Delhi District Court
State vs Rajrani @ Topli on 9 January, 2013
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 05, ROOM NO. 513,
DWARKA, DELHI.
STATE
VERSUS
RAJRANI @ TOPLI
FIR No. 11/09
P.S.: Inderpuri
U/S: 21/61/85 NDPS Act
1. Serial No. of the case : 02405R0253892010
2. Date of commission of offence : 25.01.2009
3. Name of the Complainant : ASI Jagat Singh,
P.S Inderpuri, New
Delhi.
4. Name of the accused, and
her parentage and residence : Raj Rani @ Topli,
W/o Sh. Kishanlal,
R/o No. D547,
J.J Colony, Inderpuri,
New Delhi.
5. Date when judgment : 11.12.2012
was reserved
6. Date when Judgment : 09.01.2013
was pronounced
7. Offence Complained of : Section 21/61/85 NDPS Act
or proved
8. Plea of accused : Pleaded not guilty
9. Final Judgment : Convicted U/s
21/61/85 NDPS Act.
FIR No. 11/09
PS- Inderpuri
State Vs. Rajrani Page 1/18
Brief Statement of reasons for the decision of the case
1. Briefly stated the case of the prosecution is that on 25.01.2009, at about 4.20 pm in D Block pull, JJ colony, on the way leading towards Railway Bridge from Inderpuri, within the jurisdiction of PS Inderpuri, the patrolling party apprehended the accused on suspicion and found contraband substance i.e diacetylmorphine (smack powder) in the quantity of 15.890 gm and as per report, the percentage of the said substance was found to be 0.5% being a small quantity from the total quantity of recovered substance of less than 1gm from the possession of the accused. Accordingly, FIR No. 11/09, PS Inderpuri was registered. The challan was filed on 25.03.2009.
2. On appearance of the accused, a charge for the offence under Section 21(1)/61/85 of NDPS Act was framed against her to which she pleaded not guilty and claimed trial.
3. Prosecution has examined nine witnesses namely PW1 Constable Hariram, PW2 HC Kishan Singh, PW3 Inspector Hiralal, PW4 WASI Kusum, PW5 HC Mahesh Chand, PW6 HC Ishwender, PW7 Constable Majnu, PW8 ASI Jagat Singh and PW9 ASI Suraj Bhan to prove the case against the accused. The evidence of each of PWs is very relevant and the same is analyzed and discussed later on at appropriate places.
4. After the Prosecution evidence was closed the statement of FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 2/18 accused was recorded under Section 313 Cr.P.C where she denied all the allegations and stated that she has been falsely implicated. She further stated that she do not wish to lead any evidence in her defence. Thereafter, final arguments were heard.
5. Ld APP for the State and Ld counsel for the accused addressed useful and pertinent arguments. Ld. APP for the state has argued that the case property has been correctly identified by all the witnesses including the recovery witnesses and the case has been proved beyond doubt against the accused and prays for conviction of the accused.
6. On the other hand, Ld counsel for the accused submits that accused has been falsely implicated by the police and nothing was recovered. He also argued that there is no witness in whose jhuggi the search of the accused was conducted. He also pointed out that no public witness was made either to the recovery or to the arrest of the accused despite the locality is populated area. He also pointed out that the DD entry showing PW1 left from the police station at 10 am whereas PW1 stated that he left police station at 3pm. He further argued that there is no handing over memo of the seal. He prays for acquittal.
7. PROSECUTION EVIDENCE:
7.1 PW1 stated that on 25.01.2009 he alongwith HC Kishan Singh FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 3/18 were on patrolling at C block vide DD No. 19A and at about 3.45pm, ASI Jagat Singh came and shared secret information about a lady namely Topli having smack. He further stated that said information was passed to SHO who directed to raid immediately and few passersby were asked to join raid but all went away without disclosing their names and addresses and thereafter, ASI Jagat Singh prepared memo wherein secret information was noted vide Ex.
