Delhi District Court
State vs . : Dharampal on 24 September, 2014
1
In the Court of Dig Vinay Singh : Additional Sessions Judge
Spl. Judge : NDPS (NW) : District Courts : Rohini : Delhi
In the matter of:
SC No. : 54/12
FIR No. : 62/12
PS : Crime Branch
State Vs. : Dharampal
U/s. : 20(b)(ii)(C)/25 NDPS Act
U/s 3/181 M.V. Act
U/s 474 r/w 467 & 30 IPC
State
Versus
Dharampal
S/o Kehar Singh
R/o E-7/233, Sultan Puri,
Delhi.
Date of receipt : 03.09.2012
Date of arguments : 24.09.2014
Date of announcement : 24.09.2014
JUDGMENT
1. Sole accused of this case was sent for trial with the case of prosecution that on 10.03.2012 at about 7.45 PM he was found in possession of total 129 kg of Ganja, which he was transporting in a vehicle. It is also the case of prosecution that at the time of apprehension the accused was found driving the said vehicle without any valid driving license, as the driving licence found in his possession was found to be fake.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 1 of 35 2 1.1 Briefly stated, prosecution claims that on 10.03.2012 when SI Dinesh Dahiya was posted and was present at Special Investigation Team, Crime Branch, Sector-18, Rohini, Delhi, at 4 PM a secret informer came and informed that the accused would come to deliver Ganja near Haryana Maitri Bhavan, Sainik Vihar, Delhi, at about 8 PM in Eicher Tempo No. HR-55E-0240. The informer also disclosed that the Ganja was recently brought from Kolkatta in West Bengal. After the senior police officers, Inspt. Satya Prakash and the Addl. DCP of SIT, were orally informed about the information, the secret information was reduced into writing under DD no.6 at 4.30 PM. A copy of DD No.6 was also sent to the senior police officers in compliance of Section 42 of the NDPS Act. A raiding team was constituted comprising of SI Dinesh Dahiya, HC Ramesh, HC Naresh, Ct. Virender, Ct. Pawan and, (Driver) HC Anil Kumar. The raiding team reached the spot and took position at about 6.30 PM. At 7.45 PM the offending vehicle was noticed and was intercepted. Accused was found driving the said vehicle. He was alone in the tempo at that time. After compliance of Section 50 of NDPS Act, the accused and the vehicle were searched. In the vehicle six bags were found, containing total 129 kg of Ganja. From the recovered Ganja, samples were drawn. The sample property and the case property were all sealed with the seal of SI Dinesh Dahiya. FSL form was filled up. Thereafter, the case property was taken into possession. After getting the case registered, the accused was arrested.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 2 of 35 3 1.2 During investigation, sample parcels were sent to the FSL which also confirmed the substance to be Ganja (Cannabis). On completion of investigation, charge sheet was filed.
2 Accordingly, a charge U/s. 20 (b) (ii) (C) of NDPS Act was framed against the accused for possessing commercial quantity of Ganja. Accused was also charged U/s. 25 of the NDPS Act for using the vehicle in his possession for transporting the contraband. Since at the time of apprehension, the accused was not having any valid license, he was also charged for offence U/s. 3/181 of the Motor Vehicle Act. Accused pleaded not guilty to the charges and claimed trial, whereupon prosecution evidence commenced against him. It would be pertinent to mention here that on 25.10.2013 during evidence it was noticed that the driving license found in possession of the accused was in fact forged and therefore an additional charge U/s. 474 r/w 467 and 30 of IPC was framed against the accused by this Court. The accused pleaded not guilty to the said charge also and claimed trial.
3 In support of its case, prosecution examined total 14 witnesses, out of which the witnesses qua recovery of contraband are PW3 SI Dinesh Dahiya, PW12 HC Ramesh and PW13 Ct. Virender. Out of these three witnesses of recovery, SI Dinesh Dahiya was the initial Investigating Officer. The subsequent investigating officer is examined as PW14 SI Anil Malik.
3.1 Rest of the witnesses are more or less formal in nature.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 3 of 35 4 3.2 PW1 HC Raj Kumar was the Duty Officer who proved registration of FIR Ex. PW1/A and endorsement on rukka. This witness also proved DD No.13 lodged at 12.30 in the midnight of night intervening 10th and 11th March 2012, and DD NO.15 lodged at 1.30 AM as Ex. PW1/B & C, regarding commencement and conclusion of FIR.
