Delhi District Court
State vs Mohd Nasiruddin Khan on 11 April, 2023
IN THE COURT OF SH. DHARMENDER RANA
SPECIAL JUDGE, NDPS ACT (CENTRAL):
TIS HAZARI COURTS: DELHI
SC NO. 90/2016
CIS NO. 29050/2016
CNR NO. DLCT01-016600-2016
STATE Versus Mohd Nasiruddin Khan
S/o Late Sh.Kayum Khan
r/o Village Chama Fullur
Bathan,
P.O. Sultan Ganj,
PS Kaliya Chak,
District Malda,
West Bengal.
FIR No. 103/2016
U/S.18/61/85 NDPS Act
P.S. Crime Branch
Date of Institution : 23.11.2016
Date of arguments : 28.03.2023
Date of Decision : 11.04.2023
Final Decision : Convicted
JUDGMENT
A. CASE OF THE PROSECUTION IN BRIEF:-
1. Briefly Stated: Allegations against accused named above is that on 21.06.2016, at about 12 noon, a secret information was received by ASI Sanjay (posted in Narcotics Cell, Crime Branch, Kotwali, Delhi) that a person namely Nasiruddin Khan, who is resident of Malda, West Bengal, indulged in supply of Opium from West Bengal to Delhi, would come in between 01.00 PM-
SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 1/35 02.00 PM on the way to Bahadurshah Jafar Marg to Molana Azad Hospital with a huge quantity of Opium. ASI Sanjay produced secret informer before Inspector P.S. Rana in his office. Inspector P.S. Rana also made enquiries from Secret informer and after being satisfied, informed Sh Ranbir Singh Dahiya i.e. ACP/N&CP about secret information. Sh Ranbir Singh directed that a raid be conducted immediately. Thereafter, ASI Sanjay reduced said secret information into writing vide DD No. 12 at 12.30 PM and copy of same was sent to Inspector P.S. Rana Narcotics Cell, in compliance of Section 42 of NDPS Act.
2. A raiding team was accordingly constituted comprising of ASI Sanjay, Ct Kuldeep and Ct Pankaj. The raiding team accordingly left for the spot in a private car make Santro bearing registration No. DL-12-CK-0322. ASI Sanjay halted the said car at Shantivan Red light and requested 5-6 passersby at Rajghat Red Light and 5-6 passersby at Delhi Gate to join the raiding team but none of them agreed and left without disclosing their names and addresses. At about 01.15 PM, the raiding team accordingly parked the said car at a distance of about 30 meter on the way Bhadurshah Jafar Marg to Maulana Azad Hospital and took their position there. At about 01.30 PM, one person was seen coming from ITO side. The secret informer confirmed the identity of said person from a distance of about 25 meter and left the spot. Said person stopped there on roadside and started looking here and there and after waiting there for about 8-10 minutes, he started retracting but he was apprehended by the police and apprehended person revealed his name as Riafat Nasiruddin Khan S/o Kayyum Khan aged about 27 years.
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3. ASI Sanjay introduced himself and police party to accused. He made preliminary inquiries from the accused and informed him about the information regarding the contraband. The accused was also apprised of his rights to be searched by a Gazetted Officer or Magistrate and he can take the search of members of raiding party and govt gypsy before his search. Notice under Section 50 of NDPS Act was accordingly served in this regard upon accused by ASI Sanjay. Accused Nasiruddin Khan was made to understand the meaning of Gazetted Officer and Magistrate. However, accused refused to be searched in presence of a Gazetted officer or Magistrate and accused had recorded his refusal in this regard on carbon copy of notice and appended his signatures.
ASI Sanjay made cursory search of accused and during the search, from left hand of accused, ASI Sanjay took out one black colour carry bag, which was made of cloth and a mongram was printed there of YGL YINCCELAN. On opening the said bag, it was found to be containing dark grey black printed pant and stripped shirt having monogram of Turtle and one transparent polythene bag was also found there. In the transparent polythene brown colour substance was noticed. The lid/mouth of polythene was tied with rubber band. After opening the rubber band of transparent polythene, sample content was randomly drawn and checked with field testing kit, which was found to be Opium. On checking the weight of Opium with transparent polythene, with the help of electronic weighing machine, the total weight was found to be 3.800 kg. From the recovered Opium, two samples of 50 gms each were drawn and kept in separate transparent SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 3/35 polythenes. The mouth of polythenes were tied with rubber band and IO made two parcels with the help of white colour cloth which were marked as A and B. Remaining opium was left in transparent polythene and tied with rubber band and kept in recovered bag and a parcel was prepared with the help of another white colour cloth which was given mark C. FSL form was filled. The pullandas marked A, B, C and FSL form were sealed separately with the seal of 2C PS NB DELHI. Seal after use was handed over to Ct. Pankaj. The sealed pullandas alongwith the FSL Form were seized by ASI Sanjay vide a separate seizure memo.
4. Thereafter, a rukka was prepared and the same was sent through Ct Kuldeep to SHO PS Crime Branch for compliance of Section 55 of NDPS Act and registration of FIR.
5. ASI Abdul Barkat reached at the spot and carried out further investigation in the matter, prepared Site Plan etc and arrested accused Nasiruddin Khan.
After conclusion of the investigation, ASI Abdul Barkat filed charge-sheet against accused Mohd Nasiruddin Khan alleging the commission of offence punishable under Section 18 of NDPS Act.
B. CHARGE FRAMED AGAINST ACCUSED
6. On 01.03.2017, charge for offence punishable U/s 18(b) NDPS Act was framed against accused Mohd Nasiruddin Khan. Thereafter, case was fixed for prosecution evidence.
SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 4/35 C. EVIDENCE LED BY THE PROSECUTION
7. In order to bring home the guilt of accused, prosecution has examined following 11 witnesses on record.
(i). PW-1 ASI Sanjay is complainant and first IO who proved the recovery, necessary endorsement and other documents prepared by him;
(ii) PW-2 HC Kuldeep is the witness/raiding team member to prove the recoveries;
(iii) PW-3 is ASI Jag Narayan is MHC(M);
(iv) PW-4 ASI Jagdish Kumar who deposited the exhibits in FSL;
(v) PW-5 is ACP Sh Ranbir Singh Dahiya, who has proved the DD entry no. 12 (Ex.PW-5/A) with regard to Section 42 NDPS Act and report under Section 57 NDPS Act with respect to seizure of case property and arrest of accused vide report Ex.PW-5/B and Ex.PW-5/C;
(vi) PW-6 is Inspector Padam Singh Rana who testified with respect to reports under Section 42 dated 21.06.2016 and 57 of NDPS Act dated 22.06.2016;
(vii) PW-7 is duty officer ASI Ram Avtar who regsitered the FIR in the instant matter;
(viii) PW-8 is ASI Dinesh Kumar who produced report under Section 42 and 57 NDPS Act;
(ix) PW-9 is Dr M.L. Meena Sr Scientific officer (Chemistry) FSL Rohini Delhi who proved the FSL report (Ex.PW-9/A) in the present case;
(x) PW-10 is ASI Abdul Barkat i.e. 2nd IO who prepared the chargesheet and collected DD No. 20, DD no.15 and DD No.16.
SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 5/35
(xi) PW-11 is Sh Bijender Singh, who was posted as SHO at that time.
It is pertinent to mention here that PW Ct Pankaj was dropped by Ld. Addl PP for State as two other witnesses i.e. PW ASI Sanjay and HC Kuldeep have already been examined on the similar facts.
D. STATEMENT OF ACCUSED U/S 313 CR.PC:-
8. Thereafter, on 12.02.2021, statement of accused was recorded under Section 313 Cr.P.C. wherein accused had denied all the incriminating evidence which has come on record against him.
E. DEFENCE EVIDNCE LED BY ACCUSED:-
9. Accused examined Sh Zia-ul-sheikh as DW-1 in support of his defence who deposited that prior to 21.06.2016, he was residing in Delhi in a jhuggi situated at Maulana Azad Medical College and was working as Labour Supervisor. 2-3 days prior to 21.06.2016, Nasiruddin came to his residence for search of job. On 21.06.2016, at about 12.30 PM, 5-6 police officials in a white dress came to his residence and took him and accused Nasiruddin Khan and taken to office of Narcotics Control Bureau, Darya Ganj. He was detained the whole night and next day i.e. 22.06.2016, he was let off by the police officials and Nasiruddin was detained in the above noted case by planting upon him contraband. In fact, nothing was recovered from his possession and his residence.
F. FINAL ARGUMENTS:-
SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 6/35
10. I have heard Ld Addl PP for State and Ld counsel for the accused and have carefully perused the record file and have gone through the material placed on record.
G. REASONS FOR THE DECISION:-
11. Section 18 of NDPS Act is reproduced below for ready reference:-
"18.Punishment for contravention in relation to opium poppy and opium- Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any opium shall be punishable -
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees which may extend to two lakh rupees;
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceedings two lakh rupees;
(c)in any other case, which rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees"
Perusal of Section 18 of NDPS Act would reveal that 'possession' of commercial quantity of 'Opium' in the instant case, is punishable under Section 18 (b) of said Act.
APPRECIATION OF EVIDENCE:
SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 7/35
12. In "Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC 1328", it was observed that no hard and fast rule can be laid down about the appreciation of evidence and every case has to be judged on the basis of its own facts. While appreciating the evidence of the witness, the approach must be whether the evidence of a witness read as a whole appears to have ring of truth. Once that impression is formed, it is undoubtedly, necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiency, drawbacks and the infirmities pointed out in the evidence as a whole, and evaluate them to find out whether it is against the general tenor of evidence given by the witness as to render it unworthy of belief.
In 'Bhagwan Tana Patil Vs. state of Maharashtra, AIR 1974 SC 21', the apex court ordained that the function of the court is to disengage the truth from the falsehood and to accept what it finds the truth and reject the rest. It is only where the truth and falsehood are inextricably mixed up, polluted beyond refinement down the core, the entire fabric of the narration given by a witness then the court might be justified in rejecting the same. This legal position was further elaborated in 'State of UP Vs. Shankar, AIR 1981 SC 897', wherein the Apex court observed that mere fact that the witness has not told the truth in regard to a peripheral matter would not justify whole sole rejection of his evidence. In this country, it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is only where the testimony is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence. Therefore, the duty is cast over this court to SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 8/35 dispassionately disengage the truth from the falsehood and accept the truth and reject the same. This court is not meant to reject the testimony of a witness on slightest deflection, however has a bounden duty to search the truth. Apex court in case titled "Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8 SCC 381", held that the principle falsus in uno falsus in omnimus is not applicable in India and it is only a rule of caution. Even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of the accused, the conviction can be maintained. It is the duty of the court to separate the grain from chaff. Hon'ble Apex Court in State of UP Vs. M.K. Anthony 1985 (1) SCC 505 held that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Further, Hon'ble Apex court in 'Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018', in para 12 observed "while appreciating the evidence of a witness, the approach must be whether the evidence of the witness SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 9/35 read as a whole inspires confidence. Once that impression is formed. It is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.......".
13. As far as the defective and illegal investigation is concerned, apex court held that if investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of faulty investigation otherwise criminal trial descend to the IO ruling the roost. Yet if the court is convinced that the evidence of eye witnesses is true, it is free to act upon such evidence though the role of the IO in the case is suspicious (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the IO whose investigation was defective by design. (Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial (Paramjit Singh Vs. State of Punjab AIR 2008 SC 441). The lapses or the irregularities in the investigation could be ignored SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 10/35 only if despite their existence, the evidence on record bears out the case of the prosecution and evidence is of sterling quality. If the lapses or irregularities do not go the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored (Sunil Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
14. Evidently, the binding judicial pronouncements casts a duty upon the Trial Court to cull out the nuggets of truth from the evidence available on record. To sum up, while appreciating evidence on record the duty of the court is to separate credible and incredible part of evidence.
15. Having noted the general principles of appreciation of evidence, let us now examine the material available on record to seek an answer to determine the issue of guilt of accused.