PW1/C in his presence. He also stated that WASI Kusum was called and raiding party was formed and at about 4.20 pm accused was apprehended on the pointing out of secret informer. He also stated that ASI Jagat Singh gave notice U/s 50 NDPS Act vide Ex. PW1/B to the accused and she was told if she wishes a Magistrate or Gazette Officer can be summoned in whose presence her personal search may be conducted but she refused to call any such officer. He also stated that ASI Jagat Singh asked the accused that she may firstly take search of the raiding party but she also stated to refuse the same. He further stated that WASI Kusum took the search of the accused and recovered from her right side pocket of her kurta a polythene containing brown powder which was weighed on electric scale and found to be 15.890 gms out of which 5gms was taken as sample. He has also stated his presence at the time of seal and seizure of the case property. He also stated that FSL form was prepared and case property seized vide seizure memo Ex. PW4/A. He further stated that the SHO also came at the spot at about 5.15 pm and counter sealed the pullanda with the seal of HL and handed over th seal to HC FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 4/18 Krishan Lal. He further stated that he took the rukka to PS Inderpuri and HC Kishan Lal took the pullanda of the case property and FSL from PS Inderpuri and thereafter FIR was registered. He proved that accused was arrested in his presence vide Ex. PW1/D and her personal search was conducted vide memo Ex. PW1/E in which original notice U/s 50 NDPS Act which was served upon the accused by ASI Jagat Singh was recovered. The witness identified the accused as well as the case property. The original notice recovered from the possession of the accused was also proved vide Ex. PW1/F. During cross examination he denied the suggestion that he left the police station alongwith HC Kishan Kumar at about 10 am. He admitted that the place where accused was standing was a thoroughfare and no lady from public was summoned for search of the accused. He also admitted that accused was known to them prior to the incident as she was known BC of the area but denied the suggestion that accused was called from home and nothing was recovered from from her possession and was falsely implicated.
7.2 PW2 is another member of the raiding party and he gave testimony on the lines of PW1. He is also attesting witness to seizure memo. During cross examination he stated that he did not remember the time when he alongwith Ct Hariram left the police station for patrolling but stated that they left after making departure entry. He failed to tell the colour of dress worn by the accused at the time of arrest and admitted that smack was recovered from the accused in the presence of the secret informer. He denied the suggestion that FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 5/18 accused was called in the police station on false pretext and was falsely implicated and no case property was recovered from her possession.
7.3 PW3 is the concerned SHO and stated that on 25.01.2009 he received an information from ASI Jagat Singh that Topli is having smack and therefore directed ASI Jagat Singh to immediately conduct raid. He further stated that at about 5.15 pm he reached the spot and found ASI Jagat Singh, WASI Kusum, HC Kishan Singh and Ct Hariram and the accused Raj Rani alongwith smack totalling 15.890 gms. He further stated that IO handed over the seized case property which was counter sealed by PW3 with the seal of HL. During cross examination he denied the suggestion that BC's are regularly apprehended before 26th January but admitted that they received official communication for apprehending BCs to maintain law and order. He stated that DD entries related to the present case was attached with the chargesheet and DD No. 19B pertains to departure of Beat Officers for patrolling, DD No 15A pertains to receipt of telephone regarding secret information and DD No. 20A pertains to his arrival in the police station at 7.30 pm with regard to deposit of case property in malkhana. He also denied the suggestion that nothing was recovered from the possession of the accused and she was falsely implicated and entire proceedings were done in the police station.
