in the maalkhana at the same serial entry in the register no. 19.
PW 9 SI Kuldeep Singh, the 2nd Investigating Officer of the case testified to the effect that on 15.04.2004, the investigation of this case, whilst he was posted as a Sub-Inspector at PS Narcotics Branch, was entrusted to him on the directions of the SHO, and at about 4.15 pm along with Ct. Rajbir and driver Constable, they left for the Coffee Home, Baba Kharak Singh Marg in the government vehicle bearing no. DL 1V 3570 and reached there at about 4.30 pm, where SI Bhoop Singh and the accused Shamsher Singh @ Krishan, present in the Court whom the witness identified, along with other 26 staff personnel were present. He further testified that SI Bhoop Singh handed over the original documents prepared, i.e. seizure memo and notice U/s 50 of the NDPS Act, 1985 and stated further that he had prepared the site plan at the pointing out of SI Bhoop Singh and recorded the statement of Ct. Rajbir, No. 248 Crime from 4.45 pm to 5.45 pm and after interrogating the accused, he, PW 9 arrested the accused at about 6.00 pm and conducted his personal search in which cash amounting to Rs.120/- and carbon copy of the notice U/s 50 of the NDPS Act, 1985 was recovered. PW 9 further stated that he also recorded the disclosure statement of the accused and stated that they left the spot for the police station and reached the police station at around 7.00 pm and the accused was then produced before the SHO. This witness stated further that he deposited the personal search articles of the accused in the maalkhana and recorded the statements of the witnesses and that on 16.04.2004 he prepared the special report U/s 57 of the NDPS Act, 1985 qua the arrest of the accused and sent the same to the senior officers through the SHO. PW 9 testified to Ex. PW 9/A being the special report U/s 57 of the NDPS Act, 1985 and testified to Ex. PW 1/D being the arrest memo, Ex. PW 1/E being the personal search memo and Ex. PW 1/C being the disclosure statement of the accused.
On being cross examined this witness stated that HC Ashwani Kumar, HC Mahender, the other Ct. Rajbir and HC Yudhbir Singh were the other police personnel who were there when he reached the spot at 4.30 pm. PW9 further stated that he did not join any public witness in the proceedings on reaching there at the spot, though he admitted that it was a public place. It was further stated by SI Kuldeep Singh that the carbon copy of the notice U/s 50 of the NDPS Act, 1985 was recovered from the pocket of the pant of the accused and that he telephonically informed the brother of the accused Sunder immediately after arrest of the accused and that he made this call from the taxi stand near the spot. He, PW 9 further testified to the effect, that the entire police party returned to the police station in the government 27 vehicle and further stated that apart from the statement of Ct. Rajbir, which was recorded at the spot, the statements of other witnesses were recorded at the police station. This witness further stated that he had been the Investigating officer of the case from the time when the investigation was entrusted to him except that he was on leave on 16.04.2004, on which date SI Bhoop Singh has taken over. He, PW 9 further testified to the effect that SI Bhoop Singh had gone in the search of lady named Asha, whose name was mentioned in the disclosure statement of the accused and that he, PW 9 had not gone in her search and he further stated that he did not attemp to trace out Asha even after he resumed his duties after his leave on 16.04.2004. PW 9, further denied that the accused made no disclosure statement and denied that he had taken signatures of the accused on the blank papers and denied that he had testified falsely.
PW 6, HC Ved Prakash testified to the effect that on 16.04.2004 he was posted as the SO to the DCP Narcotic and on that day he had received two reports, one U/s 50 of the NDPS Act, 1985, i.e. qua the seizure of 1 kg of herion and received the other report U/s 57 qua arrest of the accused from the office of the ACP and that both the reports were put up before the DCP for perusal, who returned the same after perusal after having put his signatures thereon on Ex. PW 6/A and Ex. PW 6/B at points A thereon. This witness on being cross examined stated that he identified the signatures of the DCP as he had worked under him and denied that he had not received any reports and denied that the reports were not put up before the DCP.
PW 5, HC Roshan Lal has testified also in his testimony to the effect that on 26.04.2004 he sent the sample pullanda Mark A along with the FSL form vide road certificate no. 76/21 through HC Gyan Prakash and testified to Ex. PW 5/B being the photocopy of the receipt of the road certificate no. 76/21. This witness further stated that on 15.07.2004 HC Vijender Singh, the then MHCM of the maalkhana had received back the samples along with the result from the FSL Rohini and deposited the same in the maalkhana and 28 made an entry in register no. 19, which HC Vijender Singh had signed and stated that he, PW 5 recognized the signatures of the HC Vijender Singh, as he had seen him writing and signing. Inter alia the witness stated that the entry qua sending the pullandas to the FSL Rohini and receipt of the same were not tampered with and stated that the case property was not tampered with so long it remained in his possession. On being cross examined by counsel for the accused, this witness denied that the entries Ex. PW 5/A in register no. 19 were made subsequently at the instance of the Investigating Officer and denied that the envelopes, which had been produced before him were not sealed and denied that the sealed envelopes had not been deposited with him.
PW 2, HC Gyan Prakash testified to the effect that on 26.04.2004 whilst he was posted at the PS Narcotics Branch on the directions of the SHO and Investigating Officer that day he took the sample pullanda marked A along with the FSL form bearing three seals of 4 APS NB Delhi on the sample pullanda and one such seal on the FSL form and testified also to the effect that the sample pullanda marked A and the FSL form bore one seal each of 1 SHO NBR Delhi and stated that he had taken the same to be deposited at the FSL Rohini vide road certificate no. 76/21 and testified to the effect that he had brought the carbon copy of the receipt. Inter alia the witness denied that the case property had been tampered with by changing the seals.