3.3 PW2 Main Pal Singh deposed that the accused was working as a driver with him since 2004 and that on the date of incident the vehicle No. HR-55E-0240 was in possession of the accused who had been sent to Kolkatta from Delhi for delivery of certain consignment in Kolkatta. The witness deposed that no goods were booked to be brought to Delhi from Kolkatta but subsequently he learnt from the investigating officer that accused had brought Ganja in the vehicle. The witness proved the loading slip Ex. PW2/A vide which goods were sent from Delhi to Kolkatta through the truck in question. This slip is dated 01.03.2012 and is proved as Ex. PW2/A. It was taken into police possession by the IO on 27.03.2012 vide Ex. PW2/B. Certain questions put by the accused to this witness in his cross-examination are worth mentioning here. In the cross- examination of this witness, the accused did not take a stand that the accused was not driver on the vehicle on the date and time of offence or that he was not in possession of the vehicle on that day. Rather it was suggested to the witness that the consignment recovered by the police in fact belonged to the witness and not the accused. The witness obviously denied that State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 4 of 35 5 suggestion, but this suggestion given by the accused to this witness goes against his own case.
3.4 PW4 Saroj Sarkar proved that the driving license no. WB-03668870, as appearing on the licence recovered from the accused, is not issued in the name of accused. She proved an endorsement to this effect by the licensing authority Kolkatta Ex. PW4/A on a letter of investigating officer seeking information about the said license. The license which was recovered from the accused is proved as Ex. PW4/B, which as per PW4 is forged.
3.5 PW5 Kehar Singh is the registered owner of the vehicle in question.
He is none other than father of the accused. He deposed that this vehicle was being driven by his son(accused) and he also identified the accused in the Court. Despite opportunity, this witness was not cross-examined by the accused. Thereby leaving the testimony of this witness as unimpeached to the effect that the accused used to drive the vehicle in question.
3.6 PW6 Ct. Parvesh Alam carried the six sealed sample parcels, duly sealed with the seal of „DD‟ and „JS‟, from the Malkhana of PS Crime Branch Nehru Place to the laboratory, FSL Rohini on 20.03.2012 along with the FSL form vide Road Certificate Ex. PW6/A. The witness deposed that after depositing the articles in the laboratory he obtained an acknowledgment receipt which he deposited in the Malkhana on that very day.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 5 of 35 6 3.7 PW7 ASI Ajmer Singh proved DD No.6, DD No.7, DD No.10, DD No.12 and DD No.4 dated 10th and 11th March 2012 pertaining to this case as Ex. PW3/A, PW3/B, PW7/A, PW3/H and PW7/B, respectively, and their photocopies as Ex. PW7/C1 to C5, respectively. DD No.6 was registered regarding receipt of the secret information; DD No.7 is the departure entry of the raiding team to the spot at 6 PM; DD No.10 is regarding proceeding of SI Anil Malik to the spot at 11 PM; DD No.12 recorded at 2.30 AM is regarding return of SI Dinesh Dahiya to the office and; DD No.4 dtd. 11.03.2012 is the arrival entry of SI Anil Kumar and others in the office of SIT, Crime Branch.
3.8 PW8 Sh. R.C. Palekar from National Highway Authority of India proved the computerized record regarding movement of the vehicle in question on 05.03.2012 when it passed through the Toll Plaza of Dankuni towards Dhanbad from Kolkatta at 8.17 AM in down direction, and also when the vehicle crossed Toll Plaza of Palsit near Kolkatta on that very day at 7.06 AM in the down direction. He exhibited the details as Ex. PW8/A & B with relevant certificates U/s.65B of Indian Evidence Act as Ex. PW8/A1 & B1, respectively.
3.9 This witness R.C.Palekar G.M. (Elect.) of National Highways Authority of India. The certificates U/s 65B Ex.PW8/A-1 & B-1 do not meet the necessary requirements of Sub Section 2 of Section 65B of Indian Evidence Act. Admittedly, Ex.PW8/A & B were generated from the information stored in the relevant computer system of NHAI. Therefore, it was necessary that the certificates U/s 65B of the State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 6 of 35 7 Evidence Act ought to have complied with the conditions contained in Sub Section 2 of Section 65B. In Ex.PW8/A-1 & B-1, all that is mentioned is that the report Ex.PW8/A & B have been retrieved from the server toll data back up at NHAI, Headquarter, New Delhi maintained on request of DCP and that the server toll data backup is accessible to the Engineers deployed by NHAI.