7.4 PW4 is the another recovery witness. She also gave testimony on the lines of PW1 and PW2. She further stated that on the FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 6/18 directions of the IO, she took the casual search of the accused and found one small transparent polythene containing brown powder like smack which was measured by the IO on electronic scale. She also stated about sealing and seizure of the case property vide Ex. PW1/A. She also stated that SHO also came at the spot and counter sealed the sample and the case property. She also stated that she conducted the personal search of the accused vide Ex. PW1/C and took accused for medical examination alongwith HC Kishan Singh to RML hospital and after medical examination put the accused in the lockup. She stated that she joined the raiding party at police booth, C block and immediately left for the spot. She also stated that on seeing the police party in police uniform, accused tried to run away as they surrounded them. She specifically stated that accused was informed about her legal rights in terms of Section 50 NDPS Act but admitted that it is not mentioned in the notice about the legal rights to summon gazette officer or Magistrate in the present case but stated that it was informed verbally by the IO. She stated that her statement was recorded in the police station after she came back but denied that nothing incriminating was recovered from the possession of the accused and accused was falsely implicated for the law and order duty before the Republic day.
7.5 PW5 proved the original intimation U/s 57 NDPS Act vide Ex. PW5/A. 7.6 PW6 is the concerned MHC(M) and stated that on 25.01.2009 while he was posted at MHC(M) Inderpuri, SHO handed over case FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 7/18 property and sample smack both sealed with the seal of JS and HL alongwith FSL form vide entry No. 1197 vide Ex. PW6/A. He further stated that on 16.01.2009, he deposited the sample smack and FSL form to FSL, Rohini vide RC No. 9/21/09 but specifically stated that as long as the case property remained in his possession, it was not tampered with. During cross examination he stated that the case property was handed over to him between 7.308.00 pm. He also admitted that the entire entry Ex. PW6/A is the verbatim record of the seizure memo. He also admitted that there is no signatures of SHO on Ex. PW6/A. 7.7 PW7 proved the departure entry of patrolling officers vide Ex. PW2/A. 7.8 PW8 is the initial IO who recovered the case property and stated that on 25.01.2009, while he was on area patrolling duty as division officer of the area reached at C Block police booth where HC Kishan Singh alongwith Ct Hariram met him and he also received secret information that one lady Topli who is in the business of selling smack is present at nala between C and D block towards railway line and having smack. He stated that he reduced the said information in writing vide Ex. PW1/C and asked some passersby to join investigation as directed by the SHO to conduct immediate raid. He stated that due to paucity of time, no person joined investigation and thereafter he called WASI Kusum at C block. He further stated that he also informed the DO regarding the secret information and therefore constituted a raiding party of secret informer, WASI Kusum, FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 8/18 Ct Hariram and HC Kishan Singh apart from him and reached at D block nala where accused Rajrani @ Topli was present and secret informer pointed towards the accused was having smack and at about 4.20 pm accused was apprehended and she was briefed about the secret information and was served notice U/s 50 NDPS Act and also intimated her regarding smack and informed about her right regarding her search before any Gazette Officer or Magistrate but the accused stated to have refused the same. He further stated that he informed the accused to take personal search of the raiding party before offering her personal but accused refused the same and thereafter, personal search of the accused was conducted by WASI Kusum and recovered the case property and one transparent polythene having brown powder was recovered which on weighing on electronic scale found to be 15.890 gms and took 5gms as sample and kept the same in plastic bag and prepared pullanda with the help of white cloth and sealed with seal of JS. He also stated that remaining case property was kept in same polythene in which it was recovered and pullanda was prepared with the help of white cloth and sealed with the seal of JS and form FSL was filled at the spot and sealed the same with seal of JS. He also proved the seizure of the case property and handing over of seal to Ct Hariram and stated that at about 5.15 pm Inspector Hiralal came to whom the case property, sample and FSL form alongwith carbon copy of seizure memo was handed over and he counter sealed the same with the seal of HL and then left the spot. He further stated that thereafter he prepared rukka FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 9/18 vide Ex. PW8/A and he handed over to Ct Hariram for registration of FIR and at about 7.30/7.35 pm Ct Hariram alongwith ASI Suraj Bhan came at the spot and he handed over the accused alongwith the original seizure memo to ASI Suraj Bhan and briefed the same and ASI Suraj Bhan prepared the site plan at his instance vide Ex. PW8/B and also recorded his statement. During cross examination he admitted that the secret information Ex. PW1/C was sent to the police station. He also admitted that accused was known to him being BC of the area. He admitted that he has not seized the blouse/ shirt of the accused. He denied the suggestion that WASI Kusum did not conducted the complete search and stated that search was completed by ASI Kusum after taking the accused in nearby house. He admitted that Ex. PW8/A was prepared after SHO left the spot but denied the suggestion that no smack was recovered from the possession of the accused and she was falsely implicated. He admitted that in the notice U/s 50 NDPS Act he has not mentioned the legal right of the accused but denied the suggestion that no recovery was effected from the accused and she was known to them previously.
