Delhi District Court
State vs . Mohd. Amir on 23 February, 2010
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS):OUTER DISTRICT
ROHINI COURTS:DELHI
SC No.: 116N/08
STATE VS. MOHD. AMIR
S/o Sh. Mohd. Khalil,
R/o 1959, J.J. Colony,
Bawana, Delhi.
FIR No.: 48/08
PS: Narcotics Branch
Under Sec. 21 of NDPS Act
Date of Institution: 01.07.08
Date of conclusion of Arguments: 02.02.10
Date of pronouncement of Judgment:23.02.10
JUDGMENT
1 Accused Mohd. Amir has been chargesheeted by PS Narcotics Branch for commission of offence under Section 21 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act') 2 Case of the prosecution, briefly stated, is to the effect that on 03.05.08, SI Rajbir Singh was present at PS Narcotics Branch and a secret informer came there at 8 am and gave information that one person with the name of Mohd. Amir could be apprehended that day with smack. Secret informer was produced before SHO/Inspector M.C. Katoch. He also satisfied himself FIR No.: 48/08, PS: Narcotics Branch page 1 of 17 about the credentials of information and then informed ACP Narcotics Branch who directed him to take immediate legal action. A raiding party was accordingly prepared. All the members of the raiding party reached at the spot. Nakabandi was laid. At about 10:40 am, accused was found coming on foot from Bawana Nehar Pul (Bawana Canal Bridge) direction. Secret informer identified accused and then left the spot. Accused was overpowered. He was apprised about the information and also apprised about his legal rights. Notice u/s 50 NPDS Act was also prepared and served upon him. He, however, refused to avail his legal rights. Public persons also did not join the investigation despite the fact that they were requested in this regard. Accused was searched and one transparent momi thaili was recovered from the right pocket of his wearing pants. The contents of said transparent thaili were tested with the help of Field Testing Kit and were found to be heroine. Total weight of said heroine was found to be 35 grams. Two samples of 5 grams each were drawn. Separate pullandas were prepared and duly sealed at the spot. Requisite documentation was also done at the spot. Since the possession of smack was illegal and unlawful, it is in these circumstances that the accused has been arrested and charge sheeted.
FIR No.: 48/08, PS: Narcotics Branch page 2
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3 Chargesheet was received by this court on 01.07.08 and
vide order dated 07.08.08, accused was charged u/s 21 of NDPS Act.
4 Prosecution was directed to adduce evidence and has examined nine witnesses viz. PW1 ASI Devender (Second IO), PW2 HC Mahesh Kumar (MHC(M)), PW3 Ct. Charan Singh (recovery witness), PW4 HC Karuna Karan Nair (official from ACP office), PW5 HC Dilbagh Singh (Duty Officer), PW6 HC Ishwar Singh (official who had taken the sample pullanda to FSL), PW7 Inspector M.C. Katoch (the then SHO, PS Narcotics Branch), PW8 ASI Rajveer Singh (recovery witness) and PW9 SI Rajbir Singh (First IO) 5 Accused, in his statement u/s 313 Cr.P.C., pleaded innocence and claimed that nothing was recovered from him. He rather contended that he was picked up from his house and falsely implicated in the matter.
6 Accused has also examined his wife Shakurun as DW1 in order to show that he has been falsely implicated.
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7 I have heard Ms. Purnima Gupta, Ld. Additional Public
Prosecutor and Sh. R.S. Gupta, Ld. defence counsel for accused and carefully perused the entire material available on record. 8 Ms. Purnima Gupta has contended that the prosecution has been able to prove its case to the hilt. She has argued that all the material recovery witnesses have entered into witness box and have fully supported the case of prosecution and have corroborated each other on each and every aspect of the case. She has also argued that all the requisite documents have been duly proved and the case property has also been duly proved and identified during the trial and there is nothing to disbelieve the recovery. She has also argued that all the links have also been duly proved by the prosecution.