3.10 PW9 Joy Tirkey was the Addl. DCP, SIT on the date of offence. He proved that on the date of offence, at about 4.20 PM he was present in his office with Inspt. Satya Prakash when SI Dinesh Dahiya along with the informer came and told about the information. Thereafter, on his instructions, raiding team was constituted and raid was conducted. He also deposed that at about 9 PM on that very day he was telephonically informed that Ganja was recovered. The witness also proved that he received the true copy of DD No.6 Ex. PW9/A in compliance of Section 42 of NDPS Act, within the stipulated period, which was signed by him. The witness also deposed that he also received the two reports U/s.57 of NDPS Act, one given by SI Dinesh Dahiya and another given by SI Anil Malik on 11.03.2012 as Ex. PW9/B & C, qua seizure of contraband and arrest of accused, which he saw and signed. Relevant entries in the register regarding receipt of those reports are proved as Ex. PW9/X collectively. This witness also proved that during investigation he wrote communications to National Highways Authority seeking information about the movement of vehicle in question through Toll Plazas during the relevant time.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 7 of 35 8 3.11 PW10 Inspt. J.S. Joon was the Inspector/SHO of PS Crime Branch Nehru Place. He deposed that on the night intervening 10th and 11th of March 2012 at about 12.25 AM Ct. Virender came to his office with 18 sealed parcels, which were sealed with the seal of DD and one FSL form with the same specimen seal, and also one computerized copy of seizure memo. The witness applied his seal of „JS‟ on all the 18 sealed parcels as well as same specimen seal on the FSL form and then after inquiring the FIR number, he noted down the FIR number on the articles and then deposited them in the Malkhana vide an entry in register no.19. The witness also proved that he lodged DD No.14 at 12.40 AM Ex. PW10/A regarding deposition of case property in the Malkhana. He also deposed that at 6.40 AM accused was produced before him by SI Anil Malik.
3.12 PW11 HC Jag Narain was the Malkhana Moharrar of the Police Station who corroborated that on 11.03.2012 at 12.35 AM, 18 sealed parcels, one FSL form with same specimen seals and one copy of seizure memo were deposited in the Malkhana vide entry in register no.19 Ex. PW11/A. He also deposed that thereafter SI Anil Malik also deposited personal search articles of the accused vide entry in the register Ex. PW11/B. The witness also deposed that on 20.03.2012, out of the 18 sealed parcels, 6 sample parcels bearing Mark 1A, 2A, 3A, 4A, 5A & 6A were sent to the FSL along with FSL form, vide RC Ex. PW11/C, through PW6, and that PW6 thereafter deposited acknowledgment receipt Ex. PW11/E in the Malkhana.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 8 of 35 9 3.13 The recovery witnesses PW3 SI Dinesh Dahiya, PW12 HC Ramesh and PW13 Ct. Virender, deposed that on the date of incident a raiding party comprising of them as well as HC Anil and Ct. Pawan was constituted. SI Dinesh Dahiya deposed that prior to it at 4 PM when he was present in SIT Crime Branch, Sector-18, Rohini, on 10.03.2012 one informer came and informed that the accused would come near Haryana Maitri Bhavan in Eicher Tempo No. HR- 55E-0240 with Ganja. He produced the informer before Inspt. Satya Prakash and Addl. DCP, who also made inquiries from the informer and then on being satisfied raid was authorized. Thereafter, he recorded the secret information in writing at 4.30 PM under DD No.6 and a true copy of the said DD was sent to the senior police officers. It is deposed by the recovery witnesses that raiding team along with the informer left the office for spot at 6 PM under DD No.7 Ex. PW3/B. The raiding team reached the spot at 6.30 PM and took position. Certain public persons were requested to become witness but no one agreed. At 7.45 PM the offending tempo was noticed. It was signaled to stop. The accused was found driving the said tempo. Identity of the raiding team was disclosed to the accused. Before that the informer had left after pointing out towards the accused. The accused was informed of his legal rights under section 50 NDPS Act. Legal notice U/s.50 of NDPS Act is proved as Ex. PW3/C. Accused refused to exercise his legal rights and his refusal is proved as Ex. PW3/D. After compliance of notice U/s.50 of NDPS Act a search of body of accused was conducted in which nothing incriminating was recovered. When the tempo was searched, six plastic bags were State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 9 of 35 10 recovered from the back portion of the tempo. Those bags were found to be containing Ganja. They were checked one by one and measured. The six bags were found to be weighing 30 kg, 30 kg, 20 kg, 10 kg, 14 kg and 25 kg, respectively, i.e. total 129 kg. From each of the bags, two sample each of 1 kg each of Ganja were separated and kept in parcels. The sample parcels were given corresponding numbers 1A-1B to 6A-6B, respectively. All the bags were sealed with the seal of DD. Form FSL was filled up, on which also same specimen seal was applied. The contraband was taken in possession vide memo Ex. PW3/E. The tempo was also taken into possession vide memo Ex. PW3/F. Rukka Ex. PW3/G was prepared and was handed over Ct. Virender for taking it to the PS Crime Branch Nehru Place for registration of FIR. Besides rukka, the constable was also handed over all the 18 sealed parcels, the FSL Form and a copy of the seizure memo to be taken to the Police Station and to be handed over to the SHO.