7.9 PW9 is the second IO. He stated that on 25.01.2009 Ct Hariram handed over the copy of FIR and original rukka for investigation and thereafter he alongwith Ct Hariram reached the spot where accused was present and ASI Jagat Singh handed over to him the accused alongwith the seizure memo. He stated that the site plan was prepared at the instance of ASI Jagat Singh and he directed ASI FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 10/18 Kusum to conduct the personal search of the accused in which one original notice U/s 50 NDPS Act was recovered. He further stated that he sent the accused alongwith WASI Kusum and HC Kishan Singh to RML hospital for medical examination. He also stated that on 25.01.2009 he sent an intimation U/s 57 NDPS Act Ex. PW5/A to the ACP concerned and on 16.02.2009, he sent HC Ishwender alongwith sample for depositing the same in FSL and prepared challan and filed the same. During cross examination he stated that he did not make departure entry and DO himself have made the same. He denied the suggestion that he did not met WASI Kusum and HC Kishan Singh and recorded statements in the police station. He admitted that he has not seized the shirt of the accused but stated that it was having two pockets. He denied the suggestion that accused was falsely implicated in the present case and was known to them prior to the incident.
8. Seizure proved beyond doubt: All the witnesses have stated that the case property was recovered from the accused and correctly identified her as well as the case property which was proved in duly sealed condition.
9. Whether link evidence is available: PW6 is MHC(M). He categorically stated that he received the case property from the SHO and deposited the same and stated that as long as the case property remained in his possession, it was not tampered with. He has also FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 11/18 stated that he deposited the sample smack alongwith FSL form to FSL, Rohini. The report of FSL was tendered by Ld APP for the State. As per the result of examination, the sample which was shown as Ex. R1 in the report was found be containing Paracetamol, caffeine, Acetylcodeine, Monoacetymorphine, Diacetylmorphine and Alprazolam. It was further mentioned the percentage of Diacetylmorphine and Alprazolam was 0.5% and 5.74% respectively.
10. Absence of Public Witnesses: Although, no public witness have been joined in the investigation, however, the said fact itself cannot be a ground for rejecting the unimpeached testimony of the PWs.
In Suder Singh v. State of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated.
In Radha Kishan vs. State of Uttar Pradesh, 1963 SC 822, it is held that irregularity in a search would , however, cast a duty upon the Court to scrutinise the evidence regarding the search very carefully.
In Matajog Dubey v. H.C. Bahri, AIR 1956 SC 44 it is held that when the statutory provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 12/18 such circumstance which made it impossible for it to comply with these provisions. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
There is no reason to doubt the testimony of PWs merely because they are police personnel. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 SC 1311;
"........The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acThe provisions of Sec. 55 NDPS Act have also been duly complied with during the course of investigation of the present case. The relevant witnesses examined by the prosecution to this effect are PW1, PW2, PW3,PW6, PW7 and PW8. As per the testimony of PW 6 Two pulandas containing the samples drawn from the recovered substance and containing the remaining recovered substance, tts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 13/18 suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down....."