PW 9, SI Kuldeep Singh in his testimony has testified to the effect that Ex. PW 9/B is the application seeking to place on record the FSL result and testified to Ex. PW 9/C being the chemical analysis report in this case, the exhibition of which being admissible in evidence U/s 293 of the Cr.P. C, 1973 and the exhibition thereof was not opposed on behalf of the accused by counsel Sh. Rajiv Bhardwaj. Ex. PW 9/C placed on record is the FSL result according to which the parcel A, a yellow coloured envelope sealed with the seals of PS/NB 4A DELHI and SHO/N.BR. 1 DELHI, found to contain 29 exhibit A kept in a polythene, which exhibit A was a brown coloured powdered substance stated to be herion having weight approximately 5.7 gm with polythene, which on chemical examination gave positive test qua the presence of diacetylmorphine and on gas chromatography examination was found to contain 17.8% of diacetylmorphine.
On a consideration of the entire available record and rival pleas put forth on behalf of either side, a consistent chain of events as set forth through the prosecution version through the police report U/s 173 of the Cr. P. C. 1973 is brought forth through the testimonies of all the prosecution witnesses. The testimony of SI Bhoop Singh, the initial Investigating Officer of the case establishes the receipt of secret information by him on 15.04.2004 at 11.30 am at the PS Narcotics Branch from the secret informer that a person named Shamsher Singh @ Krishan, resident of Meerut, who dealt in the supply of Herion in Delhi by bringing the same in Delhi, would that day around 1.00 pm come to supply Herion in a large quantity to some person at Connaught Place at the Baba Kharak Singh Marg in front of the Coffee Home. That SI Bhoop Singh informed the SHO, PS Narcotics Branch of the receipt of this secret information and produced the secret informer before him is corroborated through the testimony of PW 8, Inspector P.S. Hudda the then SHO PS Narcotics Branch, who also testified to the effect that he satisfied himself about the secret information received after having made inquiries from the secret informer produced before him by SI Bhoop Singh. Ex. PW 7/A copy of the DD entry no. 19 recorded at 12.05 pm establishes also that the receipt of this secret information was also informed by the SHO, Inspector P.S. Hudda, SHO to the PS Narcotics Branch, to the ACP Narcotics and that the receipt of this secret information was also reduced into writing, which indicates the compliance of Section 42 (2) of the NDPS Act, 1985.
30The testimonies of PW 1, HC Ashwani Kumar, PW 3, Ct. Rajbir, No. 248 Crime, PW 7 SI Bhoop Singh, the initial Investigating Officer of the case are consistent to the effect, that the raiding party, which left the PS Narcotics Branch on 15.04.2004 at 12.15 pm in the government vehicle bearing no. DL 1V 3570 driven by Ct. Tavender Singh reached the spot, opposite the Coffee Home, Baba Kharak Singh Marg, Connaught Place, New Delhi at about 12.30 pm and that the vehicle was parked at a side and four public persons were asked to join the raiding party, but none of them agreed to join the raiding party and left without giving their names and addresses. The testimony of HC Ashwani Kumar explains the reason why no efforts were made by the police party to join the members of the public before reaching the Coffee Home and why the shop owner and proprietor of the Coffee Home was not asked to join as a public witness, in as much as, he, states that there was paucity of time, which stands explained as the raiding party had reached the spot at about 12.30 pm and the person with the alleged contraband was to come at about 1.00 pm. Though at places the words Coffee House is used in place of Coffee Home by the witnesses PW1 and PW3, the same is insignificant, as the venue stands clearly established through the testimonies of the prosecution witnesses.
The testimonies of all the three prosecution witnesses PW 1, PW 3 and PW 7 are consistent to the effect that when the nakabandi was done, SI Bhoop Singh, HC Ashwani Kumar, the secret informer and Ct. Rajbir, No. 248 Crime were on one side near the Coffee Home and the other members of the raiding party, i.e HC Yudhbir, HC Mahender and Ct. Rajbir, No. 314 Crime were deployed on the other side, within an area of 50 yards. The testimonies of PW1, PW 3 and PW 7 are also consistent to the effect that at about 1.00 pm, a person came with a heavy khaki coloured cloth thaila held in his left hand and at the pointing out of the secret informer, the Investigating Officer with the help of all the members of the raiding party apprehended that man whose name on inquiries was learnt to be Shamsher 31 Singh @ Krishan, S/o Sh. Avtar Singh, R/o Shiv Hari Mandir Colony, behind Railway Line, Meerut. The testimonies of all the three witnesses PW1, PW3 and PW7 are consistent qua the identification of the accused being that person Shamsher Singh @ Krishan, S/o Sh. Avtar Singh, who had been apprehended at the spot.
