Delhi District Court
Sc No.56281/16 State vs Mangal Dass Etc. Page 1/26 on 10 February, 2017
IN THE COURT OF MR. RAKESH KUMAR-I
SPECIAL JUDGE (NDPS) : ADDITIONAL SESSIONS JUDGE
WEST DISTRICT : TIS HAZARI COURTS : DELHI.
IN THE MATTER OF
SESSIONS CASE NO.56281
FIR NO.69/14
P.S. CRIME BRANCH
UNDER SECTION 18/29 OF NDPS ACT
STATE
VERSUS
1. MANGAL DASS,
S/O MR. JANKI DASS,
R/O VILLAGE PILASIYA, P.S. BHAVGARH,
DISTRICT MANSOUR, M.P.
2. RAM PRASAD DASS,
S/O MR. SHANKAR DASS,
R/O VILLAGE AVLESHWAR, P.S. HUTHUNIA,
DISTRICT PRATAPGARH, RAJASTHAN.
.....ACCUSED
DATE OF INSTITUTION : 01.12.2014
DATE OF CONCLUSION OF ARGUMENTS : 27.01.2017
DATE OF DECISION : 10.02.2017
JUDGMENT
1. As per the case of prosecution DD No.5 dated 09.06.2014 Narcotics Cell, Shakar Pur(Ex.PW4/A) was registered at 07:15 AM by Sub Inspector Sunil Jain(PW-12), now Inspector in respect of specific secret information qua possession of huge quantity of Opium by accused Mangal Dass and on receipt of secret information, vide DD No.6 at 07:00 AM(Ex.PW-12/A) and after compliance of provisions of section 42 of the NDPS Act, a raid was SC No.56281/16 State Vs Mangal Dass etc. Page 1/26 conducted near District Centre, Janak Puri, Najafgarh Road, Delhi. At about 09:20 AM one person namely accused Mangal Dass was apprehended. Notice under section 50 NDPS Act (Ex.PW8/A)was prepared and its carbon copy(Ex.PX) was served to accused Mangal Dass and his legal rights were explained to him. After his refusal (Ex.PW8/B), his formal search was conducted. During his search one maroon colour raxin bag containing one transparent polythene having 8.000 KiloGrams "Opium" was recovered in it. Two samples of fifty grams each were taken out from the recovered Cocaine and two cloth parcels Mark A and B were prepared. Rest of the recovered Opium into same bag with the help of white cloth was converted into parcel and was marked as Mark C. Sub Inspector Sunil Jain, now Inspector also filled in FSL Form. All the three parcels marked A, B and C and FSL Form were sealed with the seal of 3C PS NB DELHI. Seal after use was handed over to Head Constable Yogesh(PW-9). PW-12 Sub Inspector Sunil Jain took all the three parcels and FSL Form in police possession vide seizure memo Ex.PW-8/C. PW-12 also prepared rukka and handed over to Head Constable Rajesh(PW-8) alongwith case property, FSL Form and carbon copy of seizure memo for registration of the case and depositing of the case property by the SHO, P.S. Crime Branch. Further investigation of the case was carried out by Sub Inspector Rajveer Singh(PW-11).
2. Inspector Virender Singh (PW-5) had put counter seal on the said pullandas / parcels with his seal VSS and called MHC(M) Head Constable Jag Narain (PW-3) in his office. The MHC(M) received the case property vide entries made in Register No.19 of the Malkhana vide DD No.17 (Ex.PW-5/A). Sub Inspector Rajveer Singh(PW-11) reached at the spot vide DD No.21(Ex.PW11/A) and after enquiry and at the instance of PW-12 SC No.56281/16 State Vs Mangal Dass etc. Page 2/26 Sub-Inspector Sunil Jain(PW-12), site plan (Ex.PW11/B) was prepared. Statement of PW-9 Head Constable Yogesh was recorded. Enquiry was made from the accused Mangal and he was arrested vide arrest memo Ex.PW-9/A and his personal search was taken vide memo Ex.PW-9/B. The accused made his disclosure statement Ex.PW9/C. The accused was brought to Narcotics Cell and produced before PW-6 Inspector Vivek Pathak. On 10.06.2014 in pursuance of disclosure statement of accused Mangal Dass, accused Mangal Dass led the police party to Sarai Kale Khan ISBT and at about 08:10 PM co-accused Ram Prasad was apprehended. He was arrested vide arrest memo Ex.PW9/D and his personal search was conducted vide memo Ex.PW9/E. He made his disclosure statement Ex.PW9/F. The accused was brought to Narcotics Cell and produced before PW-6 Inspector Vivek Pathak. The parcel Mark A was sent to FSL on 12.06.2014 through Constable Ram Dass(PW-2). PW-7 Dr. Lingaraj Sahoo prepared the FSL result as Ex.PW-7/A. PW-12 SI Sunil Jain had prepared special report under section 57 NDPS Act Ex.PW4/C which was received in the office of PW-4 ACP Zile Singh vide entry Ex.PW4/D. PW-11 SI Rajveer Singh had prepared special report under section 57 NDPS Act Ex.PW4/E which was received in the office of PW-4 ACP Zile Singh vide entry Ex.PW4/D. CHARGE
3. On 07.01.2015 accused Mangal Dass was charged for having committed an offence punishable under section 18(b)/29 of the NDPS Act and accused Ram Prasad Dass was charged for having committed an offence punishable under section 29 of the NDPS Act to which they both pleaded not guilty and claimed trial.