RECOVERY OF CONTRABAND ARTICLE:-
16. The case of the prosecution hangs upon the testimony of star witnesses ASI Sanjay(PW-1) and HC Kuldeep (PW-2).
17. ASI Sanjay(PW-1) in his examination in chief has categorically testified as under:-
"At around 1.30 p.m, I noticed that one person was coming from ITO side, secret informer pointed out that person as accused Nasiruddin while he was at the distance of around 25 mtrs. from us. After pointing out the accused, secret informer left the spot. Accused Nasiruddin, present in the court, came at the turn of Maulana Azad Hospital and stood there. After waiting for 8-10 minutes, he started going towards ITO side on foot. I made signal to the other members of the SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 11/35 raiding party team and apprehended him. On enquiry, his name was revealed as Nasiruddin. I introduced ourselves. In the meantime, 5-6 persons gathered there. I asked them to join the proceeding but none agreed. They went away without telling their names.
I instructed Ct. Kuldeep to bring the private car at the place where we were present with accused Nasruddin. I disclosed about the secret information received to the accused. I further told the accused that as per our information you were carrying afeem and for that I had to take your search. I told about the legal right to the accused that if he wants to be searched in the presence of Gazetted Officer or Magistrate, that officer or Magistrate may be called at the spot or we can produce the accused before any Gazetted Officer or Magistrate for taking his search in the presence of those officer. We offered our search as well as search of the vehicle to the accused Nasruddin. But he refused to take the search of police party. I prepared the notice U/s 50 NDPS Act, carbon copy of the said notice is Ex.PW1/A. I read over and explained the said notice to the accused. After that accused received the said notice by putting his signature in English at point A on Ex.EW1/A. 1 also explained the meaning of the Gazetted Officer and Magistrate to the accused. But accused refused to give his search in presence of Gazetted Officer or Magistrate. Accused told us that he cannot read or write English or Hindi. On the dictation of the accused, I wrote his reply from portion B to B on Ex.PW1/A and thereafter, I again read the reply dictated by the accused, then accused put his signature at point C under the reply. I also put my signature at point D on Ex.PW1/A and obtained his signature of the witnesses. I conducted the casual search of the accused. Accused was carrying one black colour cloth bag on his left shoulder. The said bag was having monogram "YGL Yinccelan". I took the said bag from the custody of the accused and opened the chain of the said bag. One pant of dark grey colour having black spot was found in the said bag. One shirt of grey colour having strips was also found in the said bag. I took out the pant and shirt from the bag and saw that one transparent polythene bag was inside. The mouth of the transparent polythene bag was tied with the rubber band. I took out the said transparent polythene bag and found it was SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 12/35 having brown colour substance. I removed the rubber band and the substance was tested with the field testing kit and it was found 'Afeem'. From the smell also, it was ascertained that the substance was afeem. The said polythene with substance was weighed on the electronic weighing machine. It was found 3 kg. 800 gms. Thereafter, I separated 50 gms substance in two places and the said substance was kept in two small transparent. polythene pouches. Both small polythene pouches were tied with the rubber band. Pullanda of both the pouches were made with the help of white colour cloth and both were marked as A & B. Remaining substance was kept in the transparent polythene bag recovered from the bag of accused and was tied with the same rubber band. I kept the said polythene bag, aforesaid pant and shirt in the cloth bag and pullanda of the said cloth bag was made. It was marked as mark c. 1 filled up the FSL form. I put my seal i.e. 2C PS NB DELHI on the aforesaid pullandas MarkA, B & C as well as on the FSL form. After usingthe seal, it was handed over to Ct. Pankaj. Aforesaid case property was taken into possession vide seizure memo Ex.PW1/B bearing my signature at point A and signature of accused Nasruddin at point B. I prepared the rukka Ex.PW1/C (running into 5 pages) bearing my signature at point A."
18. The testimony of ASI Sanjay(PW1) is further corroborated by the testimony of HC Kuldeep(PW-2). Relevant portion of testimony of PW-2 is also reproduced here as under:-
"At about 1.30 pm, a person was seen coming from the side of ITO on foot, and going towards Bahadur Shah Zafar marg. The secret informer had pointed out towards the person from the distance of 35 meter and identified him and told that the person was Nasuruddin. Thereafter, secret informer left the spot. Accused Nasruddin, present in the Court today (correctly identified), came at corner of the Maulana Azad hospital road and thereafter he started waiting for someone. After about 8-10 minutes, when he started moving towards ITO, ASI Sanjay with the help of raiding team surrounded him and apprehended him. ASI Sanjay introduced himself and the other members of raiding team to accused Nasruddin. ASI Sanjay SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 13/35 inquired from the accused and during inquiry he disclosed his name as Nasruddin Khan son of Qauam Khan r/o Chama Fuller, Batham, Post Office Sulan Ganj PS Kalia Chak, Malda, West Bengal, aged about 27 years. There was a gathering of public persons on the spot and ASI Sanjay had requested from 5-6 persons from said gathering to join the investigation, but none agreed and they left without disclosing their names and addresses and after giving their genuine excuses. Thereafter, ASI Sanjay had told the accused regarding the secret information that he was supplier of opium and used to supply the same in Delhi from West Bengal and on that day he had come there to supply the opium to someone at Delhi. ASI Sanjay had told him that due to said secret information his search was necessary and he also informed the accused about his right to get conducted his personal search before Gazetted officer or Magistrate and prior to his search he can take the search of members of raiding team and their vehicle i.e. Santro Car. IO had also informed him the meaning/relevance of Gazetted officer and Magistrate. A notice U/s 50 NDPS Act was also served upon accused, in this regard. The carbon copy of said notice is now Ex.PW2/A, which bears my signature at point X. ( earlier the said notice was marked as Ex.PW1/A) Accused had refused about his search before Gazetted officer or the Magistrate and he also refused to take search of the members of the raiding team and their vehicle. As accused had told that he cannot read and write in Hindi or English language, so ASI Sanjay had written the reply of abovesaid refusal of accused in the carbon copy of the notice by his pen in Hindi language, the same is written from portion B to B on Ex.PW2/A, which bears my signature at point Y. ASI Sanjay had also read over the said written reply to the accused and thereafter, accused Nasuruddin had put his signature on the reply in English at point C. Thereafter, ASI Sanjay had taken cursory search of accused Nasruddin. During search a black colour cloth bag was found hanging on left shoulder of accused. The said bag was having mark of 'YGL YINCCELAN" ASI Sanjay took the possession of said bag and opened the bag and checked and it found containing one dark grey checkdar printed pant and a grey colour shirt having stripes and having monogram of 'Turtle'. One transparent polythene containing SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 14/35 some weighty substance was found underneath the clothes, which was tied with the help of rubberband, and a dark brown substance was visible in the polythene. The said polythene was opened and the substance which was inside the polythene was checked on field testing kit and by smelling and the said substance was found as opium. The said substance along with polythene was weighed on electronic weighing machine and its total weight was found as 3.800 kg. ASI Sanjay had taken two samples of 50 gm each and kept in separate two small transparent polythene bags and prepared two pullandas mark A and B, with the help of white cloth. Rest of the substance was kept in the recovered polythene bag and was tied with the rubber band. This polythene alongwith the clothes i.e. pant and shirt were kept in the black colour bag and its pullanda was prepared with the help of white cloth and same was mark C. ASI Sanjay g ot prepared FSL form. Thereafter, ASI Sanjay had sealed aforementioned three pullandas and Form FSL with the seal of 2CPSNB DELHI. Seal after use was handed over to Ct Pankaj. ASI Sanjay had taken the three sealed pullandas and form FSL in his possession, vide seizure memo now Ex.PW2/B (earlier ExXPW1/B, which bears my signature at point X. Thereafter he prepared a rukka and handed over the same to me for registration of the FIR alongwith three above said pullandas mark A, B, C, form FSL and carbon copy of seizure memo of contraband and Instructed me to hand over the rukka to Duty officer and rest other articles i.e. three above said pullandas mark A, B, C form FSL and Carbon copy of seizure memo of contraband to the SHO."