As per the prosecution version set forth in the police report U/s 173 of the Cr. P. C. 1973 the accused came from the direction of the Shivaji Stadium Bus Terminal and stood in front of the Coffee Home. The testimony of PW1, HC Ashwani Kumar is categorical to the effect that the accused came from the side of Shivaji Stadium Bus Terminal with a heavy weight khaki coloured cloth thaila in his left hand. The testimony of PW 3 Ct. Rajbir, No. 248 Crime is also to the effect that at about 1.00 pm a person (who has been identified to be the accused) came from the side of Shivaji Stadium Bus Terminal carrying a cloth thaila in his hand and was pointed out by the secret informer as being Shamsher Singh @ Krishan. The testimony of the initial Investigating Officer, SI Bhoop Singh, PW 7 is to the effect that the accused came from the side of the emporiam. It has been submitted on behalf of the accused that these discrepancies in the statements of PW 1, PW 3 and PW 7 are sufficient to dislodge the veracity of the prosecution version. The testimony of PW 1 and PW 3 are categorical to the effect that the accused came from the direction of the Shivaji Stadium Bus Terminal and that would itself be an indicator that the accused came from the Shivaji Stadium Bus Terminal side as apparently the Bus Terminal of Shivaji Stadium would be near the Shivaji Stadium itself. The emporiam at Connaught Place shown in the site plan placed on the record, from which direction the accused is shown to have come also are shown on the Shivaji Stadium Bus Terminal side. The accused has not chosen to controvert the testimony of SI Kuldeep Singh, the 2nd Investigating Officer of the case qua preparation of the site plan by himself which is placed on the record (though not exhibited apparently inadvertently). Even otherwise the said discrepancy 32 in the testimonies of the PW 1, PW 3 and PW 7 are not material in nature and not sufficient to cast a doubt on the veracity of prosecution version qua the apprehension of the accused in front of the Coffee Home, Baba Kharak Singh Marg, Connaught Place, New Delhi at about 1.00 pm on 15.04.2004 when the said accused was apprehended by the raiding party at the pointing out of the secret informer, when he, the accused was holding a heavy khaki coloured cloth thaila in his left hand.
The testimonies of PW 1, PW 3 and PW 7 also establish that the accused was given an opportunity by the Investigating Officer to seek the presence of a Gazetted Officer or a Magistrate before his search was conducted and that the accused was also given an opportunity to conduct the search of the members of the raiding party before his search was conducted and that the accused was also apprised by the Investigating Officer that these were his legal rights. The testimonies of PW 1, PW 3 and PW 7 also consistently establish that the accused declined to avail of such legal rights of search and that a notice U/s 50 of the NDPS Act, 1985 was served upon the accused, on which he signed and gave his reply on the same declining to avail of such legal rights in his own handwriting and also signed thereon. The accused in his statement U/s 313 of the Cr. P.C. 1973 has admitted that the portion Z to Z 1 on the notice U/s 50 of the NDPS Act, 1985 Ex. PW 1/A are in his handwriting and that the same bears his signatures, though the accused stated that whatever he had written, he had been made to write and sign by the police at the police station when the police was beating him.
Significantly, during the cross examination of PW 1, HC Ashwani Kumar, the suggestion put forth on behalf of the accused inter alia was to the effect that he was made to sign on blank papers under coercion or torture and there has been no suggestion put to this witness to allege or contend that the refusal of the accused to avail of his legal rights of calling a Gazetted Officer or a Magistrate or conducting the search of the 33 police party before his search was conducted were got written from the accused whilst the accused was being beaten.
Furthermore, PW 3, Ct. Rajbir No. 248 Crime has not even been confronted with any such query to controvert the issuance of the notice U/s 50 of the NDPS Act, 1985 and the refusal of the accused to avail of his legal rights thereunder and it has not been disputed through the cross examination of PW 3 on behalf of the accused that the notice Ex. PW 1/A, U/s 50 of the NDPS Act, 1985 had been issued to the accused on which he wrote his refusal to avail of such legal rights of search. Likewise, the testimony of PW 7, SI Bhoop Singh, the initial Investigating Officer of the case qua his testimony to the effect that a written notice U/s 50 of the NDPS Act, 1985, Ex. PW 1/A had been issued to the accused and had been served on the accused on which the accused wrote his refusal to avail his legal rights of search in writing on the original notice U/s 50 of the NDPS Act, 1985 and signed thereon in his own handwriting has not been assailed by the accused. The testimonies of PW 1, PW 3 and PW 7 thus establishes that the provisions of Section 50 of the NDPS Act, 1985 had been complied with by the Investigating Officer before conducting the search of the accused and his belongings.
The testimonies of PW 1, HC Ashwani Kumar and PW 7, SI Bhoop Singh also corroborates the prosecution version qua the aspect that before the search of the accused and the search of his belongings was conducted on issuance of notice U/s 50 of the NDPS Act, 1985, the Investigating officer had made a further attempt to join four passersby, i.e persons of the public to join the proceedings to be conducted, but they refused to join the same.