SC No.56281/16 State Vs Mangal Dass etc. Page 3/26PROSECUTION EVIDENCE
4. Prosecution in all examined thirteen witnesses to bring home the guilt of accused persons. The substance of prosecution evidence is as follows:-
PW-1 Head Constable Rajbir, the Duty Officer has proved the FIR Ex.PW1/A, endorsement on the rukka Ex.PW1/B and DD No.15 regarding registration of the FIR Ex.PW1/C;
PW-2 Constable Ram Dass has deposited the sealed pullanda Mark A in FSL;
PW-3 Head Constable Jag Narain, the MHC(M) has proved various entries made in Register No. 19 and 21 of the Malkhana Ex.PW3/A to Ex.PW3/E;
PW-4 ACP Zile Singh, now retired has proved report u/s 42 NDPS Act as Ex.PW4/A and entry regarding its receipt in ACP office as Ex.PW4/B; report u/s 57 NDPS Act regarding seizure of Opium Ex.PW4/C and entry regarding its receipt in the ACP office as Ex.PW4/D, report u/s 57 NDPS Act regarding arrest of accused persons as Ex.PW4/E and entry regarding its receipt in ACP office as Ex.PW4/F;
PW-5 Inspector Virender Singh, the SHO P.S. Crime Branch has proved the proceedings u/s 55 NDPS Act vide DD no.16 Ex.PW5/A and certificate u/s 65B of Indian Evidence Act regarding registration of the FIR in this case as Ex.PW5/B;
PW-6 Inspector Vivek Pathak is the Inspector, Narcotics Cell, Crime Branch.
PW-7 Mr. Lingaraj Sahoo, Senior Scientific Officer has proved the FSL result as Ex.PW7/A;
PW-8 Head Constable Rajesh is one of the members of raiding party and also took rukka and case property to police station;
PW-9 Head Constable Yogesh is one of the recovery witnesses and seal after use was handed over to him;SC No.56281/16 State Vs Mangal Dass etc. Page 4/26
PW-10 SI Satyavir Singh is the Reader to ACP Zile Singh and he has proved the entries regarding receipt of reports u/s 42 & 57 NDPS Act in ACP Office, which he had put up before the ACP;
PW-11 Sub-Inspector Rajveer Singh, the subsequent investigating officer has proved the various documents prepared during the course of investigation; PW-12 Sub-Inspector Sunil Jain, the initial investigating officer of the case has proved the various documents prepared during the course of investigation; PW-13 SI Karamvir Singh has prepared and filed the chargesheet in this case;
STATEMENT OF ACCUSED
5. Statements of accused persons have been recorded under section 313 of the Code of Criminal Procedure, 1973 wherein accused persons have denied the case of the prosecution. Accused Mangal Dass has stated that he was lifted from Nizamuddin Railway Station on 09.06.2014 at about 08:30 AM and falsely implicated in this case. He did not make any disclosure statement. He was not served with any notice under section 50 NDPS Act. The notice and the recovery has been planted upon him. Police officials obtained his signatures on some blank/ semi printed papers.
Accused Ram Prasad Dass has stated that he does not know co- accused Mangal Dass. He has been falsely implicated in this case. He was lifted by the police officials from his house at Rajasthan. He did not make any disclosure statement. Police officials obtained his signatures on some blank/ semi printed papers.