9 Sh. R.S. Gupta, Ld. defence counsel has, on the other hand, contended that accused has been falsely implicated. He has argued that there is no justification as to why independent persons were not joined in the investigation. He has also argued that there are material contradictions amongst the testimony of the recovery witnesses. He has contended that entire writing work was done while sitting at the PS and nothing was recovered FIR No.: 48/08, PS: Narcotics Branch page 4 of 17 from the accused. He has also contended that the identity of the sample is not free from doubt as it is not made clear by the prosecution whether the FSL Form was also forwarded to forensic laboratory along with sample pullanda. He has also argued that the SHO was not justified in retaining his seal and such fact has also resulted in serious miscarriage of justice. 10 I have given my thoughtful consideration to the rival contentions and scanned the record very carefully. 11 It all started with the secret information that had been received in the PS by SI Rajbir Singh. Testimony of PW9 SI Rajbir Singh is, therefore, of utmost importance. I have seen the same very carefully. He has deposed that on 03.05.08 at about 8 am, a secret informer came to his office and told him that one person with the name of Amir, who was a resident of J.J. Colony, Bawana and who used to supply heroine in bulk and in retail, would come between 10:30 am to 11:30 am that day for the supply of heroine to some one at Gate of Vaternity Hospital, Bawana and could be apprehended with heroine, if raided. He further deposed that after satisfying himself, the informer was produced before Inspector/SHO M.C. Katoch and he also satisfied himself and then FIR No.: 48/08, PS: Narcotics Branch page 5 of 17 ACP Sh. M.S. Dabas was informed immediately who directed to take immediate legal action. Secret information was reduced immediately in writing vide DD No. 6A. DD No. 6A has been duly proved as Ex.PW4/B. It was immediately produced before Inspector M.C. Katoch and Inspector M.C. Katoch forwarded the same to ACP Narcotics Branch for necessary information. I have seen the connecting evidence in this regard. PW7 Inspector M.C. Katoch has also supported the version of SI Rajbir Singh and deposed that informer was produced before him and he had informed the ACP telephonically. He also deposed that DD No. 6A was sent to the office of ACP and ACP had seen the same and signed the same. Signatures of ACP are also of the same date i.e. 03.05.08. Thus secret information was immediately reduced in writing and was brought to the notice of senior police officials immediately without any delay whatsoever which reflects transparency.
12 PW9 SI Rajbir Singh has further deposed that raiding party was prepared which consisted of he himself, HC Rajveer Singh and Ct. Charan Singh. He also deposed that he had taken with him IO Bag, Electronic Weighing Machine and Field Testing Kit. All the police officials had left the PS at about 8:45 am vide DD FIR No.: 48/08, PS: Narcotics Branch page 6 of 17 No. 7A and they reached at Vaternity Hospital, Bawana. SI Rajbir has further deposed that members of the raiding party were briefed by him and government vehicle was parked at the same side of hospital and driver Ct. Satyaveer was asked to reach at the spot when signaled. He further deposed that they waited for the arrival of accused and at 10:40 am from the side of nehar pul, accused was seen coming on foot. He has also given the description of wearing clothes of the accused and he also deposed that accused was identified by informer and immediately thereafter informer left the spot. He also deposed that accused came at the gate of Vaternity Hospital and started waiting for someone for 45 minutes and as soon as he started to move back, he was apprehended with the help of other staff. He also deposed that accused was apprised about information and they had also given their identification to the accused and accused was also apprised about his legal right that before his search, he could call or could be produced before any Gazetted Officer or Magistrate for his search and he was also told about the meaning and connotation of word 'Gazetted Officer'. So much so, accused was also offered with the search of police party and the govt. vehicle before his search. Notice u/s 50 NDPS Act was prepared and the carbon copy of notice was served upon accused and the contents FIR No.: 48/08, PS: Narcotics Branch page 7 of 17 of notice were read over to the accused. Notice has been proved as Ex.PW3/A and the refusal endorsement of accused has been proved as Ex.PW3/B. SI Rajbir Singh has also deposed since the accused was found illiterate, the reply was written by him and the reply was duly read over to accused. Thus, there is found to be requisite compliance of Section 50 NDPS act as well. Accused was duly apprised about his legal rights. Written notice as well as oral testimony clearly indicates the compliance of Section 50 NDPS Act. Moreover, the other two recovery witnesses i.e. PW3 and PW have also deposed in the similar manner before the court. 