3.14 It is also deposed by PW13 Ct. Virender that he took the above mentioned documents and the articles to the PS Crime Branch, where he handed over the rukka to the Duty Officer for registration of FIR and handed over the case property and other documents to the SHO and thereafter the SHO applied his own seal and then the property was deposited in the Malkhana. It is also deposed by PW13 that thereafter he carried the copy of FIR and original rukka to the spot where he handed them over to SI Anil Malik, who had already reached there.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 10 of 35 11 3.15 It is deposed by PW3, PW12, PW13 and PW14 that when PW14 SI Anil Malik reached the spot Ct. Virender was about to leave the spot with case property and rukka and then after getting the case registered he returned to the spot. During this time, site plan Ex. PW3/D1 was prepared at the instance of SI Dinesh and the accused was interrogated. The accused was thereafter arrested vide memo Ex. PW12/A and his personal search was conducted vide memo Ex. PW12/D. In personal search of accused, besides other articles, original notice U/s.50 of NDPS Act was also recovered. From the possession of the accused, 8 toll plaza slips were also recovered i.e. Ex. PW14/A1 to A8 which were taken into possession vide memo Ex. PW12/C. Two mobile phones were also recovered from the possession of the accused which were seized vide seizure memo Ex. PW12/B. From the tempo, documents were recovered viz permit, pollution certificate, insurance, etc. and also one driving license. These documents were taken into possession vide seizure memo Ex. PW14/B. Thereafter, the accused was taken to PS Crime Branch and from there to SIT Crime Branch. SI Dinesh Dahiya and SI Anil Malik both proved their respective reports under section 57 of NDPS Act qua seizure of contraband and arrest of the accused, respectively.
3.16 The accused was identified by the recovery witnesses in the Court and the case property has also been identified.
4 When on completion of prosecution evidence, all the incriminating evidence was put to the accused, the accused generally denied the State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 11 of 35 12 evidence against him. Accused claimed that he was apprehended from near his house at night when he was standing on the road and at that time he was not driving any tempo. He claimed that he even did not know how to drive tempo. He also claimed that he did not possess any driving license or contraband. He claimed that his signatures were obtained by the police on blank papers in the Police Station and no proceeding as claimed by the prosecution witnesses was conducted at the spot. He also denied that any toll plaza slips were recovered from him. Regarding mobiles, the accused admitted that those mobiles were recovered from his possession but claimed that those phones were recovered when he was picked up from near his house. Accused claimed that it is a false case against him and that witnesses have deposed falsely. He claimed that he has been implicated falsely in this case and that the contraband was planted upon him. However, the accused did not come up with any specific reason as to why he would be falsely implicated in this case and as to why the prosecution witnesses would depose against him falsely. Accused though initially opted to lead evidence in his defence, but on 18.02.2014, without examining any witness in his favour, he closed the evidence in his defence.
5 I have heard Ld. Prosecutor for the State and Ld. Counsel for the accused.
6 As mentioned above, although the accused claimed that he has been falsely implicated and that the witnesses of prosecution have deposed against him falsely, but he did not come up with any reason State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 12 of 35 13 either in his statement U/s.313 Cr.P.C. or in the cross-examination of witnesses of prosecution by way of suggestion as to why, if at all, he would be falsely implicated. If accused in a criminal trial claims false implication it is the accused who has to come up with plausible reason or motive behind his false implication. Those facts being in exclusive knowledge of accused, onus was on the accused to show as to for what reason he would be falsely implicated. The accused has not even remotely suggested any such reason for his false implication.