11. The counsel for accused has failed to point out any such discrepancy in the testimony of official witnesses to disbelieve them. It has been held in Catina of Judgments by the Hon'ble Apex Court as well as by our own High Court that the testimony of official witnesses cannot be disrespected unless there are material discrepancies in their testimonies and as such they need to be corroborated by independent evidence. However, in the present case there is nothing on record to disbelieve the testimony of the official witnesses or which makes it necessary to seek independent corroboration from the public witnesses. No such material contradictions in the testimony of the official witnesses have been pointed out by the counsel of the accused so as to say that the testimony of official witnesses does not inspire credence and requires independent corroboration.
12. It is held by the Hon'ble Apex Court in the case of "State of U.P Vs. Krishna Master & Ors reported in AIR 2010 Supreme Court 3071 that:
"Minor discrepancies on trivial matters not touching the core of the case, hyper technical FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 14/18 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. '' It is further held that "The provisions of Sec. 55 NDPS Act have also been duly complied with during the course of investigation of the present case. The relevant witnesses examined by the prosecution to this effect are PW1, PW2, PW3,PW6, PW7 and PW8. As per the testimony of PW6 Two pulandas containing the samples drawn from the recovered substance and containing the remaining recovered substance, the 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. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 15/18 time''.
13. Thus, in the facts and circumstances of the present case, the contradictions and discrepancies pointed out by the defence counsel in the present case, in my opinion are not touching the core of the case and cannot be a ground for rejection of the evidence of the official witnesses in entirety without independent corroboration. As such, nonjoining of the public witnesses is not fatal to the prosecution.
14. In the present case no reason has been assigned by the accused as to why she would be falsely implicated by the police officials. Sec. 35 and Sec. 54 NDPS Act raises presumption with regard to the culpable mental state on the part of the accused and also place burden on the accused to rebut such presumption. However, the bare perusal of such provision clearly shows that presumption would operate only in the event of circumstances contained therein are fully satisfied, only then the legal burden would shift. With a view to bring within the preview of provisions of Sec. 54 NDPS Act, element of possession of the contraband is essential so as to shift the burden on the accused. The provisions of Sec. 55 NDPS Act have also been duly complied with during the course of investigation of the present case. The relevant witnesses examined by the prosecution to this effect are PW1, PW2, PW3, PW4, PW8 and PW9. As per the testimony of witnesses, she was found in conscious possession of smack and now FIR No. 11/09 PS- Inderpuri State Vs. Rajrani Page 16/18 the legal burden shifted upon the accused to rebut the said presumption. However, accused has failed to rebut the presumption raised against her. It is not only through the defence evidence that the presumption raised U/s 35 & 54 NDPS Act which could be rebutted but this could be done through the cross examination of the prosecution witnesses as well but the accused has failed to rebut the said presumption. Similarly, the provisions of Sec. 57 NDPS has also been complied with which facts stands proved vide the testimony of PW5 and PW9 as he testified that he had prepared the report about arrest and seizure and complied with the provisions of Sec. 57 NDPS Act vide intimation to ACP vide Ex. PW5/A which was forwarded by him to the ACP.
15. Now it is to be seen as to whether the recovered substance from the accused was smack. To this effect, the report of chemical examiner was tendered in evidence by the Ld. APP for the State as the same is admissible as per section 293 Cr.P.C. The report was not contradicted by the accused.
16. In the light of above discussion and the evidence on record, I am of the considered view that the prosecution has successfully proved the case against the accused beyond reasonable doubt and no probable defence was put forth by her. Simply claiming false implication does not discharge her burden.
FIR No. 11/09PS- Inderpuri State Vs. Rajrani Page 17/18
17. Accordingly, the accused is convicted for the offence under Section 21/61/85 NDPS Act. Put up for arguments on sentencing on 16.02.2013 at 2.00 pm. Copy of the judgment be given free of cost to the convict.
ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT)
COURT ON 09.01.2013 METROPOLITAN MAGISTRATE05
DWARKA COURTS, DELHI.
FIR No. 11/09
PS- Inderpuri
State Vs. Rajrani Page 18/18