The testimonies of PW 1, PW 3 and PW 7 are also categorical and consistent to the effect that from the khaki coloured cloth bag held in the left hand of the accused, which was taken by the Investigating Officer, SI Bhoop 34 Singh from the accused, from within the same was taken out a green coloured polythene packet, which within it contained transparent polythene packet the mouth of which was tied with a rubber band, which within it contained a brown coloured powder which was tested on the field testing kit, that the Investigating Officer had brought with him from the police station, and that the same tested positive for herion and it was weighed with the transparent polythene packet in which it was contained on the electronic weighing machine and was found to weigh 1 kg, from which two samples of 5 gms each were taken out and both the samples were kept into two small plastic packets, the mouths of which were tied with rubber bands and both the sample packets were put into yellow coloured paper envelopes and there mouths were also pasted with gum and both the said parcel pullandas were given mark A and B and the remaining herion along with its transparent polythene packet weighed 990 gms along with the green coloured polythene packet kept in the same cloth bag and was put into a big yellow coloured paper envelope, the mouth of which was also pasted with gum and a separate pullanda of the same was prepared, which was marked C. The testimony of PW 1, PW 3 and PW 7 are also consistent to the effect that the FSL form was then filled in by the Investigating Officer qua the recovery of herion and that on all the three parcels SI Bhoop Singh put his official seal of 4A PS NB Delhi, i.e three each on all the three pullandas and one such seal was affixed by him on the FSL form and that the seal after use was handed over to HC Ashwani Kumar and all the three pullandas were seized by the Investigating Officer vide a seizure memo Ex. PW 1/B, on which also the signatures of the accused were taken. The accused in his statement U/s 313 of the Cr.P. C, 1973 has admitted his signatures on the said seizure memo Ex. PW 1/B, but stated that he did not know how many papers he had signed and reiterated that there was no herion recovered from him. The testimonies, however, of PW1, PW 3 and PW 7 are consistent qua the recovery of 1 kg of brown coloured substance containing herion from the accused at the spot on 35 15.04.2004 at about 1.00 pm and suffer from no discrepancy in relation thereto.
The prosecution version set forth in the police report U/s 173 of the Cr. P. C. 1973 is to the effect that the said recovered smack contained in the three parcels marked A, B and C along with the carbon copy of the seizure memo and the FSL Form were sent by the 1st Investigating Officer, SI Bhoop Singh along with the ruqqa through Ct. Rajbir No. 248 Crime to the police station at 3.00 pm in the government vehicle bearing no. DL 1V 3570 driven by Ct. Tavender Singh with directions to Ct. Rajbir to handover the ruqqa to Duty Officer for registration of the FIR and to handover the case property to the SHO for compliance of proceedings U/s 55 and 58 of the NDPS Act, 1985. The testimony of PW 4 HC Onkar Singh, the Duty Officer at the PS Narcotics Branch on 15.04.2004 establishes that Ct. Rajbir reached the PS Narcotics Branch with the ruqqa sent by SI Bhoop Singh at 3.15 pm, on the basis of which he, PW 4 registered the FIR No. 27/04, U/s 21 of the NDPS Act, 1985, carbon copy of which is Ex. PW 4/A and also recorded DD entry no. 31 to that effect, copy of which is Ex. PW 4/B and also recorded DD no. 33, copy of which is Ex. PW 4/C. Ex. PW 4/B copy of the DD entry no. 31 daetd 15.04.2004, PS Narcotics Branch specifies that at 3.15 pm Ct. Rajbir Singh, No. 248 Crime came with the ruqqa in Hindi sent by SI Bhoop Singh in the government gypsy bearing no. DL 1V 3570 driven by Ct. Tavender Singh and handed over the ruqqa to the Duty Officer, on the basis of which the Duty Officer registered the FIR No. 27/04, U/s 21 of the NDPS Act, 1985. Ex. PW 4/C copy of DD entry no. 33 dated 15.04.2004, PS Narcotics Branch recorded by PW 4 is also categorical to the effect that further investigation of this case at 4.15 pm was entrusted by the SHO, PS Narcotics Branch to SI Kuldeep Singh and thus Ct. Rajbir Singh, No. 248 Crime, SI Kuldeep Singh and Ct. Tavender Singh No. 98 DRP left the police station in the government vehicle bearing no. DL 1V 3570 with the original ruqqa and copy of the FIR to the Coffee Home, Baba Kharak Singh Marg, New Delhi.
36This witness has further on being cross examined stated that when Ct. Rajbir has entered the police station he was carrying some pullandas, which he might have handed over to the SHO.
PW 3, Ct. Rajbir has categorically testified to the effect that he left the spot with the ruqqa and the three pullandas and the FSL Form in the government vehicle at 3.00 pm and reached the police station at about 3.15 pm and had handed over the ruqqa to the Duty Officer and the pullandas and the FSL Form to the SHO along with the recovery memo, and that the SHO called the MHCM to his room and handed over the case property to him along with the FSL form and copy of the recovery memo and that the SHO put his stamp and his seal of 1 SHO NBR Delhi on all the three pullandas and on the FSL form and that at about 4.15 pm he, Ct. Rajbir had left the police station along with SI Kuldeep Singh in the government vehicle along with the ruqqa and the copy of the FIR and had reached the spot at 4.30 pm. The testimony of PW 8, Inspector P.S. Hudda, the then SHO PS Narcotics Branch corroborates the prosecution version to the effect that Ct. Rajbir had handed over three paper envelope parcels marked A, B and C and the carbon copy of the seizure