13 PW9 SI Rajbir Singh has further deposed that accused was searched and from the right side pocket of the wearing pants of accused, one polythene was recovered whose mouth was covered with rubber band and the content of the polythene was checked by him with the help of Field Testing Kit and it was found to be heroine. He also deposed that recovered substance was of matmaila (dusty) color and recovered heroine was weighed with polythene and the weight was found to be 35 grams. He has also deposed regarding drawing of sample. He has also deposed that he had put his seal of '2A PS NB DELHI' on all the pullandas and FSL Form and sample pullandas were given serial no. Mark A and FIR No.: 48/08, PS: Narcotics Branch page 8 of 17 Mark B and the remaining heroine of 25 grams, which was separately packed and sealed, was given serial no. Mark C. He also deposed that seal, after use, was handed over to SI Rajbir Singh. He also proved the seizure memo Ex.PW3/C. He then prepared rukka and handed over the same to Ct. Charan Singh. Ct. Charan was also given all the pullandas, FSL Form and copy of seizure memo with direction to handed over rukka to Duty Officer and remaining articles to SHO. It becomes apparent from the testimony of Ct. Charan Singh that he did the same. PW3 Ct. Charan Singh has categorically deposed before the court that he hand over the rukka to Duty Officer and the case property i.e. all the pullandas, FSL Form and copy of seizure memo to SHO M.C. Katoch. PW5 HC Dilbagh Singh was posted as Duty Officer at the relevant time and has supported the case of prosecution in this regard and his testimony is unrebutted. Admittedly, PW7 Inspector M.C. Katoch had been handed over the case property by PW3 Ct. Charan Singh but he did not say so precisely. According to him, the case property was produced by SI Rajbir Singh. As per the case of prosecution, the case property was handed over to Inspector M.C. Katoch by Ct. Charan Singh and not by SI Rajbir Singh. Error in this regard seems to be typographical or else the wrong fact has been deposed due to lapse of time. Fact, however, FIR No.: 48/08, PS: Narcotics Branch page 9 of 17 remains that prosecution should have got the aforesaid fact duly clarified. I have the benefit of going through DD No. 13A which had been duly proved as Ex.PW5/A. It was duly proved by the concerned Duty Officer and the testimony of Duty Officer is also unrebutted. It has been categorically mentioned therein that the case property had been brought to PS by Ct. Charan Singh along with driver Ct. Satyaveer in official vehicle no. DL1C H 0617 and the rukka was handed over to him (Duty Officer HC Dilbagh Singh) and as per the instructions of SHO, further investigation was handed over to ASI Devender. There is DD No. 14A as well and according to such DD lodged by none other then Inspector M.C. Katoch, case property was handed over to him by none other then Ct. Charan Singh. The aforesaid error appearing in oral testimony, therefore, does not create any suspicion in the case of prosecution at all.
14 Inspector M.C. Katoch had called MHC(M) in his room and deposited the case property in the malkhanna and deposed that before depositing the same, he had also put his seal of '1SHO NBR DELHI' on all the pullandas and FSL Form and he had also mentioned the FIR Number on all the pullandas, FLS Form and carbon copy of seizure memo and signed the same. MHC(M) HC FIR No.: 48/08, PS: Narcotics Branch page 10 of 17 Mahesh Kumar has also graced the witness box and he has also supported the case of prosecution in toto and relevant entry maintained in register no. 19 has been proved as Ex.PW10/A. Further investigation was conducted by PW1 ASI Devender and I have seen his deposition as well. He has duly proved the arrest memo, personal search memo, disclosure statement and site plan. He has also deposed that from the personal search of accused, carbon copy of notice u/s 50 NDPS Act had also been recovered. After the arrest of accused, reports u/s 57 NDPS Act were prepared and were duly forwarded to ACP office through the concerned SHO. Report regarding seizure of heroine has been proved as Ex.PW4/E and report regarding arrest of accused has been duly proved as Ex.PW4/G. Relevant daak entries have also been duly proved.
15 Sample was taken to FSL by PW6 HC Ishwar Singh and his testimony is also unrebutted.
16 Sh. Gupta has argued that there is no justification as to why the investigating agency failed to join any independent person. He has contended that there is a distance of more than 35 km between PS and the alleged spot recovery. He has also argued FIR No.: 48/08, PS: Narcotics Branch page 11 of 17 that the police party had allegedly left the PS at 8:45 am and had reached at the spot at 10:15 am and they had all the time in the world to join the independent persons in order to show transparency. I do not dispute the genuineness of his contention. It would have certainly better had the public persons been joined in the investigation. But police can only persuade and appeal to the general public. People cannot be coerced or pressurized to join the investigation. It is required to be seen whether any effort was made in this direction or not. PW9 SI Rajbir Singh has categorically deposed that en route, he had asked 5 passengers at Mukarba Chowk and at the spot also, five passersby were requested to join the investigation but none agreed and left without disclosing their names and addresses. He has also deposed that when accused was served with notice and was apprehended. 8/10 public persons had collected at the spot and even those persons were also requested to join. Thus the efforts were made but since public were not inclined to oblige, without wasting any further time, necessary investigation was carried out. Simply because the public persons did not oblige the police party, the prosecution case cannot be thrown away or disbelieved more so when there is no material contradiction amongst the testimony of recovery witnesses.
