Delhi District Court
Karamjit Singh vs State ( Air 2003 Sc 1311) Hon'Ble on 28 May, 2016
1
IN THE COURT OF MS SHAIL JAIN: SPECIAL JUDGE:
NDPS: 02: CENTRAL DISTRICT: TIS HAZARI :
DELHI
SC NO. 03/15
STATE
versus
Ram Varksh
s/o Sh Sita Ram
r/o E355, Paschimi Karawal Nagar
Delhi.
FIR No. :120/14
Offence U/S : 9A/25A NDPS Act
Police Station : Crime Branch
DATE OF INSTITUTION: 15/01/2015
DATE OF JUDGMENT:28/05/2016
JUDGMENT
1. As per prosecution case, on 18/11/2014 at about 3.50 p.m, near Nigam Bodh Ghat Gate, Delhi, accused Ram Varksh was found in conscious possession of 3 kg 400 grams of Pseudo Ephedrine substance in contravention of order under section 9A NDPS Act. The accused was arrested and 1 2 after completion of investigation, the charge sheet was filed.
2. Accused was charged for the offense u/s 25A read with section 9A NDPS Act, to which accused pleaded not guilty and claimed trial.
3. Prosecution had examined 11 witnesses in all to prove the case against the accused. The substance of the prosecution evidence is as follows:
4. PW1 Inspector Vivek Pathak has deposed that on 18/11/2014 SI Sanjay Neolia along with informer came to his office and informed that one person namely Ram Varkash who is resident of Karawal Nagar is indulged in sale and supply of Pseudo ephedrine. He further informed that on that date also Ram Varkash would come between 3.30 to 4 p.m near Nigam Bodh Ghat, Ring Road to deliver a consignment of Pseudo ephedrine to someone. If raid is conducted, he can be apprehended with the contraband. He made inquiries from the informer and after satisfying himself, he informed ACP Sh R. K. Tyagi who ordered to 2 3 conduct raid and take legal action. SI Sanjay Neolia lodged DD no 14 at 2.20 p.m regarding secret information and produced the copy of the same to him which he forwarded to ACP( N & CP). On his directions SI Sanjay Neolia constituted a raiding party comprising of himself, HC Rajiv, Ct Manoj. IO also took IO bag, field testing kit and electronic weighing machine and left in govt vehicle no. DL1CM4228 driven by HC Bharat. They left at 2.45 p.m vide DD no 15. They also took informer with them. On 19/11/2014 at about 2.45 a.m SI Shiv Darshan along with accused Ram Varkash came to his office. He made inquiries from the accused. On the same day SI Sanjay Neolia and SI Shiv Darshan produced special reports u/s 57 NDPS Act regarding seizure of 3 kg 400 grams of Pseudo ephedrine and arrest of accused which he forwarded to ACP ( N & CP).
5. PW2 HC Praveen Kumar has deposed that on 18/11/2014, on the basis of the rukka, he has registered FIR of present case. He has proved the copy of the same as 3 4 Ex.PW2/A.
6. PW3 HC Rambhool has deposed that on 18/11/14, copy of DD number 14 dt. 18/11/14 , Narcotic Cell Kotwali duly forwarded by Inspector Vivek Pathak, was received in the office of ACP Narcotics Cell vide diary no. 2843 dated 18/11/14, same was put up before ACP and he after going through the same signed the same. Said DD is Ex PW3/A signed by ACP at point A and the copy of the diary where at serial no. 2843 the receipt of the same is mentioned is Ex. PW3/B. On the next day ie 19/11/2014 , two special reports under section 57 NDPS Act regarding seizure of 3 kg 400 grams of pseudo ephedrine sent by SI Sanjay Neolia, duly forwarded by Inspector Vivek Pathak, Narcotic cell and another special report under section 57 NDPS Act regarding arrest of accused Ram Varkash sent by SI Shiv Darshan duly forwarded by Inspector Narcotic Cell were received in the office of ACP, Narcotic cell vide diary no. 2859 and 2860 respectively. Same were put before the ACP and he after going through the same signed the same. Said 4 5 diary entries are collectively exhibited as Ex. PW3/E, (OSR). Reports u/s 57 NDPS Act are Ex.PW3/C and Ex.PW3/D.