memo of the herion and duly filled in FSL form, with all the three pullandas and the FSL Form bearing on them the seals of 4A PS NB Delhi, i.e. three such seals on each of the paper parcels and one such seal on the FSL Form. PW 8 has further testified to the effect that he had written the FIR No. 27 on all the parcels and the FSL form and also affixed his official seal of 1 SHO NBR Delhi on the parcels and the FSL form and corroborated the testimony of PW 3 that he called the MHCM in his office along with register no. 19 and an entry was made by HC Roshan Lal the MHCM under his supervision qua the deposit of the case property in the maalkhana qua which PW 8 also signed in the maalkhana register as has also been brought forth on a perusal of Ex. PW 5/A qua serial entry no. 398 in register no. 19. The testimony of PW 5 HC Roshan Lal, the MHCM PS Nr. Branch on 15.04.2004 also corroborates the testimony of PW 8, that PW8, 37 Inspector P.S. Hudda, the then SHO called him, i.e. PW 5 HC Roshan Lal to his office with the register no. 19 and that PW 8 handed over three sealed pullandas sealed with three seals each of 4A PS NB Delhi and one seal of 1SHO NBR Delhi and an FSL Form bearing one seal each of both the said seals and the carbon copy of the seizure memo, which were deposited by him, i.e. PW5 in the maalkhana, and that he made an entry to that effect in register no. 19 at serial no. 398, qua which PW 8 has also testified to the effect that DD entry no. 32 was recorded to this effect at about 3.45 pm, i.e. Ex. PW 8/A, also corroborates the averments made in Ex. PW 5/A, which is the photocopy of the serial entry no. 398 in the register no. 19. Through the testimonies of PW3, PW 4, PW 5 and PW 8 is thus stands established that PW 3 had reached the PS Narcotics Branch at 3.15 pm and handed over the ruqqa sent by SI Bhoop Singh to PW 4, HC Onkar Singh, who registered the FIR and recorded the DD entry no. 31 to that effect and that PW 3 had then handed over the case property to PW 8, the SHO to deposit the same in the maalkhana and got an entry made to that effect in the maalkhana register no. 19 as brought forth through Ex. PW 5/A at 3.45 pm when the case property was so deposited, qua which Inspector P.S. Hudda, PW 8 also signed at the original serial entry no. 19 as also visible from the photocopy thereof and DD entry no. 32 was also recorded to that effect and it is also established through the testimonies of PW 3, PW 5 and PW 8 that the case property which had been deposited in the maalkhana was deposited in a a sealed condition, i.e. three parcels marked A, B and C bore on them three seals each of 4A PS NB Delhi and one seal each of 1 SHO NBR Delhi and that the FSL form also bore one such seal of both the said seals on it.
The testimony of PW 3, PW 4 read with Ex. PW 4/C i.e copy of DD entry no. 33 recorded at 4.15 pm and the testimony of PW 9, SI Kuldeep Singh establishes that PW 9, SI Kuldeep Singh along with PW 3, Ct. Rajbir Singh left the police station for the Coffee Home, Baba Kharak singh Marg, 38 Connaught Place, i.e. the spot in government vehicle no. DL 1V 3570 where they reached at about 4.30 pm, when PW 3 had taken along with him the copy of the FIR and the original rukka. The testimonies of PW3, Ct. Rajbir, PW 7 SI Bhoop Singh and PW 8, Inspector P. S. Hudda, the then SHO, PS Narcotics Branch and PW 4 HC Onkar Singh and PW 5 HC Roshan Lal, the then MHCM, PS Narcotics Branch thus establishes that the case property seized in the matter was deposited in the police station under the charge of the SHO, PS Narcotics Branch in safe custody in terms of Section 55 of the NDPS Act, 1985.
The testimony of PW 3, PW 9 and PW 1 establishes that SI Kuldeep Singh along with Ct. Rajbir, reached the spot in the official vehicle driven by Ct. Tavender Singh at about 4.30 pm. Though PW 7 SI Kuldeep Singh states that the police party reached the spot at about 4.20 pm, the variation of about 10 minutes through this testimony of PW 7, SI Kuldeep Singh recorded after a lapse of more than a year after the occurrence is not of any material consequence.
The testimonies of PW1, PW3, PW7 and PW9 establish that the accused was produced before SI Kuldeep Singh by PW 7 SI Bhoop Singh and that SI Kuldeep Singh prepared the site plan at the instance of SI Bhoop Singh. The testimonies of PW 1, PW3, PW7 and PW9 are categorical to the effect that the statement of Ct. Rajbir, No. 248 Crime U/s 161 of the Cr.P.C. 1973 was recorded by SI Kuldeep Singh at the spot. Though a submission had been sought to be made on behalf of the accused that there was discrepancy as to where the statement of Ct. Rajbir recorded, a perusal of the entire available record establishes that the entire prosecution version is consistent to the effect that the statement of Ct. Rajbir No. 248 Crime was recorded by SI Kuldeep Singh at the spot from 4.45 pm till about 5.45 pm. The testimony of PW 1, PW 3, PW 7 and PW 9 also establish that thereafter the accused was arrested in the case after his formal interrogation was 39 conducted and that his arrest memo was prepared and the personal search memo was also prepared, in which the carbon copy U/s 50 of the NDPS Act, 1985 was recovered from the accused and Rs. 120/- in cash were also recovered and that thereafter the disclosure statement made by the accused Ex. PW 1/C was recorded. Merely because the witness PW 3, Ct. Rajbir could not recall from where Rs.120/- were recovered from the accused and could not recall the denomination of the money recovered and whether any purse was recovered from the accused or not, the same does not negate the factum of recovery of Rs.120/- on the personal search of the accused and the recovery of the carbon copy of notice U/s 50 of the NDPS Act, 1985 issued to the accused.
