Delhi District Court
Officials. As In Karamjit Singh vs State ( Air 2003 Sc 1311) on 27 May, 2016
1
IN THE COURT OF MS SHAIL JAIN: SPECIAL JUDGE:
NDPS: 02: CENTRAL DISTRICT: TIS HAZARI :
DELHI
SC NO. 42/13
STATE
versus
Kishan Pal @ Ballar
s/o Sh Ram Bali
r/o H. No. 202, Gali No. 5
New Kardam Puri, Delhi
FIR No. : 43/13
Offence U/S : 9A/25A NDPS Act
Police Station : Crime Branch
DATE OF INSTITUTION: 03/05/2013
DATE OF JUDGMENT:27/05/2016
JUDGMENT
1. As per prosecution case, on 08/03/2013 at about 2.15 p.m near Ingate Gandhi Maidan, Chandni Chowk, Delhi accused Kishan Pal @ Ballar found in conscious possession of 20 kg of Pseudo Ephedrine substance in contravention of order under section 9A NDPS Act. The accused was 1 2 arrested and after completion of investigation, the charge sheet was filed.
2. Accused was charged for the offense u/s 25A read with section 9A NDPS Act, to which accused pleaded not guilty and claimed trial.
3. Prosecution had examined 10 witnesses in all to prove the case against the accused. The substance of the prosecution evidence is as follows:
4. PW1 HC Azad Singh has deposed that on 08/03/2011, on the basis of the rukka, he has registered FIR of present case. He has proved the copy of the same as Ex.PW1/A.
5. PW2 HC Jag Narain has deposed that on 08.03.2013 SHO Crime Branch Inspector Padam Singh Rana called him in his office along with register no. 19 and handed over to him three pulandas mark A, B and C along with FSL form, seal 7A PSNB Delhi and PSR and carbon copy of seizure memo. pulandas and FSL form were having the seal of 7A PSNB Delhi and PSR. He deposited above mentioned articles in the Malkhana and made entry at Sl No. 1634 in 2 3 register no. 19. Inspector Padam Singh Rana put his signatures in the register no. 19. In the intervening night of 08/09.3.2013 at about 12.50 a.m ASI Rajbir arrived at the malkhana and deposited personal search article of accused Kishan Pal. On 14.03.2013 as per the instructions of SHO, he handed over pulanda mark A in sealed condition along with FSL form/Forwarding letter to Ct Sunny RC no. 83/21/13 for depositing the same at FSL, Rohini. After depositing the pulanda and documents Ct Sunny returned to him one copy of RC along with copy of acknowledgment of FSL. On 11.06.2013 Ct Satender Pal deposited one parcel sealed with the seal of FSL and result of FSL. pulanda was deposited in the malkhana and result was handed over to the IO and entry was made in this regard in register no. 19. Copy of register no. 19, RC and acknowledgment of FSL are respectively Ex.P2/A, Ex.PW2/B and Ex.PW2/C.
6. PW3 ASI Om Parkash has deposed that on 08.03.13, DD number 20 dt. 08.03.2013 received in the ACP office 3 4 duly forwarded by Inspector Narcotics cell recorded by SI Satyavan. Copy of the relevant entry is Ex. PW3/A. Same was put up before the ACP Sh. Zile Singh, he signed the same. Copy of DD entry no. 20 is Ex. PW3/B. On 09.03.13 two special reports u/s 57 NDPS Act duly forwarded by Inspector Narcotics Cell , Delhi was received in office vide diary no. 605 and 606 dated 09.03.2013. One report was regarding the seizure of 20kgs of pseudo ephedrine and the other was in respect to the arrest of accused. Same were put up before ACP Mr. Zile Singh. After going through the same, ACP signed the same. Both these reports are Ex. PW3/C and Ex. PW3/D respectively.
7. PW4 HC Bharat Singh & PW6 HC Om Prakash were the members of the raiding party. They have deposed in detail about the recovery of contraband from the possession of accused persons.
8. PW5 Ct Shani Kumar has deposed that on 14/03/2013 he collected one sealed parcel, FSL form and other documents from MHCM and deposited the same at FSL 4 5 Rohini vide RC no 83/21/13. After depositing the case property, he gave acknowledgment of FSL, Rohini to the MHCM.