7. PW4 HC Jag Narain has deposed that on 18/11/14 he was posted at PS Crime Branch as MHC (M). On that date at about 7.45 p.m, SHO Crime Branch Inspector Manjit Tomar called him in his office along with register no. 19 and handed over to him three cloth pulandas marked as A, B and C along with FSL form and carbon copy of seizure memo. Pullandas and FSL form were having the seal of 7APS NB DELHI and MT. He deposited above mentioned articles in the Malkhana and made entry at Sl No. 2277 in register no. 19. Inspector Manjit Tomar put his signatures in the relevant column of register no. 19. Copy of the same is Ex.PW4/A. On the same day, SI Shiv Darshan arrived at the malkhana and deposited personal search article of Ram Varkash at Serial no. 2278 Photocopy of the same is Ex.PW4/B. On 20/11/14 as per the instructions of SHO, he handed over one pullanda mark A in sealed condition 5 6 along with FSL form/Forwarding letter to HC Mukesh vide RC no. 387/21/14 for depositing the same at FSL, Rohini. After depositing the pullanda and documents HC Mukesh returned to him one copy of RC along with copy of acknowledgment of FSL. Photocopy of RC is Ex.PW4/C. Acknowledgment of FSL is Ex.PW4/D. On 31/12/14 Ct Satender deposited one pulanda sealed with the seal of FSL and result of FSL. Pullanda was deposited in the malkhana and result was handed over to the IO and entry was made in this regard in register no. 19.
8. PW5 HC Mukesh Kumar has deposed that on 20/11/2014 on the instructions of SI Shiv Darshan, he collected one sealed pulanda mark A, sealed with the seal of 7APS NB DELHI and MT, one FSL form bearing same seals impression and other documents ie FIR and RC no. 387/21 from HC Jag Narain, MHCM, PS Crime Branch. He took the pulanda and documents to FSL Rohini. He deposited the pulanda and documents with FSL Rohini and received the RC along with acknowledgment receipt from 6 7 FSL Rohini and delivered the same to the MHCM PS Crime Branch.
9. PW6 Inspector Manjit Tomar has deposed that on 18/11/14 Ct Manoj came to his office and handed over three sealed pulandas along with carbon copy of seizure memo and FSL form. Pulandas were marked as A, B and C and were sealed with the seal of 7APS NB DELHI. Speciman seal of 7APS NB DELHI was also affixed on FSL form. After checking the pulandas and documents, he counter sealed the pulandas with his seals of MT and also affixed his seal of MT on FSL form. After obtaining the FIR No. from duty officer, he put the FIR No. and his signatures on pulandas, carbon copy of seizure memo and FSL form. He called MHCM along with register no. 19. and deposited the pulandas along with documents with Malkhana and signed the register no. 19. I made DD no. 19 in this respect.
10. PW7 ACP Sh Ravinder Kumar Tyagi has deposed that on 18/11/14, Inspector Vivek Pathak of narcotic cell telephonically informed him about the secret information 7 8 received in narcotic cell. He directed Inspector Vivek Pathak to verify the facts and conduct the raid. The copy of DD number 14 was put up before him, the same was forwarded by Inspector Vivek Pathak and prepared by SI Sanjay Neolia Narcotic Cell. After going through the same he signed the same at point A. On the next day , two special reports under section 57 NDPS Act, one regarding seizure of 3kg and 400 grams of Pseudo Ephedrine prepared by SI Sanjay Neolia and another special report under section 57 NDPS Act regarding arrest of accused Ram Varkash sent by SI Shiv Darshan, both duly forwarded by Inspector Narcotic Cell were received in his office vide diary no 2859 and 2860 respectively. Copies of the reports u/s 57 NDPS Act are exhibited as Ex.PW3/C and Ex.PW3/D. Same were put before him and after going through the same, he signed the same. Copy of Diary entry 2859 and 2860 are collectively exhibited as Ex.PW3/E.
11. PW8 Ct Manoj & PW10 HC Rajiv were the member of the raiding party. They have deposed in detail about the 8 9 recovery of contraband from the possession of accused.
12. PW9 SI Shiv Darshan is second IO of the present case. He has deposed that on 18.11.2014, further investigation of the case was assigned to him. He left narcotics cell office and reached at the spot where SI Sanjay Neolia and HC Rajiv along with accused Ram Varkash met him. First IO produced the documents and accused before him. He prepared site plan at the instance of first IO, which is Ex. PW9/A. He made inquiries from the accused. Accused was arrested vide memo Ex. PW9/B. He conducted personal search of accused vide personal search memo Ex. PW9/. He interrogated accused and recorded his disclosure statement (Ex. PW9/D). He deposited the personal search articles of accused with MHC(M). Accused was produced before Inspector Vivek Pathak. On the next day, he prepared report u/s 57 NDPS Act (Ex. PW9/E) & produced the same before Reader to Inspector Vivek Pathak. On 20.11.2014 itself the samples were deposited at FSL Rohini through HC Mukesh and later on FSL result was received. 9 10 FSL Result is Ex. PX. After completion of investigation, he prepared charge sheet.