A contention was raised on behalf of the accused that the testimonies of PW1 and PW 3 brought forth different sizes of the field testing kit, which cast a doubt on the veracity of prosecution version. It is essential to observe that PW 1, PW 3 and PW 7 have categorically testified to the effect that the field testing kit had been with the Investigating Officer when he left the police station with the aid of which the brown coloured powdered substance was tested and the same had tested positive for herion. PW 1 has stated during the cross examination that the said field testing kit was of Indian make, carried in a bag of size 1.¼ feet X 8 inches X 8 inches. PW 3, Ct. Rajbir had stated in his cross examination that the size of the field testing kit was about 1.5 feet X 3 feet of cream colour. No attempt, however, was made on behalf of the accused to ascertain the size of the field testing kit from the Investigating Officer himself. In any event the size of 1. ¼ feet and 1.5 feet of one dimension is not a material variation and the factum that the brown coloured substance was tested on the field testing kit and detected to be herion has been consistently testified by all the three witnesses PW 1, PW 3 and PW 7 and the discrepancies in the testimony of PW 1 and PW 3 qua the size of the field testing kit does not suffice to negate the prosecution version qua the recovery of the herion from the 40 accused.
The testimonies of PW1, PW 3, PW 7 and PW9 are consistent qua the factum of the accused having made a disclosure statement Ex. PW 1/C qua the source of herion. The testimonies of PW1, PW 3, PW 7 and PW9 also establishes that after the arrest of the accused and after his personal search was conducted and after his disclosure statement was recorded at the spot, the 2nd Investigating Officer of the case SI Kuldeep Singh, PW 9 along with other members of the raiding party and the accused reached the police station at about 7.00 pm when the accused was produced before the SHO, Inspector P.S. Hudda, PW 8. PW 8 has also testified to the effect that the accused was produced before him by SI Kuldeep Singh and states that the accused was produced before him at 6.45 pm. PW 3 states that they reached the police station at 6.55 pm and PW 1 states that they reached the police station at 6.50 pm. The variation of few minutes in the testimonies of these witnesses is of no material consequence.
Both PW 7 and PW 9, i.e. the 1st Investigating Officer SI Bhoop Singh and the 2nd Investigating Officer, SI Kuldeep Singh have respectively testified to their having prepared the special reports U/s 57 of the NDPS Act, 1985 qua seizure of herion and arrest of the accused respectively, which they stated that they put up before the SHO, Inspector P.S. Hudda on 16.04.2004, which were stated to have been so received by Inspector P.S. Hudda, who testified to the effect that he forwarded the same to the ACP Narcotics and testified to Ex. PW 8/B and Ex. PW 8/C respectively being the carbon copy of the special reports U/s 57 of the NDPS Act, 1985, on which he had also put his signatures. The testimony of PW 6 HC Ved Prakash posted as SO to the DCP on 16.04.2004 establishes the receipt of the special reports U/s 57 of the NDPS Act, 1985 qua seizure of 1 kg of herion and arrest of the accused from the office of the ACP Narcotics Branch, which were put up before the DCP Narcotics Sh. Mehar Singh, whose signatures have been identified on Ex. PW 6/A and Ex. PW 6/B by PW 6 HC Ved Prakash. Ex. PW 6/A and 41 Ex. PW 6/B, the original reports U/s 57 of the NDPS Act, 1985 qua seizure of 1 kg of herion and arrest of the accused respectively indicated that they were forwarded vide serial entry no. 1048 SHO/ND dated 16.04.2004 and serial entry no. 1049 SHO/ND dated 16.04.2004 and were thereafter received in the office of the ACP / N&CP vide diary entry nos. 816 and 817 on 16.04.2004. Ex. PW 6/B further indicates that it was received vide diary entry no. 817 at 6.00 pm on 16.04.2004 and also indicates that thereafter it was received in the office of the DCP Narcotics vide diary entry no. 741 on 16.04.2004 itself and Ex. PW 6/A indicates that it was received in the office of the DCP Narcotics vide diary entry no. 740 on 16.04.2004. It is apparent thus that qua the accused from whom the seizure of herion was effected at about 1.00 pm on 15.04.2004, within 48 hours of the said seizure, a full report of all particulars of the said seizure had already been made by SI Bhoop Singh to his immediate official superior and likewise after the arrest of the accused by SI Kuldeep Singh at about 6.00 pm, the special report U/s 57 of the NDPS Act, 1985 qua arrest of the accused had been made by SI Kuldeep Singh within 48 hours to his immediate superior officer and that thus the provisions of Section 57 of the NDPS Act, 1985 had been complied with in toto.
It has been submitted, however, on behalf of the accused that as it was testified by SI Kuldeep Singh that he was on leave on 16.04.2004, Ex. PW 6/B could not have been prepared by him on 16.04.2004. It is undoubtedly true that PW 9 and PW 7 have both stated that SI Kuldeep Singh was on leave on 16.04.2004, but the same does not detract from the factum that Ex. PW 6/B was received in the office of the ACP Narcotics Branch from the office of the SHO PS Narcotics Branch at 6.00 pm and was thereafter received in the office of the DCP Narcotics Branch on 16.04.2004 itself. Thus merely because SI Kuldeep Singh was on leave on 16.04.2004 and did not accompany SI Bhoop Singh for conducting the house search pursuant to 42 the disclosure statement made by the accused, does not suffice to indicate that Section 57 of the NDPS Act, 1985 had not been complied with by him.