The recovery witnesses PW3, PW12 and PW13 supported the case of prosecution in Toto. All these three witnesses corroborated each other's versions on all necessary and material particulars. Nothing material could be brought out on record from the cross- examination of these prosecution witnesses to show any doubt as to the reliability and trust worthiness of these witnesses. These witnesses have no reason to falsely depose against the accused. For that matter, none of the prosecution witness has any reason to falsely implicate the accused. The quantity of contraband recovered in the present matter is substantial. As huge as 129 kg of Ganja has been recovered, which is six times more than the commercial quantity declared under NDPS Act, 1985. Even if the accused was to be falsely implicated, the said purpose could have been achieved by planting a smaller quantity. After all why would a quantity as huge as 129 kg, which is also worth substantial amount of money, would be planted upon the accused.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 13 of 35 14 7 Certain suggestions given by the accused to some of the witnesses would indicate that the accused did not seriously challenge the factum of recovery of Ganja from his truck. In the cross-examination of PW2 Main Pal, the transport businessman under whom the truck in question was being plied by the accused, deposed that he had booked a consignment from Delhi to Kolkatta and there was no consignment booked from Kolkatta to Delhi and therefore the truck of accused should have been empty. In the cross-examination of this witness the accused suggested him that the consignment recovered by the police belongs to the witness. The suggestion given to the witness and its obvious reply by the witness, reads as follows:
It is wrong to suggest that consignment recovered by the police belongs to me".
Another similar suggestion given to the witness and denied by the witness reads as follows:
"It is wrong to suggest that it was me, who was transporting Ganja to Delhi in the above mentioned vehicle".
8 These two suggestions would reveal that the accused did not seriously dispute the factum of recovery of contraband but he tried to take a defence that the Ganja actually belonged to PW2 Main Pal. Even otherwise from the cross-examination of the recovery witnesses nothing could be brought out on record to even remotely indicate that the contraband was not recovered from the truck driven by the accused.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 14 of 35 15 9 PW5 Kehar Singh father of accused and the registered owner of the vehicle in question deposed that the vehicle was registered in his name but it used to be driven by his son, the accused. This witness was not at all cross-examined by the accused. Not even a single suggestion was given to the witness that the accused was not in possession of the truck on the date of recovery. The accused also did not offer any explanation as to if the truck was not in his possession on the date of recovery, in whose possession it was. The cross-examination of PW2 coupled with the fact of non-cross examination of PW5, when read with the evidence of the recovery witnesses, clearly prove that the truck was in possession of the accused on the date and time of recovery. The recovery is proved by the recovery witnesses who not only identified the case property in the Court but also identified the accused as the same person in the Court. Other prosecution witnesses completed the link that the case property, after its recovery and sealing, remained intact throughout the time till it was produced in the Court or till the sample were examined by the FSL authority. The FSL result Ex. PW14/C establishes that the material recovered was indeed Ganja. All the six sample parcels Ex. 1A to 6A were found to be Ganja (cannabis).
10 It is argued on behalf of the accused that there are contradictions in the testimony of the recovery witnesses. Ld. Counsel for the accused points out that the recovery witnesses did not specify in their examination in chief as to at what time the accused was to come at the spot and therefore, as per him, it is highly unnatural that the police team waited for the accused for a long period.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 15 of 35 16 10.1 I do not find any force in the said contention. In the secret information received and reduced to writing under DD No.6, Ex. PW3/A, it is mentioned that the accused was likely to come at about 8 PM at the spot in the said truck. PW3 SI Dinesh Dahiya also in his examination in chief proved the said secret information reduced to writing as Ex. PW3/A. He also deposed that at 7.45 PM the truck of the accused was noticed at the spot and then it was intercepted. Similarly, PW12 & PW13 also in their examination in chief specifically deposed that the truck of accused driven by the accused arrived at the spot at 7.45 PM. Merely because these witnesses did not depose in their examination as to at what time the accused was likely to come at the spot as per the secret information, does not render the testimony of witnesses in any manner doubtful.
10.2 Similarly, merely because the position of the secret informer at the spot is not described exactly during the examination in chief of the recovery witnesses, is not a ground to disbelieve the version of recovery witnesses.
11 The argument of the accused that the secret informer identified the vehicle only at the spot and did not identify the accused as the person against whom information was given, is futile. It is immaterial whether the informer identified the accused or the vehicle at the spot. Even if where a vehicle is intercepted and contraband is recovered from it whoever is in possession of the contraband would be an accused. In the present matter, there was no one else present in the vehicle besides the accused and therefore identification of the State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 16 of 35 17 accused separately by the informer at the spot would have been of no consequence. The exclusive possession of the vehicle and the contents in the vehicle were of the accused and none else, as proved in evidence of this case.