9. PW7 Inspector Vivek Pathak has deposed that on 08.03.2013, SI Satyavan along with informer came to his office and informed that one Kishan Pal is indulged in supply of pseudoephedrine in Delhi after procuring the same from medicine dealer of Bhagirath Palace. He further informed that on that date also he will come between 2 to 2.30 p.m at ingate Gandhi Maidan, Chandni Chowk to deliver consignment of pseudoephedrine to somebody. If raid is conducted, he can be apprehended with contraband. He made inquiry from the informer and after satisfying himself, he informed ACP Sh Zile Singh, who ordered to conduct the raid and take legal action. SI Satyavan lodged DD no. 20 . On his directions SI Satyavan constituted a raiding party comprising of himself & HC Om Parkash, HC Bharat Bhatti. SI Satyavan along with raiding team and informer left for spot vide DD no 21 at 1.15 p.m. 5 6 On next day ie 09/3/13 at about 2 am, ASI Rajbir came to his office with accused Kishan Pal. On the same day SI Satyavan produced a special report u/s 57 NDPS Act regarding seizure of 20 kg of pseudoephedrine which he forwarded to ACP, N & CP. On that date ASI Rajbir also produced special report u/s 57 NDPS Act regarding arrest of accused Kishan Pal which he forwarded to ACP, N & CP.
10. PW8 Inspector Padam Singh has deposed that on 08/03/2013, HC Bharat Singh came to his office and produced 3 sealed parcel, carbon copy of seizure memo and FSL form duly sealed with the seal of 7APSNB DELHI. He checked the same and affixed his seal of PSR on the same. After obtaining the FIR no. from the duty officer, he mentioned the same on the case property. He called MHCM and handed over the case property to him. He put his signatures in register no. 19. On 14/03/2013, Ct Shani was sent to FSL to deposit the case property.
11. PW9 SI Rajveer Singh has deposed that on 08.03.2013 further investigation was assigned to him. He lodged DD 6 7 no. 35 in this regard. True copy of the same is Ex.PW9/A. He along with HC Satbir reached at the spot where SI Satyawan and HC Om Parkash met him. First IO SI Satyawan produced accused and the documents before him. He had prepared site plan at the instance of First IO, which is Ex.PW9/B. He interrogated accused Kishan Pal @ Ballar and arrested him vide memo Ex.PW6/B. Thereafter he conducted personal search of the accused vide memo Ex.PW6/C. He interrogated accused and recorded his disclosure statement (Ex.PW6/A). He deposited the personal search article of the accused with the Malkhana Mohrar. Thereafter, he produced accused before Inspector Vivek Pathak, who made inquiries from the accused and interrogated him and he was satisfied with the arrest of the accused. He prepared special report u/s 57 NDPS Act (Ex.PW3/D) and produced the same before Inspector Vivek Pathak. During the course of investigation, he had collected the notification regarding controlled substance, same is Ex.PW9/D. On 14.03.2013, the exhibits were sent to 7 8 FSL through Ct Shani Kumar. After completion of investigation, the challan was prepared. Later on FSL result was also collected, which was placed on record. The FSL result is now Ex.PX .
12. PW10 Inspector Satyawan has deposed that on 08.03.13 , one secret informer came to his office and informed him that one person namely Kishan Pal @ Bhaller, r/o Kardam Puri , Delhi, who used to work in Bhagirath place medicine market would come at Ingate Gandhi maidan, Chandni Chowk in between 22.30 pm to supply pseudo ephedrine and if raid is conducted, he can be arrested. Thereafter at about 12.45PM, he produced the secret informer before Inspector Vivek Pathak, who inquired from him and after he was satisfied , he conveyed the information to ACP Zile Singh, who directed him to take further necessary action. Thereafter, he constituted a raiding party consisting of himself, HC OmPrakash and HC Bharat Singh. At about 1.15 pm all the police official started from Narcotic cell, Shakarpur alongwith secret 8 9 informer in a govt. vehicle bearing no. DL1CM4228 being driven by HC Satyabir , vide DD no. 21 vide Ex. PW10/A. On the way, he had requested 45 public persons to join the investigation but they did not join the raiding party and went away from there by telling their personal difficulty. He directed HC Satyabir to park the vehicle towards Chandni chowk at a distance of 3035 from the in gate of Gandhi Maidan. They had taken position near Ingate Gandhi Maidan.