The testimonies of PW 7, SI Bhoop Singh and PW 3, Ct. Rajbir No. 248 Crime are categorical to the effect that pursuant to the disclosure statement made by the accused, the accused was taken on one day police custody remand, for conducting the search of the house of Asha, the stated Mausi, the alleged source of herion at Meerut, but she was not found and there was an old lady named Ram Kali, mother of Asha and on the search of the house having been conducted, there was no contraband recovered. Undoubtedly, the testimony of SI Kuldeep Singh during the cross examination states, that he did not attempt to trace out Asha after resuming his duties after availing of leave on 16.04.2004 and thus it is apparent that the 2nd Investigating Officer made no attempt to trace out the source of herion for conducting further proceedings in terms of Section 173 (8) of the Cr.P. C, 1973 as was mentioned in the police report U/s 173 of the Cr. P. C. 1973, - yet the same does not dislodge from the veracity of the testimonies of PW1, PW 3 and PW 7 qua the aspect, that the accused was on the date 15.04.2004 at about 1.00 pm in front of the Coffee Home, Baba Kharak Singh Marg, Connaught Place, New Delhi found in possession of a khaki coloured cloth bag held in his left hand within which there was a green coloured polythene bag which within it contained a transparent polythene bag which within it contained a brown coloured powdered substance which on testing on the field testing kit tested positive for herion and which on having been weighed along with the transparent polythene packet was found to weigh 1 kg of a substance found to contain herion.
The available record thus establishes beyond a reasonable doubt, consistently through the testimonies of all the prosecution witnesses examined, that the accused was on the date 15.04.2004 at about 1.00 pm in front of the Coffee Home, Baba Kharak Singh Marg, Connaught Place, New Delhi found in possession of a khaki coloured cloth bag held 43 in his left hand within which there was a green coloured polythene bag which within it contained a transparent polythene bag which within it contained a brown coloured powdered substance which on testing on the field testing kit tested positive for herion and which on having been weighed along with the transparent polythene packet was found to weigh 1 kg.
PW 9 has further testified to the effect that on 26.04.2004 a sample parcel marked A was sent by him through HC Gyan Prakash to the FSL Rohini, vide road certificate no. 76/21 and after completion of the investigation the challan was prepared and filed in the Court and later on the chemical analysis report was first collected and filed in the Court, Ex. PW 9/C being the chemical analysis result which chemical analysis result has not been disputed on behalf of the accused. The testimony of Inspector P.S. Hudda, PW 8 also establishes that on 26.04.2004, the sample parcel marked A along with the FSL form was sent to the FSL Rohini through HC Gyan Prakash for chemical analysis and PW 8 has further testified to the effect that so long as the case property remained in his custody it was not tampered with. There has been no suggestion put to PW 8 to contend that the case property had in any manner been tampered with.
PW 5 HC Roshan Lal has through his testimony also testified to the effect that on 26.04.2004 he had sent the sample pullanda marked A along with the FSL Form vide road certificate no. 76/21 through the HC Gyan Prakash and stated that an entry regarding sending the pullanda to the FSL Rohini was also mentioned at serial entry no. 398 of register no. 19 and stated further that the case property was not tampered with so long as it remained in his possession. Ex. PW 5/A is the photocopy of the register no. 19 of serial entry no. 398 and Ex. PW 5/B is the photocopy of road certificate no. 76/21 which corroborates the testimonies of PW 8, PW 9 and PW 4, which testimonies are further corroborated by the testimony of PW 2, 44 HC Gyan Prakash, who testified to the effect that on 26.04.2004 when he was posted at the PS Narcotics Branch on the directions of the SHO and the Investigating Officer he had taken the sample pullanda marked A along with the FSL Form and that sample pullanda marked A was sealed with three seals of 4A PS NB Delhi and one seal of 1 SHO NBR Delhi and that the FSL form also bore one such seal of both the said seals, which had been taken by him to the FSL Rohini vide road certificate no. 76/21 and that he had brought the receipt, i.e. carbon copy of the receipt and handed over the same to the MHCM, HC Roshan Lal along with copy of the road certificate. This witness also testified to the effect that the sample pullanda was not tampered with so long as it remained in his possession. This witness has further denied on being cross examined that the case property was tampered with by changing the seals. That the sample pullanda marked A with intact seals of 4A PS NB Delhi and 1 SHO NBR Dellhi was deposited at the FSL Rohini is established on record through the receipt of the road certificate which is on the reverse of Ex. PW 5/B with the FSL No. FSL/2004/C - 0742, on which there are signatures of PW 2 HC Gyan Prakash, No. 19/DRP dated 26.04.2004 and the very said number, i.e. FSL/2004/C - 0742 is mentioned on Ex. PW 9/C, the FSL result dated 02.07.2004 prepared by the Senior Scientific Officer (Chemistry), Forensic Science Laboratory, New Delhi, Ex-officio Chemical Examiner of the Government of National Capital Territory of Delhi. Thus it stands established consistently that the sample pullanda marked A was deposited in an intact condition with the FSL Rohini on 26.04.2004 and Ex. PW 9/C , which has not been challenged on behalf of the accused establishes that the said sample pullanda, which within it contained a brown coloured powdery substance in a transparent polythene packet was found to weigh a total of 5.7 gm and that brown coloured substance on chemical examination and gas chromatography examination was found to contain diacetylmorphine of 17.8 %.
The testimonies of all the prosecution witnesses thus establish the 45 recovery of herion from the accused Shamsher Singh @ Krishan, S/o Sh. Avtar Singh on 15.04.2004 at about 1.00 pm in front of Coffee Home, Baba Kharak Singh Marg, Connaught Place, New Delhi qua which he had no permit and the testimonies of all the prosecution witnesses also establish when read with Ex. PW 9/C, the report of the Chemical Examiner, Dr. Madhulika Sharma, whose report having been prepared in her capacity inter alia as Ex-officio Chemical Examiner of the Government of National Capital Territory of Delhi, per se is admissible in evidence in terms of Section 293 (4) (a) of the Cr.P. C, 1973, that the accused was on 15.04.2004 at about 1.00 pm in front of the Coffee Home, Baba Kharak Singh Marg, Connaught Place, New Delhi found in possession of 178 gms of diacetylmorphine.