13. PW10 SI Sanjay Neolia (it should be read as PW11) has deposed that on 18.11.2014, one secret informer came to his office and stated that one person namely Ram Varkash , r/o Karawal Nagar,Delhi use to supply pseudo ephedrine in Delhi and today he would come at Nigam Bodh Ghat, Yamuna Bazaar, between 3.30 pm and 4pm, to deliver pseudo ephedrine and he can be arrested if raid is conducted. He satisfied himself about the information and thereafter he produced the secret informer before Inspector Vivek Pathak who also inquired from the secret informer and thereafter he informed ACP Ravinder Kumar Tyagi regarding the same who directed to take further necessary action. He recorded DD no. 14 ( Ex. PW3/A) in this regard and produced the same before Inspector Vivek Pathak . He constituted a raiding party consisting of himself, HC Rajiv and Ct. Manoj along with secret informer and made departure entry DD no. 15, vide Ex. PW10/A. 10 11 All the police officials along with secret informer started from the office at about 2.45PM in government gypsy no.DL1CM4228 which was being driven by HC Bharat Singh . They reached at the spot i.e. Nigam Bodh ghat at about 3.15PM. On the way, he had requested 5 persons to join the raiding party by telling them facts of secret information but they did not join. At about 3.40PM , one person who was having a khaki colour bag in his right hand was found coming on foot from ISBT Side . Secret informer on seeing that person identified him as accused Ram Varksh and thereafter secret informer went away from there. That person stood near the gate of Nigam Bodh Ghat and he waited for about 10 minutes for someone. Thereafter, he started walking from there. At his directions, all the police officials apprehended that person at about 3.50PM and on inquiry his name revealed as Ram Varksh. He gave signal to HC Bharat and accordingly HC Bharat brought the aforesaid government gypsy at the spot. He introduced himself and members of raiding party to the 11 12 accused. He informed the accused regarding the secret information that there is a possibility of recovery of pseudo ephedrine from him and for that purpose his search is required to be taken. He informed accused regarding his legal right to the effect that some gazetted officer/magistrate may be called at the spot and his search may be taken in their presence. He also informed the accused regarding his legal right to the effect that he can take search of police official and search of the vehicle before his search is taken out but accused refused for the same.
14. Thereafter witness prepared notice under section 50 NDPS Act which is Ex. PW8/A and carbon copy of notice was given to the accused. He had written the reply at the instance and direction of the accused, which is Ex. PW8/B. Thereafter, he had taken khaki colour bag from the right hand of accused and checked the same. There was a green colour polythene , having a knot inside the bag. He opened the knot and that green colour polythene was 12 13 having a double layered transparent polythene which was found containing white colour powder. He kept that double layered polythene and had taken out little bit white colour substance and checked on field testing kit and it came to be pseudo ephedrine. He weighed the polythene containing pseudo ephedrine and it came to be 3kg 400 gms. He had taken out two samples of 10gm each , kept the same in two separate transparent polythene , tied the same with rubber band and then same were kept in two separate cloth parcels which were given serial no. A and B. Remaining pseudo ephedrine was kept in the double layered polythene and then the same was kept in green colour polythene, made a knot and then the same was kept in the same green colour bag and then it was kept in a separate cloth parcel and was given mark C. Thereafter, he affixed his seal i.e. 7APSNBDELHI on the pulandas. Thereafter, he prepared FSL Form at the spot and also affixed his seal on the same. The case property was taken into possession vide separate seizure memo vide Ex. 13 14 PW8/C. Seal after use was handed over to HC Rajiv. He inquired from the accused as to from where he procured the same and regarding the documents. Accused stated that he did not have any document. Thereafter, he prepared one tehrir vide Ex. PW10/B and had given to Ct. Manoj with direction to hand over the same to duty officer for registration of FIR. He had also given all the three sealed parcels, FSL form and carbon copy of seizure memo with direction to hand over the same to the SHO. At about 10pm , second IO SI Shiv Darshan came at the spot. He produced the documents and accused before him. Second IO prepared site plan at his instance, which is Ex. PW9/A . Accused was arrested vide arrest memo Ex. PW9/B. IO conducted personal search of accused vide personal search memo Ex PW9/C. IO interrogated accused and recorded his disclosure statement, which is Ex. PW9/D. Accused was produced before Inspector Vivek Pathak and witness recorded his statement. He prepared report u/s 57 NDPS Act (Ex. PW3/C) and produced the same before Inspector 14 15 Vivek Pathak.
