Delhi District Court
State vs . Logi Dass on 5 November, 2012
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Logi Dass
FIR NO: 270/04
P. S. Ambedkar Nagar
U/s 21/61/85 NDPS Act
Unique ID no. 02403R0735662005
JUDGMENT
Sl. No. of the case : 177/2A (11.7.2008) Date of its institution : 9.3.2005 Name of the complainant : HC Vijay Singh Date of Commission of offence : 5.6.2004 Name of the accused : Sh. Logi Dass, S/o Sh. Ganpati Offence complained of : Section 21/61/85 NDPS Act Plea of accused : Not guilty Case reserved for orders : 30.8.2012 Date of judgment : 5.11.2012 Final Order : Convicted BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Logi Dass upon the police report filed by P.S. Ambedkar Nagar u/s 21/61/85 of The Narcotic Drugs and Psychotropic Substances Act, 1985.
2. As per the prosecution's story on 5.6.2004 at about 1 pm near T point Khanpur, State Vs. Logi Dass FIR no.270/04 Madangir Road, New Delhi, accused was found in possession of 11.510 gms of smack in contravention of provisions of NDPS Act and thus committed an offence u/s 21 (b) of the NDPS Act.
3. After completing the formalities, charge sheet was filed against the accused and the charge was framed against the accused u/s 21 (b) of NDPS Act to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined six witnesses.
5. PW 1 is WSI Birma Devi who was the duty officer and proved the FIR as Ex.PW1/A upon a rukka.
6. PW 2 is Sh. Gajender Dutt who deposed that on 5.6.2004 a report u/s 57 NDPS Act sent by SI Akhilesh Yadav regarding the recovery of 11.510 gms was received in the office of ACP, Greater Kailash which was diaried vide diary no. 1969, ACP, G.K. Said report is Ex.PW2/A.
7. PW 3 is HC Rajesh Kumar who deposed that on 5.6.2004, he was posted as HC in Special Staff, South District and at about 12 noon, a secret informer came in Special Staff and told to SI Vijay Singh that one person namely Logi Dass would come alongwith his one associate at about 1 pm from the side of Lajpat Nagar and will go towards Madangir, T point for his house and If raided, he may be apprehended. Information was recorded vide DD no.6, Ex.PW3/A. After this, raiding party was constituted consisting ASI Paramjeet Singh, HC Ram Kishan, HC Phool State Vs. Logi Dass FIR no.270/04 Singh, HC Ashok, Ct. Jai Prakash, Ct. Rajveer, Ct. Vir Singh, Ct. Ramesh and himself. They reached at the spot at about 12.35 pm, public persons were asked to join the raiding party but they refused and left the spot. At about 1 pm, two persons namely Logi Dass and Kanak Ratnam got down from the bus and they started moving towards Virat Cinema on foot. On the pointing out of secret informer, accused Logi Dass was apprehended by SI Vijay Singh with the help of other police officials and accused Kanak Ratnam was apprehended by ASI Pramjeet Singh and Ct. Jai Prakash. Accused Logi Dass was having a polythene bag in his hand and on checking it was found to be containing yellow and white coloured jewellery and two mobile phones and on enquiry, he could not give any satisfactory reply pertaining to these articles. From the formal search of accused Logi Dass, one polythene packet containing brown colour powder was recovered from the upper pocket of the shirt and on enquiry, accused told that it was smack and further it was also checked with the help of kit and it was found as smack. SI Vijay Singh also gave notice u/s 50 of NDPS Act to accused Logi Dass which he refused vide his refusal Ex.PW3/B. Again, 45 passersby were asked to join the investigation but they refused. Smack recovered from accused was weighed and total smack was found 11.510 gms. Two samples each of 1 gm were taken from the recovered smack. Remaining smack and samples were converted separate into sealed parcel with the seal of VSG. FSL from was filled up. Recovered smack as well as samples and FSL form were taken into possession vide memo Ex.PW3/C, accused State Vs. Logi Dass FIR no.270/04 Logi Dass was arrested vide memoEx.PW3/E, his personal search was conducted vide memo Ex.PW3/F.
8. PW 4 is Dr. Madhulika Sharma, Assistant Director, FSL who conducted chemical examination of the property in question.
9. PW 5 is HC Shailesh who deposited the sample vide R/C no. 43/21/04, Mark 5A to FSL, Rohini. He further deposed that till the samples remained in his possession, the same were not tampered with.