As regards the contention of the accused that he has been falsely implicated and that there was no independent witness that has been joined in the proceedings, - all the witnesses PW1, PW 3 and PW 7 have categorically testified to the effect that independent witnesses had been attempted to be joined, but they declined to join the proceedings and PW 1 has further clarified that the proprietor and shop owner of the Coffee Home and visitors within the same could not be joined into the proceedings due to paucity of time. Furthermore, the testimonies of all the prosecution witnesses are consistent and unambiguous and there has been nothing brought forth during the cross examination of the prosecution witnesses to cast any doubt on the veracity of prosecution version, nor is there anything on the record as to why the accused could have been falsely implicated by the police party, who did not even now the accused from before. Significantly, no attempt was even made on behalf of the accused to question Ct. Rajbir on the alleged claim of the accused that he had been picked up from Meerut. Likewise, the accused did not seek to contend even through the testimony of 1st Investigating Officer SI Bhoop Singh, PW 7 that he was allegedly picked up from Meerut.
46PW 1 has categorically denied on being cross examined that the accused was picked up from his home. The testimonies of PW1, PW 3 and PW 7 have thus established that the accused had been apprehended at Delhi at the pointing out of the secret informer on the basis of the secret information received and that on his apprehension, the accused was found in possession of a brown coloured powdery substance weighing 1 kg, which on testing on the field testing kit had given positive result for herion.
There is nothing in the available record to indicate that the accused has been falsely implicated in the case and there is nothing on the record as to why the accused could have been falsely implicated by the police. As laid down by the Hon'ble Supreme Court in the case Kalp Nath Rai Vs. State reported in AIR 1998 Supreme Court 201, there can be no legal proposition laid down that the evidence of police officers, unless supported by independent witnesses is unworthy of acceptance. As laid down by the Hon'ble Supreme Court in the case State of U.P. Vs. Anil Singh, AIR 1988 SC 1998, it has been observed that the public is generally reluctant to come forward to depose before the Court and it is not proper to reject the prosecution version only for want of corroboration by independent witnesses, if the case made out, otherwise too, is acceptable. The verdict of the Hon'ble Supreme Court in the case State of Punjab Vs. Balbir Singh, 1994 (3) SCC 299 also lays down that non-compliance of Section 100 and 165 of the Cr.P. C, 1973 amounts to an irregularity, but it is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official, but as a rule of caution and depending upon the circumstances of the case, the Court looks for independent corroboration and that, this again depends, on the question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions.
47The available record thus through the testimonies of all the prosecution witnesses which are consistent on all material aspects, brings forth the culpable mental state of possession of 1 kg of a brown powdered substance by the accused Shamsher Singh @ Krishan, which contained within it diacetylmorphine, without any permit qua the same, as the evidence on recored establishes the guilt of the accused beyond a reasonable doubt and beyond a pre-preponderance of probability, as the record through the report of the Chemical Examiner Ex. PW 9/C has brought forth that the accused was found in possession of 178 gms of diacetylmorphine, a banned narcotic substance falling within serial entry no. 56 in the Table to Section 2 of the NDPS Act, 1985. In view of the verdict of the Hon'ble Supreme Court in the case Bashir Vs. State of Kerela (2004) 3 SCC 609 which lays down that the sentencing structure under the NDPS Act, 1985 has been rationalized pursuant to the amendment in 2001, and the punishment would vary depending on whether the quantity of the offending material was small quantity, commercial quantity or something in between, and the verdict of the Hon'ble High Court of Delhi in the case Ansar Ahmad & Ors. Vs. State (Government of NCT of Delhi) 2005 A.D. (Cr.) DHC 630, and the verdicts of the Hon'ble High Court of Delhi in the case Mohd. Sayad Vs. Customs 2002 (2) JCC 1293 and in Masum Ali @ Ashu Vs. State (Crl. R. Revp. 195/2004) decided on 07.04.2004, and the verdict of the Hon'ble Supreme Court in the case Ouseph Vs. State of Kerela (2004) 4 SCC 4464 in the quantity of a powder recovered from an accused where the percentage of the narcotic substance is small, then proportionate reduction in the recovery has to be made in order to ascertain in which category of the NDPS Act, 1985 the offence falls, thus, since in the instant case, the recovery was of 1 kg of a brown coloured powder with the content of the diacetylmorphine being 17.8% on the basis of the percentage constituent, the diacetylmorphine recovered from the accused in the instant case held to be 178 gm; and thus the accused Shamsher Singh @ Krishan, S/o Sh. Avtar 48 Singh is convicted for the proved commission of an offence punishable U/s 21 (b) of the NDPS Act, 1985 as the diacetylmorphine recovered from the accused is lesser than the commercial quantity prescribed in the Table to Section 2 of the NDPS Act, 1985, i.e. lesser than 250 gms, but is greater than the small quantity prescribed in the said table of 5 gms.
Announced in the Open Court (ANU MALHOTRA)
today the 3rd day of July, 2008 ASJ / SPECIAL JUDGE (NDPS)
NEW DELHI / 03.07.2008
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