13. Witness has further deposed that at about 2.05 pm one person was found coming from Chandni chowk side having a white colour plastic bag on his shoulder. He kept the bag on the ground and started waiting for someone. The secret informer pointed towards that person as Kishan Pal and thereafter the secret informer left the spot. At about 2.15 pm that person lifted the plastic bag and started walking from there. Accused was apprehended and on inquiry his name revealed as Kishan Pal @ Bhaller. He introduced himself and other members of raiding party before the 9 10 accused and stated that he has secret information regarding availability of pseudo ephedrine with the accused. He informed accused regarding his legal right to the effect that if he wishes then some gazetted officer or Magistrate can be called at the spot to take his search in their presence. Accused was also informed regarding his legal right that he can take the search of police official and also the search of official vehicle before his search is taken. Accused refused for the same. Thereafter he prepared notice u/s 50 NDPS Act. The notice is Ex.PW4/A. The reply of accused is Ex.PW4/B. Thereafter he checked the plastic bag. He untied the bag and it was found containing a transparent polythene, tied with the plastic sutli. He untied the same and it was found containing white colour powder. He checked the powder by field testing kit and it came to be pseudo ephedrine substance. Thereafter he weighed the plastic bag containing the substance and it came to be 20 kg of pseudo ephedrine substance. Thereafter he had taken out two sample of 100gm each of 10 11 pseudo ephedrine substance, kept the same in two separate transparent polythene tied with rubber band and thereafter both the samples were kept in two separate cloth parcel and these parcels were given Mark A and B. The remaining pseudo ephedrine substance was kept in the same transparent polythene and then kept in the same plastic bag and it was tied with sutli and it was given Mark C. Thereafter, he prepared form FSL at the spot. He affixed his seal i.e. 7APSNB Delhi on two cloth parcel, on the plastic bag and also on the FSL form. The seal after use was given to HC Om Prakash. He has taken the case property in his possession vide seizure memo Ex.PW4/C. Thereafter he prepared tehrir (Ex. PW10/B) and gave the same to HC Bharat Singh for getting the case registered. He had also handed over all the three parcels duly sealed, FSL form and carbon copy of seizure memo to HC Bharat Singh and directed him to hand over the same to the SHO. At about 5.45 pm HC Bharat Singh alongwith driver HC Satbir left the spot in the aforesaid govt. vehicle . At about 11 12 9.45PM , second IO ASI Rajbir Singh came back at the spot in the same government. He produced the documents and the accused before the second IO. Second IO prepared site plan at his instance, which is Ex. PW9/B. Thereafter , accused was arrested by IO vide arrest memo Ex. PW6/B. IO conducted personal search of the accused vide memo Ex. PW6/C. IO interrogated accused and recorded his disclosure statement (Ex. PW6/A). Second IO deposited personal search articles of the accused with MHC(M). Thereafter, accused was produced before Inspector Vivek Pathak, who inquired the accused. He prepared report u/s 57 NDPS Act (Ex. PW3/C) and produced the same before Inspector Vivek Pathak.
14. Statement of accused was recorded u/s 313 CrPC wherein the entire incriminating evidence has been put forth and explained to the accused to which he pleaded innocence and false implication. Accused has submitted that no contraband was recovered from his possession and same was planted upon him.
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15. Accused had stated that he does not want to lead evidence in defence .
16. I have heard arguments from Sh Subhash Chauhan, Ld Additional P. P for the State and Sh Sanjay Suri, Ld counsel for accused.
17. Ld defence counsel for accused had argued that prosecution has not been able to prove its case against accused. It is also argued that no public witness was joined during raid and hence testimonies of police officials become doubtful being interested witnesses. There are material contradictions in the testimonies of prosecution witnesses, which makes the case of prosecution doubtful. It is therefore prayed by Ld defence counsel that accused be acquitted of the offence.
18. On the other hand it is submitted by Sh Subhash Chauhan, Ld Addl. P. P for the State that the prosecution has proved its case sufficiently as the witnesses have supported the case of the prosecution. Prosecution had proved its case beyond reasonable doubt that accused was 13 14 found in conscious possession of 20 kg of Pseudo Ephedrine on 08/03/2013 at 2.15 p.m near Ingate Gandhi Maidan, Chandni Chowk, Delhi. Statements of prosecution witnesses are cogent. There is no inconsistency in the statements of prosecution witnesses. It is prayed by Ld Additional P.P that accused be convicted for the offence.
19. I have considered the arguments advanced by Ld counsel for the parties, facts and circumstances of the case, evidence and material on record.
20. The prosecution has proved its case by way of testimonies of 10 witnesses that accused was found in possession of illegal contraband ie Pseudo Ephedrine .
21. Further, contention of Ld Defence counsel has been that testimony of police official is not reliable as no public witness was joined during raid despite there being availability of public witnesses. On this point, it is important to note that PW4 HC Bharat Singh, PW6 HC Om Parkash and PW10 Inspector Satyavan have stated that they asked public persons to join the investigation but 14 15 they refused to join the investigation and due to paucity of time, no notice could be given to such public persons. Therefore, testimonies of police officials cannot be considered to be unreliable only because they are police officials. As in Karamjit Singh vs State ( AIR 2003 SC 1311) Hon'ble Supreme Court has held that:
"The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without consideration of independent witness their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other purpose and it is not a proper approach to distrust and suspect them without good grounds.