12 It then contended by the accused that HC Anil and Ct. Pawan, who also witnessed the alleged recovery have not been examined by the prosecution and therefore adverse inference should be drawn against the prosecution.
12.1 As many as three recovery witnesses PW3 SI Dinesh Dahiya, PW12 HC Ramesh and PW13 Ct. Virender have been examined by the prosecution. Examining other witnesses on same point would have been nothing but repetitive. It is the quality of evidence which matters and not quantity. No adverse inference can be drawn against prosecution for not examining other recovery witness.
12.2 Hon‟ble Supreme Court in the decision reported as AIR 2001 SC 2328 Takhaji Hiraji vs. Thakore Kubersing Chamansing , observed as follows:
"............ It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 17 of 35 18 holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The Court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of non- examination of other witnesses."
12.3 Recently, Hon‟ble Delhi High court in a case titled as State Versus Ravi Kumar & others, in Death Reference no. 1 of 2014, decided on 26th August 2014, observed as follows:
"98. Merely because a witness is not examined by the prosecution, a criminal court would not lean to draw an adverse inference that if he was examined he would have given a contrary version. The illustration (g) to Section 114 of The Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances to facilitate the drawing of an adverse inference it should not be a mechanical process to draw an adverse State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 18 of 35 19 inference merely on the strength of non-examination of a witness, even if the witness is a material witness."
13 It is also argued by the accused that as per the case of prosecution, Ganja was recovered from the back portion of the truck which was open and without any gate or lock and therefore the prosecution failed to prove that the possession of accused was exclusive.
13.1 This argument is fallacious. Once an accused is found driving a vehicle with gunny bags containing ganja, loaded on the backside of the vehicle, the possession of accused stands established and then the onus as per Section 35 and 54 of the NDPS Act shifts on the accused, if he claims that he was not in possession of the articles. It was never the case of the accused that somebody kept the gunny bags on his vehicle without his knowledge or consent or that he came to know about the bags only after he was apprehended by the recovery witnesses of this case. The accused has failed to discharge onus on him U/s.35 & 54 of the NDPS Act. It is not a case where only a small bag or article was recovered from backside of the truck which could have been thrown by somebody on the truck. There are as many as 6 large bags recovered which were weighing 129 kg in total. Those bags could not have been thrown by anybody on a running vehicle and therefore the argument of the accused has no meaning at all.
13.2 Section 35 of the Act recognizes that once possession is established the court can presume that the accused had a culpable mental state, meaning thereby conscious possession. The person who claims that State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 19 of 35 20 he was not in conscious possession has to establish it. Presumption of conscious possession is further available under Section 54 of the Act, which provides that the accused may be presumed to have committed the offence unless he satisfactorily accounts for the possession of contraband. From the conjoint reading of the provisions of Section 35 and 54 of the Act, it becomes clear that if the accused is found to be in possession of the contraband article, he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused that the possession was not conscious.
13.3 Once the possession of the accused, and his control over the contraband, is proved, then statutory presumption under Section 54 and 35 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, it was for him, to rebut the statutory presumption, by leading cogent and convincing evidence. However, the accused, failed to rebut the said presumption either State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 20 of 35 21 during the course of cross-examination of the prosecution witnesses, or by leading defence evidence.
14 It is next argued that the recovery witnesses PW12 and PW13 contradicted themselves inasmuch as PW12 claimed that the bags were gunny bags with their mouth closed with Sutli, whereas, PW3 claimed that bags were plastic gunny bags. I do not find any contradiction in these two statements of prosecution witnesses. It is merely a case where PW12 explained the bags to be gunny bags with their mouths closed, whereas, PW13 described them to be plastic gunny bags. There is absolutely no contradiction in these two versions of PW12 and PW13. Even otherwise small and trivial variations in the description of property of the witnesses cannot go to an extent of giving benefit to the accused. When witnesses are examined in the Court after some elapse of time, there are bound to be certain trivial and minor contradictions in the testimony of the witnesses. In the present matter, though the recovery was effected on 12.03.2012, PW12 and PW13 were examined on 30.08.2013, and PW3 was examined on 22.03.2013. Thus, witnesses of recovery were examined in the Court after about one year in the case of PW3, and after about 1½ year in the case of PW12 and PW13. These witnesses are police officials and one cannot lose sight of the fact that police officials become witnesses in a large number of investigations done. Thus, between the time of recovery of this case and examination of recovery witnesses in the Court these witnesses must have participated in several other investigations also. In such circumstances, expecting these witnesses to depose minutely with State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 21 of 35 22 mathematical precision would be unjustified. Such small and trivial contradiction cannot shake the foundation of prosecution case and have to be ignored. Similarly, the contradictions as to the colour and make of weighing machine, field testing kit, laptop, position of barricades, the exact location where raiding team first reached the spot are all minor and trivial contradictions. The claim that PW13 stated that Ganja was in the polythenes inside the bags whereas other did not so claim, is again not something which can be read in favour of the accused.