10. PW 6 is Inspector Akhilesh Yadav who deposed that on 5.6.2004, he was posted in Special Staff, South. On that day, the further investigation of the case was entrusted to him. He reached at the spot i.e T point Madangir, Virat Road where SI Vijay Singh alongwith staff met him and produced some papers and briefed about the case. He prepared site plan on the instance of SI Vijay Singh, Ex.PW6/A. Thereafter accused Logi Dass was interrogated and arrested vide memo Ex.PW3/E and his personal search was carried out vide memo already Ex.PW3/F. He recorded the disclosure statement of the accused. Thereafter they went to his house alongwith the accused from where at his instance some other articles were also recovered vide memo already Ex.PW3/H. During the course of investigation he recorded the statement of witnesses. Intimation u/s 57 of NDPS Act was sent to Assistant Commissioner of Police, Greater Kailash and Assistant Commissioner of Police operation regarding the chance recovery of smack. Thereafter, accused was medically State Vs. Logi Dass FIR no.270/04 examined and after the medical examination accused was produced before SHO and on his direction put up in lock up. Thereafter, he directed Ct. Shailesh to deposit the exhibits of the case with FSL, Rohini. For remaining articles, he prepared a kalandara u/s 103 D.P. Act. During the course of investigation, he recorded the statement of witnesses and after completion of investigation prepared charge sheet.
11. This is the overall prosecution's evidence in this case.
12. After recording the evidence of this witness, the prosecution evidence was closed. The accused was examined under the provision of section 313 Criminal Procedure Code, 1973 (for short Cr.P.C). and all the incriminating evidence were put to him which he denied and answered that he has been falsely implicated and had not led defence evidence.
13. I have heard the Ld. APP for State and counsel for accused persons and perused the records of the case.
14. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused.
15. On the other hand, it has been argued by counsel for accused that accused has been falsely implicated as no public witness was joined during alleged seizure of smack which is a mandate of section 100 Cr.P.C.
16. Having dealt with the submissions advanced by both the sides, I proceed to State Vs. Logi Dass FIR no.270/04 adjudicate upon the most important question involved in the present case: whether the accused is guilty of the offence with which he is charged or not.
17. The charge against the accused is that on 5.6.2004 at about 1 pm near T point, Khanpur, Madangir road, New Delhi, he was found in possession of 11.510 gms of smack in contravention of provision of NDPS Act.
18. PW 1 WSI Birma Devi proved the FIR as Ex.PW1/A upon a rukka.
19. PW 2 Sh. Gajender Dutt deposed that on 5.6.2004 a report u/s 57 NDPS Act sent by SI Akhilesh Yadav regarding the recovery of 11.510 gms was received in the office of ACP, Greater Kailash which was diaried vide diary no. 1969, ACP, G.K. Said report is Ex.PW2/A.
20. PW 3 HC Rajesh Kumar has deposed that on 5.6.2004, he was posted as head constable in Special Staff, South District. On that day, at about 12 noon, secret informer his special staff that one person namely Logi Dass would come alongwith one of his associates from Lajpat Nagar side. The DD no. 6, Ex.PW3/A was recorded in this regard. Then accused Logi Dass alongwith other accused Kanak Ratnam got alighted from the bus and started moving towards Virat Cinema. At that time, accused Logi Dass was apprehended by SI Vijay Singh. From the formal search of accused Logi Dass, one polythene bag containing brown colour powder was recovered from his upper pocket of his shirt and on inquiry it was revealed that the same was smack, thereupon SI Vijay Singh gave notice u/s 50 of NDPS Act to accused Logi Dass State Vs. Logi Dass FIR no.270/04 informing him of his right to be searched in the presence of the Gazetted officer or Magistrate but accused declined stating that he was not in possession of any more smack. Refusal of accused Logi Dass was recorded on notice u/s 50 NDPS Act is Ex.PW3/B. Smack recovered from the accused was weighed and the same was found to be 11.510 gms. Two samples each of one gm was taken from the recovered smack and the remaining smack of 9.510 gms as well as both the samples were converted separately into sealed parcel with the seal of VSG. Recovered smack as well as samples and FSL form were taken into possession vide memo Ex.PW3/C. After registration of the case, accused Logi Dass was arrested vide arrest memo Ex.PW3/E.