19. ASI Sanjay (PW-1) and HC Kuldeep(PW-2) have categorically testified that on the fateful day, accused was found in possession of huge quantity of Opium. Star witnesses of the prosecution are cogent, consistent and credit worthy. The defence has failed to shake the credibility of the star witnesses despite a grueling cross examination of the witnesses.
SAFE CUSTODY OF CONTRABAND:-
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20. The testimony of above said witnesses not only proves the recovery of the said contraband but also proves its prompt dispatch to the police station and its deposit in the malkhana. From the testimony of ASI Sanjay(PW-1) and HC Kuldeep (PW-
2) duly corroborated by the testimony of Inspector Bijender (PW-
11) and MHC(M) ASI Jag Narain (PW-3), it is conclusively established on record that the recovered contraband alongwith two seized samples and the FSL Form was promptly sent to the police station. Contemporaneous report prepared in compliance of Section 57 of NDPS Act Ex.PW-5/B and Ex.PW-5/C coupled with DD entry no.16 (Ex.PW-10/E) further corroborates the prompt dispatch and deposit of the case property.
Further, Inspector Bijender Singh(PW-11); the then SHO, has categorically testified that on 21.06.2016, at about 06.20 pm, Ct. Kuldeep came to his office and he produced three sealed parcels duly Mark A, B, C along with one filled FSL form sealed with the seal of 2CPSNBDELHI and carbon copy of seizure memo. Inspector Bijender Singh (PW-11) further sealed all the three pullandas and FSL form with his seal 'BS'. He further testified that after sealing the recovered article and FSL Form, he promptly handed over the same to ASI Jag Narain (PW-3), who deposited the same in the malkhana and made an entry in register no. 19. Inspector Bijender Singh (PW-11) has proved the DD entry no.16 (Ex.PW-10/E) regarding the deposit of the case property. The testimony of Inspector Bijender Singh (PW-11) regarding prompt deposit of the case property with MHC(M) in the malkhana is not only corroborated by DD entry Ex.PW-10/E but the same also stands corroborated by the testimony of ASI Jag Narain (PW-3), who happens to be the MHC(M) at the SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 16/35 pertinent point of time. ASI Jag Narain (PW-3) has also categorically testified that on 21.06.2016, he was called by SHO in his office along with register no. 19 and SHO handed him over four sealed parcels marked as A, B, C sealed with the seal of 2CPSNBDELHI and BS. ASI Jag Narayan(PW-3) had deposited the same in the malkahana vide register entry no. 2452 i.e. ExPW-3/A. NATURE OF RECOVERED SUBSTANCE:-
21. ASI Jag Narain (PW-3) has further testified that on 23.06.2016, he had handed over pullanda mark A to Ct Jagdish for depositing the same with FSL Rohini. Ct Jagdish (PW-4) has testified that he deposited the same in FSL, Rohini. Ct Jagdish (PW-4) categorically testified that on 23.06.2016, he took one sealed parcel, FSL Form, copy of FIR, copy of seizure memo to FSL Rohini vide RC no.233/2021. He has further testified that the sealed pullanda and the FSL Form were bearing the seal impression of 2CPSNBDELHI and BS and while the case property remained in his possession, the same were not tempered with.
22. The testimony of Sh M.L. Meena(PW-9); Sr. Scientific Officer FSL Rohini, clinches the issue. He categorically testified that on 23.06.2016, one sealed parcel sealed with one seal of 2CPSNBDELHI and one seal of BS was received by him in the FSL. He testified that the seals were found intact and tallied with the specimen seal impression forwarded to him. Sh M.L. Meena categorically testified that upon the examination of sample, it was found to be containing Opium containing Morphine.
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23. Ld. Defence Counsel, except for some inconsequential or insignificant issues, which shall be duly dealt in the later part of judgment, has failed to point out any material inconsistency in the testimony of prosecution witnesses or any processual infirmity in the process of sealing, seizure or deposit of the contraband in the FSL laboratory.
24. The defence has also failed to point out any infirmity or any major inconsistency in the version of the prosecution witnesses so as to cast any reasonable shadow of doubt upon the prosecution version.
The testimony of ASI Sanjay(PW-1) and HC Kuldeep(PW-
2) coupled with the unimpeached FSL Result (Ex.PW-9/A) conclusively establishes on record that on 21.06.2016, accused was found in possession of commercial quantity of Opium.
Consequently, I have no hesitation in observing that prosecution has successfully proved its case against the accused and he deserves to be convicted for commission of the offence under Section 18(b) of the NDPS Act.