15 I do not find any reason to disbelieve the testimony of prosecution witnesses. Except some minor contradictions here and there, which are very trivial in nature, there is nothing in the cross-examination of the prosecution witnesses to doubt their testimony.
16 In CRL.A.819/2011 Ravi Kumar & Ors. Versus State, decided on 30.05.2014, Hon'ble Delhi High court observed that minor discrepancies are bound to occur due to normal errors of perception and observation, errors of memory due to lapse of time, mental disposition due to shock and horror at the time of occurrence. In fact such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of the version. If, on the other hand, witnesses give evidence with mechanical accuracy, it could be cogitated that they were giving tutored versions. The question is whether embellishments in statement of witnesses can destroy the core of the prosecution story. Minor contradictions appearing in the testimony of the witnesses does not materially affect the core of the prosecution State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 22 of 35 23 case nor render the testimony of the witnesses liable to be discredited.
17 The recovery witnesses and other witnesses, who have completed the link qua the safety of property, leaves no manner of doubt that there was no tampering done with the case property in any manner. The case property was sealed by PW3 with his seal at the spot. The case property was given to PW13 Ct. Virender who took them to the Police Station. At the Police Station, SHO applied his own seal and then deposited the case property in the Malkhana. The MHC(M) confirmed deposition of case property in the Malkhana with the seals of IO and SHO in intact condition. He also confirmed that till the case property remained in the Malkhana, nobody tampered with it. The official who took sample parcels to FSL also confirmed the fact that the case property remained intact during that time also. When the case property was produced in the testimony of PW3 for the first time in the Court, the seals and bags were found intact. Thus, merely because PW13 said that Ganja was in the polythenes inside the bags does not raise any doubt about the safety of the case property. After all prosecution witnesses have no reason to tamper with the case property. The FSL result confirms that the seals on the parcels were intact and those were tallied with the specimen seals on the FSL form. Thus, a stray statement of PW13 does not create any doubt, much less reasonable, that the case property was not kept safely or was tampered with.
16 It is also contended by the counsel for the accused that despite State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 23 of 35 24 availability, no independent witness was joined by the prosecution and, therefore, the case of prosecution must be disbelieved. Mere non-joining of other independent witnesses is also not a circumstance against the prosecution. The prosecution witnesses have indeed claimed that they requested public persons to join the proceedings but those public persons did not agree and also did not tell their names and addresses.
17 In Criminal Appeal No. 2302 of 2010 titled as Gian Chand & Ors.
vs. State of Haryana, decided on July 23, 2013, Hon'ble Apex court held as follows;
"25. The next question for consideration does arise as to whether it is necessary to examine an independent witness and further as to whether a case can be seen with doubt where all the witnesses are from the police department.
In Rohtash v. State of Haryana JT 2013 (8) SC 181, this court considered the issue at length and after placing reliance upon its earlier judgments came to the conclusion that where all witnesses are from the police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought. The Court held as under:
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 24 of 35 25 "Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon."
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v.State, (1996) 11 SCC 139; Akmal Ahmad v. State of Delhi, AIR 1999 SC 1315; M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan @ John v. Superintendent of Customs, AIR 2007 SC 2040).
26. In State, Govt. of NCT of Delhi v. Sunil. (2001) 1 SCC 652, this Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 25 of 35 26 witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
27. In Appabhai v. State of Gujarat AIR 1988 SC 696, this court dealt with the issue of non-examining the independent witnesses and held as under:
"The prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether-in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties."
28. The principle of law laid down hereinabove is fully applicable to the facts of the present case. Therefore, mere non-joining of an State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 26 of 35 27 independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.
29. In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness.
Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed."
18. PW9 Dr. Joy Tirkey, Addl. DCP of the Crime Branch confirmed that the secret informer was produced before him before the raiding team left for the spot. He also proved that the reports U/s.42 and Section 57 NDPS Act were received by him within the stipulated period. In the report U/s.57 Ex. PW9/B the case property is described. Process of sealing the case property at the spot is also described. Thus, this State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 27 of 35 28 document also rules out any kind of tampering with the case property.