22. As regards the contradictions in the testimonies of prosecution witnesses, I am of the view that though it is argued by the Ld. defence counsel that there are 15 16 contradictions in the testimonies of prosecution witnesses regarding the manner of conducting the investigation, but no detail contradiction, which can be considered as material or fatal to the case of the prosecution has been proved or shown. Thus, no major contradictions have been pointed out by Ld Amicus Curiae. Hence, this argument of Ld Amicus Curiae is not acceptable.
23. It is clear from the testimonies of prosecution witnesses that on 08/03/2013 at 2.15 p.m near Ingate Gandhi Maidan, Chandni Chowk, Delhi, after conducting the raid in pursuance to the secret information, accused was found at the spot, secret informer had identified him as accused Kishan Pal. From cursory search of accused, a bag containing 20 kg of Pseudo Ephedrine was recovered, sample of which was drawn and as per FSL result Ex.P.X, contraband has been proved to be Pseudo Ephedrine. All the prosecution witnesses have cogently and consistently proved beyond reasonable doubt the factum of the 16 17 recovery of contraband from the possession of accused, circumstances in which recovery was effected from the accused, process carried out for recovery of contraband. It has also been consistently proved by the prosecution witnesses that requirement of provisions of NDPS Act have been complied with diligently by all the police officials and Investigating Officers. The sample sent to FSL has proved the contraband to be Pseudo Ephedrine. There is no evidence led by the accused or any reason attributed by the accused for being falsely implicated in the present case nor there is any animosity or enemical relations between the accused and police officials due to which, accused might have been falsely implicated in the present case.
24. In view of above discussion and evidence led by the prosecution, I am of the opinion that it has been categorically proved beyond reasonable doubt by the prosecution that accused was found in possession of 20 kg of Pseudo Ephedrine. Requirements of section 42, 50, 55 and 57 of NDPS Act have been duly complied with by the 17 18 prosecution. Hence accused Kishan Pal is convicted u/s 25 A read with section 9A of NDPS Act.
ANNOUNCED IN THE OPEN COURT ON 27/05/2016 (SHAIL JAIN ) SPECIAL JUDGE: NDPS02 CENTRAL DELHI 18 19 IN THE COURT OF MS SHAIL JAIN: SPECIAL JUDGE:
NDPS: 02: CENTRAL DISTRICT: TIS HAZARI :
DELHI SC NO. 42/13 STATE versus Kishan Pal @ Ballar s/o Sh Ram Bali r/o H. No. 202, Gali No. 5 New Kardam Puri, Delhi FIR No. : 43/13 Offence U/S : 9A/25A NDPS Act Police Station : Crime Branch ORDER ON SENTENCE Present. Shri Subhash Chauhan, Ld. Addl. PP for State.
Sh. Sanjay Suri, Ld. counsel for convict. Convict is produced from JC. Heard submissions of Ld counsels for parties on the point of sentence. It is submitted on behalf of convict Kishan Pal by Ld defence counsel that convict is aged 50 years. He has to look after his wife and two minor children. Convict has already undergone imprisonment for the period of 3 years, 2 months and 18 days. This is first offense of the convict. He is not involved in any other case . Lenient view is prayed for by the Ld counsel for 19 20 convict.
On the other hand, Ld Additional P. P prays that maximum punishment be awarded to the convict, so as to create a deterant effect in society.
I have considered the submissions of Ld. counsel for parties.
The convict has been convicted for the offense punishable U/S 25A read with section 9A NDPS Act, 1985. Considering the age and family circumstances of convict that he is the sole bread earner of the family , coupled with the fact that convict is not involved in any other similar matter, I am of the opinion that one opportunity to mend his ways must be given to the convict. Hence, I am of the opinion that ends of justice would be served if the convict Kishan Pal is sentenced to RI for 3 years and two months ( ie the period already undergone by him) and to pay fine of Rs.5,000/ in default S.I. for 18 days u/s 25 A read with section 9A NDPS Act. Benefit of section 428 Cr.P.C be given .
Copy of the judgment and order on sentence be given to the convict free of cost. File be consigned to record room. ANNOUNCED IN THE OPEN COURT ON 27.05.2016 (SHAIL JAIN) SPECIAL JUDGE (NDPS 02), CENTRAL DELHI 20