Reliance is placed upon the judgment of Hon'ble Delhi High Court in the matter of Kanwar Pal @ Mama Vs State:
2017 CrLJ 2124(Del).
25. Now let us deal with the contentions of Ld. Defence Counsel:-
(i) Non-Compliance Of Section 52A Of NDPS Act:-
It is submitted by Ld. Defence Counsel that testimony of ASI Sanjay(PW-1) and ASI Barkat(PW-10) shows that none of SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 18/35 these P.Ws. made any application for drawing of samples before the Magistrate u/s 52-A(2) of NDPS Act at the time of producing the accused before the Magistrate nor the case property was produced by them before the Magistrate u/s 52A(2) of NDPS Act (for drawing of representative sample and to send it to FSL for chemical analysis) and only they moved an application for destroying the case property u/s 52A of NDPS Act. It is submitted by Ld. Defence Counsel that accused deserves to be acquitted for non-compliance of Section 52A of the NDPS Act. It is contended that it was mandatory for the investigating officer to have drawn samples, in accordance with Section 52 A, in the presence of Magistrate, whereas admittedly the samples were drawn at the spot itself and not in the presence of any Magistrate.
Ld. Counsel has placed heavy reliance upon case titled as Union of India Vs. Mohan Lal & Another 1(2016) SLT 508; AIR Customs Vs Mosafier Alizahi & Ors.: Crl MC No. 1490/2020 DOD 06.06.2020 decided by Hon'ble Delhi High Court and Thounaojam Punima Singh Vs Union of India: Crl A/66/2020 DOD 20.01.2021 decided by The Hon'ble Guahati High Court.
Perusal of record reveals that in the case at hand, proceedings under Section 52A was duly conducted by Ld. MM Sh Chander Mohan. The proceedings under Section 52A of NDPS Act are available on record. Ld. Defence Counsel, during the course of the arguments has not disputed the same. Record further reflects that an application moved by ASI Krishan Kumar requesting for proceedings under section 52A of NDPS Act came to be disposed of by my Ld. Predecessor vide order dated 12.07.2017 directing the matter to be placed placed Ld. CMM.
SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 19/35 The proceedings under Section 52A of NDPS Act were accordingly conducted by Ld. MM Sh Chander Mohan and even representative samples were duly drawn before him. Although, the proceeding under Section 52A of NDPS Act has been carried out after some delay, but mere delay in disposal of the case property under Section 52A of NDPS Act would not justify in discarding the clinching and credible evidence available on record against the applicant/accused. None of the judgment relied upon by Ld. Defence Counsel holds a contrary view. The said contention is bereft of any merits and the same is accordingly dismissed.
(ii) Discrepancies in drawing the samples:-
It is submitted that ASI Sanjay(PW-1) has testified that " It is correct that at the time of recovery of the substance it was in semi-solid condition. The sample was separated after removing the upper side of the substance and took out the sample" whereas HC Kuldeep (PW-2) has testified that "At the time of recovery of the substance it was in solid and quite soft condition, but it was not in liquid condition. The sample was taken from the upper portion and middle portion of the substance and took out the sample. It is correct that the said substance was not mixed prior to taking of the sample."
It is thus argued that there is contradiction in the testimony of ASI Sanjay(PW-1) and HC Kuldeep(PW-2) with respect to the state of the recovered contraband and both have admitted that the recovered contraband was not mixed before drawing the sample. It is thus argued that the veracity of the sample cannot be relied upon and accued deserves to be acquitted. Ld Defence Counsel SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 20/35 has placed heavy reliance upon the judgment of Hon'ble Himachal Pradesh High Court in the matter of Prakash Vs State of HP Crl A. No. 561 of 2019 DOD 11.10.2022.
However, I fail to find any merits in the contention. Both the witnesses testified that the recovered contraband was in solid condition, PW-1 qualifies the same to be 'semi-solid' whereas PW-2 refers to the same as 'solid and quite soft'. Similarly, PW-1 testified that the sample was drawn from the upper side whereas PW-2 says the sample was taken from the upper portion and middle portion. There is hardly any contradiction in the version of both the witnesses affecting the merits of the case.
Now as far as the issue of mixing is concerned, I am of the opinion that since the recovered contraband was found inside a transparent polythene bag and there was no requirement of mixing as the recovered substance already was in a homogeneous state. As per clause no.2.3 of the standing order no.-1/89 dated 13.06.1989, issued by Ministry of Finance(Department of Revenue) Government of India under sub-section (1) of section 52A NDPS Act, Clause 2.3 specifically provides that seized drugs in the packets/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn whereas clause 2.4 specifically provides that in case of seizure of single packet/container, one sample in duplicate is required to be drawn. Further, the judgment of Prakash Vs State of HP(Supra) is of no help to the accused as in that case, sample sent to FSL was not representative in nature, which is not the case herein. In that case, 41 transparent polythene packets were recovered whereas in the case at hand, only one polythene bag has been recovered. Thus, there is no merit in the said contention SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 21/35 and same is accordingly rejected.
(iii) Regarding deficiency in the weight of substance in the pullanda Mark C and variance in weight of pullanda Mark A:-
It is pointed out by Ld.Defence counsel that as per case of the prosecution, 3.800 kg Opium was recovered from the accused and IO withdrew two samples of 50 gms each from the recovered Opium. Remaining Opium was sealed by the IO in pullanda mark C. It is pointed out that during the proceedings under Section 52A of NDPS Act, the said pullanda mark C was produced before Ld. MM Sh Chander Mohan. It is pointed out that out of 3.800 KG (two samples of 50 gms each) 100 gms were withdrawn as sample by the IO and thus the weight of pullanda Mark C should be 3.700 gms. It is pointed out that there was deficiency of about 67.5 gms in the recovered contraband when it was produced before the Ld.MM during the proceeding under Section 52A of NDPS Act and it was found to be weighing only 3 kgs 632.05 gms. It is further pointed out that in the pullanda mark A, the weight of the alleged substance increased from 50 gms to 55.15 gms when it was weighed by Sh M.L. Meena in the FSL. It is submitted that these variations in the weight of substance amounts to tempering of the pullandas. Ld. Counsel for accused has placed reliance upon Saifulla Vs State (Delhi Administration) 1993(25) DRJ; Chameli Devi Vs State 1993 JCC 293; Mehandi Hassan Vs State 1996 JCC 653; Mohd Ibrahim Vs State NCT of Delhi 2013 (1) JCC (Narcotics) 1;
Satnam Singh Vs State of Punjab 1997 Cri.L.J. 2067.