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17 Sh. R. S. Gupta has argued that the witnesses are not clear
whether the Vaternity Hospital was operational or non operational. He has argued that it is also not clear whether the market was situated near the spot or not. He has also argued that it is not clear whether the recovery took place within 5/7 minutes of apprehension or within 30 minutes. However, I am of view that such type of minor and insignificant contradictions are bound to appear in every criminal trial. There would not be any criminal trial which would be free from such tiny contradictions. The court is only supposed to see whether the contradiction is material or immaterial. The contradictions, pointed out by the defence really, do not go to the root of the matter and, therefore, does not make the prosecution story doubtful.
18 Sh. Gupta has further argued that the SHO was not justified in retaining his seal. He has expressed his surprise over this fact and has claimed that it has created a doubt in the genuineness of the case. It does not seem to be so. Immediately after the seal was put by SHO, he had handed over the case property to the concerned MHC(M) and PW2 HC Mahesh Kumar has categorically deposed that Inspector M.C. Katoch had called him in his room along with register no. 19 and handed him over all the three FIR No.: 48/08, PS: Narcotics Branch page 13 of 17 pullandas, FSL Form and carbon copy of seizure memo and pullandas and FSL Form were having seals of '2APS NB DELHI' and '1SHO NBR DELHI'. Things might have been different had the SHO been retaining his seal as well as the case property. However, immediately after affixation of seal, he had handed over the case property to malkhanna incharge and, therefore, there was no chance of any tampering whatsoever.
19 Sample was taken to FSL by PW3 Ct. Charan Singh and he has also categorically deposed before the court that he had taken the pullanda Mark A having seals of '2APS NB DELHI' and '1SHO NBR DELHI'. He has also deposed that he had deposited the sample and FSL Form with and obtained the acknowledgment from FSL and as long as the case property remained with him, no one tampered with the same. Road Certificate has also been duly proved as Ex.PW2/C and the acknowledgment given by FSL has also been duly proved as Ex.PW2/D. Testimony of HC Ishwar Singh is also unrebutted.
20 Sh. Gupta has further argued that as far as SI Rajbir Singh is concerned, seal was returned to him after 15 days of the recovery. He has argued that no seal movement register has been FIR No.: 48/08, PS: Narcotics Branch page 14 of 17 shown and proved and no memo was prepared either at the time of handing over of seal and return of seal and there is chance of tampering with the case property. Admittedly, there is no such memo but the preparation of memo is not mandatory or compulsory. Moreover, it becomes very much apparent from my aforesaid discussion that the case property was even otherwise with MHC(M). Even if the seal was with the First IO or with the SHO, there was no chance of tampering with the case property as they had no access to the case property which was inaccessible as the same was with MHC(M).
21 I have seen the report of FSL which is even otherwise per se admissible in evidence Act. As per such report Ex.C1, besides Diacetylmorphine and Phenobarbitol even Paracetamol and Caffeine was noticed in the recovered substance. However, on Gas Chromatography examination, Diacetylmorphine and Phenobarbitol were found to be 7.32 % and 3.82 % respectively. 22 Defence evidence i.e. testimony of wife of accused does not inspire any confidence as even otherwise even if her husband had been picked up in an illegal manner, she should have immediately reported the matter to the higher authorities but nothing of that FIR No.: 48/08, PS: Narcotics Branch page 15 of 17 sort was done.
23 In view of my aforesaid discussion, I do not find any infirmity in the case of prosecution. It is resultantly held that prosecution has been able to prove its case beyond shadow of doubt. All the vital links are found to be there and duly proved as well. It is also duly proved that case property was duly sent to PS from spot through Ct. Charan Singh after the SHO had affixed his seal, the case property was with MHC(M) and sample was sent to FSL along with FSL Form. As per the convincing testimony on record, I do not find any chance of tampering with the case property by any of the witnesses. It also becomes very much clear that even the FSL Form was duly forwarded to FSL along with sample pullanda.
24 Accused has been found in possession of 35 grams of smack. Date of commission of offence is 03.05.08 and as per the settled legal position of law prevalent at the time of commission of offence, the percentage of diacetylmorphine is required to be extrapolated in order to ascertain whether the quantity is small quantity or otherwise. It happens to be the case of small quantity FIR No.: 48/08, PS: Narcotics Branch page 16 of 17 which is upto 5 grams. Accordingly, accused Mohd. Amir is hereby held guilty and convicted under Section 21 (a)of NDPS Act.
Announced in the open court on this 23th day of February, 2010.
(MANOJ JAIN)
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
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