15. Thereafter, prosecution evidence was closed.
16. Statement of accused was recorded u/s 313 CrPC wherein the entire incriminating evidence has been put forth and explained to the accused to which he pleaded innocence and false implication. Accused has submitted that no contraband was recovered from his possession and same was planted upon him.
17. Accused had stated that he does not want to lead evidence in defence .
18. I have heard arguments from Sh Subhash Chauhan, Ld Additional P. P for the State and Sh M.S. Tyagi, Ld counsel for accused.
19. Ld defence counsel had argued that prosecution has not been able to prove its case against accused. It is also argued that no public witness was joined during raid and hence testimonies of police officials become doubtful being interested witnesses. There are material contradictions in the testimonies of prosecution witnesses, which makes the 15 16 case of prosecution doubtful. It is therefore prayed by Ld defence counsel that accused be acquitted of the offence.
20. On the other hand it is submitted by Sh Subhash Chauhan, Ld Addl. P. P for the State that the prosecution has proved its case sufficiently as the witnesses have supported the case of the prosecution. Prosecution had proved its case beyond reasonable doubt that accused was found in conscious possession of 3 kg 400 grams of Pseudo Ephedrine on 18/11/2014 at about 3.50 p.m, near Nigam Bodh Ghat Gate, Delhi. Statements of prosecution witnesses are cogent. There is no inconsistency in the statements of prosecution witnesses. It is prayed by Ld Additional P.P that accused be convicted for the offence.
21. I have considered the arguments advanced by Ld counsel for the parties, facts and circumstances of the case, evidence and material on record.
22. The prosecution has proved its case by way of testimonies of 11 witnesses that accused was found in possession of illegal contraband ie Pseudo Ephedrine. No 16 17 document has been filed or proved on record by accused to prove that he had any license to have Pseudo Ephedrine in his possession.
23. Further, contention of Ld Defence counsel has been that testimony of police official is not reliable as no public witness was joined during raid despite there being availability of public witnesses. On this point, it is important to note that PW8 Ct Manoj Tyagi, PW10 HC Rajiv and PW11 SI Sanjay Neolia have stated that they asked public persons to join the investigation but they refused to join the investigation and due to paucity of time, no notice could be given to such public persons. Therefore, testimonies of police officials cannot be considered to be unreliable only because they are police officials. As in Karamjit Singh vs State ( AIR 2003 SC 1311) Hon'ble Supreme Court has held that:
"The testimony of police personnel should be treated in the same manner as testimony of any other witness and 17 18 there is no principle of law that without consideration of independent witness their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other purpose and it is not a proper approach to distrust and suspect them without good grounds.
24. As regards the contradictions in the testimonies of prosecution witnesses, I am of the view that though it is argued by the Ld. defence counsel that there are contradictions in the testimonies of prosecution witnesses regarding the manner of conducting the investigation, but no detail contradiction, which can be considered as material or fatal to the case of the prosecution has been proved or shown. Thus, no major contradictions have been pointed out by Ld defence counsel. Hence, this argument of Ld defence counsel is not acceptable.
25. It is clear from the testimonies of prosecution witnesses that on 18/11/2014 at about 3.50 p.m. near Nigam Bodh 18 19 Ghat, Delhi, after conducting the raid in pursuance to the secret information, accused was found at the spot, secret informer had identified him as accused Ram Varksh. From cursory search of accused, a bag containing 3 kg 400 grams of Pseudo Ephedrine was recovered, sample of which was drawn and as per FSL result Ex.P.X, contraband has been proved to be Pseudo Ephedrine. All the prosecution witnesses have cogently and consistently proved beyond reasonable doubt the factum of the recovery of contraband from the possession of accused, circumstances in which recovery was effected from the accused, process carried out for recovery of contraband. It has also been consistently proved by the prosecution witnesses that requirement of provisions of NDPS Act have been complied with diligently by all the police officials and Investigating Officers. The sample sent to FSL has proved the contraband to be Pseudo Ephedrine. There is no evidence led by the accused or any reason attributed by the accused for being falsely implicated in the present case nor there is any animosity or 19 20 enemical relations between the accused and police officials due to which, accused might have been falsely implicated in the present case.
26. In view of above discussion and evidence led by the prosecution, I am of the opinion that it has been categorically proved beyond reasonable doubt by the prosecution that accused was found in possession of 3 kg and 400 grams of Pseudo Ephedrine. Requirements of section 42, 50, 55 and 57 of NDPS Act have been duly complied with by the prosecution. Hence accused Ram Varkash is convicted u/s 25 A read with section 9A of NDPS Act.
ANNOUNCED IN THE OPEN COURT ON 28/05/2016 (SHAIL JAIN ) SPECIAL JUDGE: NDPS02 CENTRAL DELHI 20