Let us deal with the first plea of defence regarding SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 22/35 variance in the weight of pullanda mark C:-
Perusal of proceedings under Section 52A of NDPS Act would reveal that the variance in the weight has been duly explained by the IO and the explanation has been duly recorded by the Ld. MM. In para 10 of the said proceedings, when asked about the variation in the weight, IO Inspector Manoj Kumar has duly explained that the said variation is due to moisture.
It would be pertinent to mention here that the commercial Opium usually has around 10-15% of moisture. (Source:
https://www.unodc.org/undoc/en/data-and-analysis/ bulletin/bulletin-1953-01-01-3-page005.html). The proceeding under Section 52A of NDPS Act was admittedly carried out by the Ld MM on 06.09.2017 i.e. after about 14 months of the initial recovery, therefore, the loss of around 67.5 gms out of the total 3 kg 700 gms is clearly attributable to the loss of moisture on account of lapse of time. The explanation tendered by the concerned IO sounds very logical and plausible.
Be that as it may, the variation in the readings during the proceedings under Section 52A of the NDPS Act, which essentially deals with the disposal of the case property post recovery, would neither change the nature of the recovered contraband nor it would affect the overall recovery which is way beyond the threshold commercial limit, thus, the said contention of Ld. Defence Counsel is taken on record to be considered and rejected. Reliance is placed upon M.V. Dharman Vs State of Kerala: 2003 Cri.LJ.1586 at Page 1587 (Kerala), Saleem Mohd. Vs Union of India: 2007 Cri.LJ.1747, Madan Lal & Anr. Vs State of Himachal Pradesh Crl.A. 786 of 2002 DOD 19.08.2003(SC).
SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 23/35 Further, as far as the variation in the weight of sample noticed during the test at FSL is concerned, it would be worthwhile to mention here that Sh M.L. Meena has testified that the sealed parcel alongwith plastic polythene and rubber band weighed around 55.15 gms (approx). The statement of the witness suggest that the weight was 'approx'. Further, the substance was weighed alongwith the pullanda and the polythene and thus the difference in weight is clearly attributable to the cloth used to prepare the pullanda and the polythene. Even otherwise also, the difference in weight is too insignificant to have any bearing upon the merits of the case. Reliance in this regard is placed upon Shankar Lal & Ors. Vs State of Rajasthan: RLW 2003(1) Raj.347 DOD 24.08.2001; 2002(4) WLN 338; Ali Vs State of Kerala 1995 Cri.L.J.2974 at page 2976.
Even the judgments relied upon by the Ld. Defence Counsel shall not come to the rescue of the accused on account of factual differences. In the matter of Saifulla Vs State(Supra), there was no evidence regarding preparation of the CFSL Form or its deposit with FSL whereas in the case at hand, it has been established on record that the FSL form was duly filled and received in the FSL alongwith the samples. Similarly, in the case of Chameli Devi Vs State (Supra), the evidence regarding the preparation of the CFSL Form with the seal impression at the spot and its deposit with FSL alongwith the case property was conspicuously missing. Likewise in Mahendi Hassan (Supra), the link evidence between the filing of CFSL Form till the time it reached the FSL for analysis was missing. Neither the malkhana mohrar nor the malkhana register made a mention of deposit of SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 24/35 the CFSL Form alongwith the sample in malkhana. In the case of Mohd Ibrahim Vs State(Supra), there was no evidence to prove that CFSL Form were prepared at the spot and sent to CFSL. In the matter of Satnam Singh Vs State(Supra) also important link between state of seizure till the time the case property reached CFSL were missing which is not the case herein.
Thus, I do not find any merits in the contention and the same is accordingly dismissed.
(iv) Regarding change of colour:-
It is contended by Ld Defence Counsel that in the seizure memo Ex.PW-1/B, colour of the recovered contraband is reflected to be 'Gehra Bhoora Rang' but when the case property was produced before Ld. MM during the proceedings under Section 52A of NDPS Act, the colour of the recovered substance was found to be black. It is further pointed out that in the FSL proceedings, the colour of the recovered substance is recorded to be 'Brownish Black' by Sh M.L. Meena(PW-9). It is further submitted that the change of colour of alleged substance from 'dark brown' to 'black' shows that the alleged recovery is doubtful and planted one. Ld. Counsel for accused has placed heavy reliance upon case titled as Eze Val Okeke @ Valeze Vs Narcotics Control Bureau: 2005(1) JCC (Narcotics) 57.
However, in my considered opinion, the above mentioned variance in colour is attributable to the sense of observation and description of the persons dealing with the recovered contraband. 'Gehra Bhoora', Dark Brown and Black describing the contraband by the witnesses is only attributable to the general indifference of the witnesses to describe the colour of the recovered contraband with precision. A witness is not SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 25/35 expected to testify with scientific exactitude and mathematical precision. Thus, the contradiction/difference with respect to the colour is on account of the caliber and capacity of the witnesses to describe a particular colour and would not go to the root of the matter to affect the overall merits of the case. In the case of Eze Val Okeke @ Valeze Vs Narcotics Control Bureau(Supra), what was analyzed was found to be of 'white colour' and what was seized was of 'brown colour'. The difference between white and brown is very prominent which is not the case with 'dark brown' and 'black'. Therefore, there is no merit in the contention of Ld. Counsel for accused and same is accordingly rejected.
(v) Minor inconsistencies, infirmities, discrepancies in the prosecution case:-
It is further pointed out that there is no seal handing over/ taking over memo proved on record. It is further submitted that there is no evidence regarding the issuance of seal to ASI Sanjay or for that matter to SHO Birender Singh.
Admittedly, it was desirable for the prosecution to prove on record the seal handing over/taking over memo. However, once it is established on record that the purity of the process has not been compromised then the defence cannot claim to have earned some brownie points on account of the lapses of the investigating officer. Reliance is placed upon C. Muniappan & Ors. Vs. State of Tamil Nadu 2010 (10) SCC 567 and Sardul Singh Vs. State of Haryana in (2002) 8 SCC 372.