21. PW 4 Dr. Madhulika Sharma, Assistant Director, FSL has deposed that on 10.6.04, one parcel alongwith the FSL form and specimen seal impression was received in their office and the same was handed over to her for chemical examination. The parcel 1 was the parcel sealed with the seals of VSG and JY and was found to contain Ex 1 kept in a polythene. Ex 1 was found to be dark brown coloured powder material stated to be smack weight approximate 1.68 gms with polythene. On chemical examination and gaschromotography examination Ex 1 contain diacetylmorphine 0.8% with polythene.
22. PW 5 HC Shailesh deposited the sample vide R/C no. 43/21/04, Mark 5A to FSL, Rohini. He further deposed that till the samples were remaining in his possession, the same were not tampered with.
State Vs. Logi Dass FIR no.270/04
23. PW 6 Inspector Akhilesh Yadav deposed that on 5.6.2004 further
investigation of the case was handed over to him following which he prepared site plan on the instance of SI Vijay Singh Ex.PW6/A. Thereafter accused Logi Dass was interrogated and arrested vide memo Ex.PW3/E and his personal search was carried out vide memo already Ex.PW3/F. He recorded the disclosure statement of the accused. During the course of investigation he recorded the statement of witnesses. Intimation u/s 57 of NDPS Act was sent to Assistant Commissioner of Police, Greater Kailash and Assistant Commissioner of Police operation regarding the chance recovery of smack. Thereafter, accused was medically examined and after the medical examination accused was produced before SHO and on his direction put up in lock up. Thereafter, he directed Ct. Shailesh to deposit the exhibits of the case with FSL, Rohini.
24. All the aforesaid witnesses were cross examined by Ld. Counsel for the accused but nothing significant came out which could impeach their testimonies. Their testimony appear to be consistent and unambiguous. PW 4 has testified to the effect that the sample Ex 1 was sent for chemical diacetylmorphine. On computation of the percentage content of heroine in the allegedly recovered substance from the accused, the percentage component works out to be 0.09208 gms which apparently falls within the ambit of a small quantity in terms of table to section 2 of the NDPS Act, 1985, in terms of serial entry no. 56 thereto which describes of the small quantity as being 5 State Vs. Logi Dass FIR no.270/04 gms. Thus, prosecution has successfully been able to bring home the charge against the accused.
25. As regards the contention of learned counsel for the accused that public witnesses were not joined, I would like to rely upon the following Judgments:
26. In Ram Hirdaya Yadav v. State of U.P 1990 it has been held that the mere fact that the prosecution witnesses are police officers is not enough to discard their evidence in the absence of their hostility to the accused.
In State of Mysore v. Koti Poojari, 1965(2) Cri. L.J 517, it is held:
"The testimony of a police witness is not liable to be rejected merely, on the ground that he belongs to the police force provided it has otherwise the characteristic of creditworthy evidence".
In Kalpana Rai v. State through C.B.I, A.I.R 1998 SC 201, it is held:
"There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinizing the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined".
In State Govt. of NCT of Delhi v. Sunil and another (2001) 1 SCC 652 it was held in the context of non joining of independent public witnesses by the police that:
"When the police do not take public witnesses in recovery and search cases, though the place is such where public witnesses may be available, then in such a situation the safest State Vs. Logi Dass FIR no.270/04 course open to a court is that it should carefully scrutinize the evidence of police witness and if there evidence is otherwise trustworthy and inspires confidence and they also do not appear to have any motive to falsely implicate the accused, there is no reason why they should not be believed. 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. The court therefore instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused".
27. The golden thread in the aforesaid Judgments is that there is no rule that in all cases public witnesses have to be joined and examined. It depends upon the facts and circumstances of the case and if otherwise the case of the prosecution is reliable and the testimony of the prosecution witnesses are unequivocal then in that case non examination of public witnesses would not be fatal to the case of the prosecution. Accused has not disputed his presence at the spot. Thus, having regard to the previous discussion accused stands convicted for offence under section 21 (a) of NDPS Act. Let he be heard on the point of sentence.
Announced in the open court (Navjeet Budhiraja)
on 5.11.2012 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Logi Dass FIR no.270/04