19. From the testimony of PW8, prosecution sought to prove that the vehicle of accused passed through toll plazas near Kolkatta while coming towards Delhi on 05.03.2012 in the morning. Certificate U/s.65B of Indian Evidence Act is also exhibited by this witness as Ex. PW8/A1 and B1. Though the accused in his cross-examination suggested to the witness that these two certificates were not meeting the requirement under sub Section 2 of Section 65B of Indian Evidence Act, which suggestion was denied by the witness, but mere denial of that suggestion would not make the certificate as proved in accordance with law.
20. The certificates U/s 65B Ex. PW8/A1 and B1 does not meet the conditions required in Sub Section (2) of Sec. 65 B of the Indian Evidence Act and therefore these details will have to be held to be not proved in accordance with law.
21. Very recently on 18th September 2014, a three judge bench of Hon‟ble Supreme court in the a case of Anvar P.V Versus P.K Basheer and others, Civil Appeal No. 4226 of 2012, Decided on September 18, 2014, held as follows;
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 28 of 35 29 admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B (2). Following are the specified conditions under Section 65B (2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 29 of 35 30 regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 30 of 35 31
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 31 of 35 32 .............................
Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
....................................
..................... An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
22. But even if we ignore the certificates proved by PW8 and even if the testimony of PW8 is ignored, as to the travel of accused from the toll plazas concerned, still from the testimony of PW2 it is established that the truck of accused was booked with consignment from Delhi to State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 32 of 35 33 Kolkatta and he was to bring back the vehicle without any consignment or goods. Yet in his truck, Ganja was found loaded by the recovery witnesses and, therefore, even if testimony of PW8 is ignored, the factum of recovery of Ganja from the vehicle stands proved beyond reasonable doubt in the present case. More than the fact as to from where the ganja was brought, the fact which is relevant is that the accused is found in possession of the said contraband.
23. The sum and substance of the above discussion is that the accused was found in possession of 129 kg of Ganja and thus he committed offence U/s.20 (b)(ii)(C) of the NDPS.
24. The accused also used vehicle in his possession for transporting the Ganja and thus violated Section 25 of the NDPS Act also. The accused is found guilty for those two offences.
25. As mentioned above, one additional charge U/s.474 of IPC read with Section 467 & Section 30 of IPC was framed against accused on 25.10.2013 for being found in possession of a forged driving license on the date and time of recovery, which driving license falls within the definition of a valuable security as defined in Section 30 of IPC.
25.1 In the statement, the accused claimed that the driving license was planted upon him and he was not found in possession of driving license. The said driving license is proved to be recovered from the possession of accused after he was apprehended at the spot. Nothing material has come out in the cross-examination of the State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 33 of 35 34 witnesses to show that his driving license was not found in possession of the accused or that it was planted upon him. The driving license Ex. PW4/B bears photograph of the accused, which fact is not denied. If the accused was not in possession of this driving license, then how this driving license bears his photograph, is not explained by the accused. PW3 Saroj Sarkar proved that this driving license was not issued to the accused and is forged. Though no evidence has come forward that the accused forged the driving license, but indeed he was found in possession of it.
25.2 Section 474 of IPC makes punishable an act, when a person is found in possession of a document of the description as mentioned in 467 of IPC. Section 467 of IPC provides punishment for forgery of valuable security. Section 30 of IPC defines that valuable security denotes a document which is or which purports to be a document whereby any legal right is created, restricted, etc. A driving license creates a legal right in favour of a person inasmuch as the said person gets the right to drive the vehicle under the rules. Driving a vehicle without a license is prohibited under law and, therefore, when the accused possessed the driving license he sought to create a right in his favour for driving the vehicle. Thus, when the accused was found in possession of the forged driving license, he also committed offence punishable U/s.474 of IPC.
26. Since the accused was not in possession of any valid driving license at the time of his apprehension, therefore, he also committed offence U/s.3/181 of Motor Vehicle Act for driving the vehicle in question State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 34 of 35 35 without valid license. Thus, accused is also found guilty for the said offence U/s.3/181 of Motor Vehicle Act.
27. The accused is convicted U/s.20 (b) (ii) (C) of NDPS Act; U/s 25 of NDPS Act; U/s.474 of IPC and; Section 3/181 of Motor Vehicle Act.
Announced in open Court on 24.09.2014.
Dig Vinay Singh ASJ/Spl. Judge:NDPS(NW) District Courts/Rohini/Delhi State Vs. Dharampal FIR No. 62/12 Dtd: 24.09.2014 Pg. 35 of 35