It is further pointed out that in the chargesheet ASI Barkat (PW10) has claimed that he reached the spot at about 02.00 AM and it is further reflected in the challan that he arrested the accused at about 01.40 PM on 21.06.2016. It is argued that if the SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 26/35 IO reached at the spot at about 02.00 AM then he could not have arrested the accused at 01.40 PM on 21.06.2016.
Perusal of record reflects that the abovesaid anomaly regarding the time of arrival and arrest of the accused in the chargesheet appears to be on account of some typographical error. Perusal of the testimony of ASI Abdul Barkat (PW10) would reveal that he has testified that he reached at the spot at about 08.40 PM. The contemporaneous document DD no.20 (Ex.PW10/C), which is not put to any serious dispute by the defence, corroborates the claim of the IO ASI Abdul Barkat(PW10) wherein it is reflected that he left the office of Narcotics Cell, Crime Branch for going to the spot at about 08.30 PM. Similarly, he has categorically testified that he arrested the accused at around 11.20 PM. The arrest memo Ex.PW-1/E corroborates the claim of the IO ASI Abdul Barkat(PW10). Further, arrival DD No.3(ExPW-10/B) also corroborates the claim of the IO that he returned back to the Narcotics Office on 22.06.2016 at about 02.35 AM. If the IO reached the spot at about 02.00 AM, he could not have returned back to the Narcotic Cell Office by 02.35 AM after concluding the investigation at the spot (preparing site plan, arresting the accused, recording his detailed disclosure etc) thereafter reaching the PS Crime Branch, depositing the personal search articles with MHC(M) at PS Crime Branch and recording the statement of MHC(M) and the SHO Bijender Singh and thereafter reached the Narcotic Office at 02.35 AM. Thus, it is evident that the abovesaid anomaly regarding the timing of arrival of ASI Abdul Barkat(PW10) at the spot and arrest of the accused, as reflected in the chargesheet, is on account of some typographical error.
SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 27/35 It is further pointed out by Ld Defence Counsel that as per register no.19; column no.3(Ex.PW-3/B), it is mentioned that the personal search was deposited by ASI Abdul Barkat (PW10) on 21.06.2016 but when the ASI Barkat(PW10) had reached the PS Crime Branch at 12.30 AM on 22.06.2016 then how come the personal search articles of the accused could have been deposited by him with the MHC(M) on 21.06.2016. Ld. Defence Counsel has placed reliance upon case titled as Sehdev Vs State: 2009(3) JCC (Narcotics) 128.
The testimony of ASI Jag Narain(MHC(M) clarifies the issue. He has categorically testified that in the intervening night of 21/22.06.2016 at about 01.00 AM, the personal search articles of the accused were deposited with him by IO/ASI Abdul Barkat(PW10). Merely because the MHC(M) was not conscious of the fact that the date changes after 12 AM, the entire prosecution case cannot be doubted on account of slight indifference of the MHC(M) in meticulously maintaining his record.
Furthermore, it was incumbent upon the defence to bring the abovesaid timings mentioned in the chargesheet/register no.19 to the notice of the IO/MHC(M) so that the quandary could have been resolved in the Court. Having failed to do so, the defence cannot now claim to have earned some brownie points on account of inadvertent omission/ innocuous mistake of the investigating agency. Still further, the anomaly shall not go to the root of the prosecution case and thus deserves to be rejected. In my considered opinion, the witnesses are not expected to depose with scientific exactitude and mathematical precision. The witness is not expected to recollect the entire incident with a SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 28/35 photographic memory owing to human limitation of recollection and narration etc. The contradiction/discrepancy which do not go to the root of the matter would not affect overall merits of the case.
In the case at hand, the abovesaid anomalies regarding the time mentioned in the record is too trivial a matter to have any material bearing upon the case and thus is taken on record to be rejected.
Hon'ble Apex court in Mohan Singh Vs. State of MP, AIR 1999 SC 883, held that effort should be made to find the truth, this is the very object for which courts are created. One has to comprehend the totality of the facts and circumstances as spelled out through the evidence depending upon the facts of each case.
(vi) Regarding use of Car:-
It is pointed out by Ld. Defence Counsel that ASI Sanjay (PW-1) has testified that car bearing no. DL12CK0322 make Santro was occupied by Ct Pankaj on that day but he did not know the owner of the said car and ASI Sanjay did not take any written permission of Inspector Padam Singh or any other higher officer for using the vehicle no. DL12CK0322. It is further pointed out by Ld. Defence Counsel that the Ct Pankaj, occupier of said vehicle, was not examined to prove the use of vehicle occupied by him or that he had gone for the raid to the spot. It is further argued that ASI Abdul Barkat (PW10) has testified that he did not conduct any enquiry being the 2nd IO of the case regarding the name of the owner of the said vehicle. He even did not note down as to how much the distance was covered by said car. This shows that the story of the use of the said Santro Car is SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 29/35 false and fabricated and the case is planted.
However, in my considered opinion, any inquiry regarding the name of the owner of the Santro Car, the kilometers covered by the said car, is too trivial an issue hardly having any material bearing upon the prosecution case.
Further, in the teeth of clinching and credible evidence available on record mere non-examination of Ct Pankaj is not fatal to the prosecution case.
I am of the considered opinion that witnesses are to be weighed and not counted. Section 134 Indian Evidence Act specifically provides that no particular number of witnesses shall in any case be required for the proof of any fact. The courts are concerned with the merit of the statement of a particular witness and are not concerned with the number of witnesses examined by the prosecution. Reliance is placed upon judgment titled as Raja Vs State (1997) 2 Crimes 175 (Del). The conviction can be sustained even upon the strength of solitary witness if the same is found sterling and credit worthy. Reliance in this regard can be placed upon the judgment of Hon'ble Apex Court titled as Shivaji Sahabrao Bobade and Anr. V. State of Maharashtra (1973) 2 SCC 793 (three Judge Bench) 1973 Cri LJ 1783 : AIR 1973 SC 2622, Para 19 "....Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 30/35 matters more than quantity in human affairs...."
It is settled proposition of law that it is the quality of evidence and not quantity which is required to be assessed by the court to place credence in the statement. Reliance is placed upon the judgment titled as State of UP Vs Kishan Pal 2008 (8) JT 650, 2018 (11) K 233.
Thus, mere non-examination of Ct Pankaj is not fatal to the prosecution case and the argument in this regard is found to be meritless.
(vii) Non-joining of public witness:-
It is forcefully argued by Ld Defence Counsel that though the raid was carried out in a busy public place, there were shops, establishments etc yet non-examination of independent public witnesses casts a shadow of doubt upon the prosecution case and the accused deserves to be acquitted.
Ld. Defence Counsel has placed reliance upon following judgments:-
(1) Krishan Chand Vs State of H.P.: 2017 (3) JCC (Narcotic) 112;
(2) Gorakh Nath Prasad Vs State of Bihar: V(2018) SLT 74; (3) Inder Dev Yadav & Ors. Vs The State of NCT of Delhi: 2014(3) JCC(Narcotics) 129;
(4) Rattan Lal Vs State: 32(1987) DLT 1 Delhi High Court; (5) Ritesh Chakarwarti Vs State of MP: (2006) 12 SCC 321; (6) Ram Prakash Vs State (2014) 146 (DRJ) 629; (7) Mohd Masoom Vs State of NCT of Delhi 219(2015) DLT 271 Delhi High Court.
SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 31/35 However, in my considered opinion, there is no rule of prudence or law which provides that the testimony of official witnesses cannot be relied upon under any circumstances. It is a matter of common knowledge that members of general public, for obvious reasons, are too reluctant to come and testify in a court of law. Hon'ble Apex Court in Ram Swaroop Vs. State 2013 (14) SCC 235 held that if the evidence of police witnesses are found absolutely unimpeachable then the failure to associate independent witnesses would not affect the prosecution case. Similarly, Hon'ble Delhi High Court while dealing with the similar issue in the case of Izazul vs. State 2007 (4) R.C.R (Crl.) 315 observed here as under:-
" Police officials cannot be presumed less or more credible than any other normal public witness------- ----------------- -------------mere fact that they are police officials does not by itself give rise of any doubt about their credit- worthiness "
In the case at hand, ASI Sanjay (PW-1) seems to have made a sincere endeavor to join the public witnesses, however, none of them obliged him. Mere failure of some nonchalant citizens to discharge their duties to assist the police would not absolve the accused of his guilt. Therefore, in my considered opinion, the contention that the case of the prosecution deserves to be thrown over board on account of non-joining of public witnesses is meritless and deserves to be discarded.
(viii) Regarding presence of ACP Randhir Singh Dahiya:-
It is pointed out by Ld. Defence Counsel that HC SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 32/35 Kuldeep(PW-2) in his cross examination has testified that he has seen ACP Randhir Singh Dahiya in his office in morning and after proceeding for the spot and he had not seen him again whereas ACP Randhir Singh Dahiya in his cross examination has admitted that he reached office on 21.06.2016 at about 02.00- 02.30 PM. It is thus contended that the entire story of prosecution of the police is fabricated.
In my considered opinion, the Court owes a duty of separating grains from the chaff and this court is not meant to reject the testimony of a witness on slightest deflection. The court has a bounden duty to search the truth. Apex court in case titled "Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8 SCC 381", held that the principle falsus in uno falsus in omnimus is not applicable in India. Furthermore, the testimony of ACP Ranbir Singh Dahiya (PW5) is intact on all material counts and he has categorically testified that on 21.06.2016, he reached the office at about 2-2.30 PM and his claim regarding the presence in the office has not been disputed by defence by way of cross examination. Thus, the contention is found to be meritless and thus rejected.
(ix) Regarding source of supply and receiver:-
It is contended by Ld Defence Counsel that ASI Abdul Barkat(PW10) had obtained 10 days PC remand of accused and had gone to Calcutta but no alleged supplier of the alleged contraband has been found till date nor any person was found to whom the alleged supply was to be made. There is no chain or link or the source of supply and receipt and it shows that story of prosecution is false.
SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 33/35 However, in my considered opinion, mere failure of investigating agency to detect the source or the last recipient of the contraband, would not mar the entire prosecution case. The case of the prosecution cannot be discarded merely on account of failure of the IO to detect the source/ target receipient of the recovered contraband.
(x) Regarding defence:-
It is argued by Ld. Defence Counsel that in order to prove his innocence, the accused examined DW Mr Ziaul Sheikh who stated that accused Mohd Nasiruddin came to his residence for getting a job 2-3 days prior to 21.06.2016. He further testified that on 21.06.2016 at about 12.30 pm 5-6 police officials came to his residence and took him alongwith Narsiruddin to the office of Narcotics Control Bureau and both were detained in the said office for whole night and later on he was let off by the police. It is submitted that accused has been falsely implicated.
However, in my considered opinion, the plea of defence of false implication sounds hollow and omnibus. It is absolutely unbelievable that as to why any police officer would implicate any innocent person, in NDPS matter without any rhyme or reason. Furthermore, the failure of Mr Ziaul Sheikh(DW-1) to report the matter to the authorities raises a serious question mark about his credibility. Still further, it is absolutely unbelievable that the investigating officer has planted the recovered 3.800 gms of opium to implicate the accused in a false and fabricated case. The very quantity of the recovered contraband goes a long way against the plea of false implication. Consequently, in the absence of any credible material available on record, the plea of false implication cannot be sustained in the eyes of law and is SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 34/35 accordingly rejected.
H. CONCLUSION
26. By examining the aforesaid 11 witnesses in support of its case, prosecution has proved its case against accused beyond all reasonable doubts. The prosecution has also proved that all mandatory provision of NDPS Act have been duly complied with in this case and there is no illegality/irregularity in compliance of the same.
27. The FSL Result conclusively proved that the recovered contraband was Opium.
28. In the given facts and circumstances and considering the material available on record, accused Mohd Nasiruddin Khan is held guilty and is convicted for the offence punishable under section 18(b) of the NDPS Act.
29. Ordered accordingly. Digitally signed by DHARMENDER DHARMENDER RANA RANA Announced in Open Court Date: 2023.04.11 16:52:54 +0530 On 11th April 2023 (Dharmender Rana) Spl. Judge, NDPS, Central, Tis Hazari Courts: Delhi SC No. 90/2016 FIR NO. 103/2016 State Vs Nasiruddin Khan Pages 35/35