DEFENCE EVIDENCE
6. Despite opportunity, both the accused persons did not prefer to lead any evidence in their defence.
SC No.56281/16 State Vs Mangal Dass etc. Page 5/267. Learned counsels for accused persons have relied on the following judgments :-
1. Uttam Kumar V/s State, 2010 [3] JCC 1946
2. Rajesh Kumar @Sanjay V/s State, 2014 [3] JCC [Narcotics] 156
3. Inder Dev Yadav V/s The State(NCT of Delhi), 214 [3] JCC [Narcotics] 129
4. State of Delhi V/s Ram Avtar @Rama, 2011 (3) JCC 146
5. State of Punjab V/s Baldev Singh JT 1999 (4) SC 595
6. Narcotics Central Bureau V/s Sukh Dev Raj Sodhi, 2011 (2) J.Cr.C.901
8. This Court has relied on the following judgments :-
A. Jarnail Singh Vs. State of Punjab, MANU / SC / 0480 / 2011 : AIR 2011 SC 964 B. Bilal Ahmed Vs. State, MANU / DE / 0148 / 2011 : 2011 I AD (DELHI) 613 :
2011 (1) JCC 27 C. Rattan @ Ratan Singh Vs. State (Govt. of NCT Delhi) MANU / DE / 0251 / 2013 : 2013 II AD (DELHI) 288 D. Fatima Bibi Vs. Inspector of Customs, MANU / PH / 0183 / 2013 E. Vijaysinh Chandubha Jadeja Vs. State of Gujrat, AIR 2011 SC 77 F. Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 G. Tahir Vs. State, 1996(3) SCC 338 SC No.56281/16 State Vs Mangal Dass etc. Page 6/26 H. Govt. of NCT of Delhi Vs. Sunil, (2001) 1 SCC 652 I. Hardip Singh Vs. State of Punjab, MANU / SC / 7956 / 2008 : 2008 (8) SCC 557 J. State of Rajasthan Vs. Daul @ Daulat Giri, MANU / SC / 0881 / 2009 : 2009 (14) SCC 387
9. The record has been carefully and thoroughly perused. Submissions of Mr. Ram Pyara, learned Additional Public Prosecutor for State and Mr. Atul Kumar Sharma, learned amicus curiae for accused Mangal Dass and Mr. Deepak Ghai, learned counsel for accused Ram Prasad Dass have been heard. The respective submissions have been considered.
10. Learned Additional Public Prosecutor for State has submitted that the prosecution has duly proved its case for criminal conspiracy of accused persons and recovery of 8.000 Kilograms of Opium, which is commercial quantity. Regarding non- examination of public witnesses, it has been duly explained. All mandatory provision including Section 42, 50 & 57 of NDPS Act have been complied with. The FSL report has duly corroborated the recovered substance as Opium. From the combined reading of the statements of the occular witnesses coupled with the scientific evidence in the form of FSL report, the case of prosecution is established beyond the shadow of doubt and the accused persons are liable to suffer an order of conviction against them under section 18(b) and 29of NDPS Act.
11. Per contra, according to learned counsels for accused persons, the case of prosecution is doubtful as at no stage of investigation any independent public witness has been joined by the investigating officer. Non-examination of HC Abdul Hakeem, the driver of government vehicle and non-production and examination SC No.56281/16 State Vs Mangal Dass etc. Page 7/26 of the document pertaining to logbook of the government vehicle used by the raiding party remained a vital lacunae on the part of prosecution. Further, there are material contradictions in the testimonies of members of raiding party regarding distance of spot and position of members of raiding party and they are fatal.
12. FINDINGS:-
PW-12 Sub-Inspector Sunil Jain (now Inspector) has deposed that on 09.06.2014 at about 06:45 AM one secret informer came in his office and informed him that accused Mangal Dass and Ram Prasad Dass were involved in supply of Opium in the areas of Delhi and Haryana after procuring it from M.P. and Rajasthan and on that day also, accused Mangal Dass would come near District Centre, Janak Puri, Najafgarh Road, Delhi in between 09:00 AM to 10:00 AM to supply Opium to someone and if raided, he could be apprehended. PW-12 had enquired the secret informer and after satisfying himself, PW-12 produced him before PW-6 Inspector Vivek Pathak in the office at about 07:00 AM and apprised him about the secret information. PW-6 Inspector Vivek Pathak had also enquired the secret informer and after satisfying himself, he had informed PW-4 ACP Zile Singh (now retired) telephonically at his residence, who directed to conduct raid immediately as per law without any delay. PW-6 Inspector Vivek Pathak directed PW-12 to conduct the raid immediately.
PW-12 Sub-Inspector Sunil Jain(now Inspector) had recorded the secret information in rojnamcha at about 07:15 AM vide DD No.5 Ex.PW4/A and had produced the same before PW-6 Inspector Vivek Pathak in compliance of section 42 NDPS Act. Thereafter, PW-12 had constituted a raiding party under his supervision consisting of PW-8 HC Rajesh and PW- 9 HC Yogesh. PW-12 called them at about 07:25 AM and briefed them about the secret information. The raiding party left the office of Narcotic Cell with secret informer at about 7:30 AM in a government vehicle Qualis No.DL-1CH-9804 driven by HC Abdul Hakeem vide DD No.6 Ex.PW12/A. PW-12 took IO bag, field testing kit and electronic weighing SC No.56281/16 State Vs Mangal Dass etc. Page 8/26 machine. Via Pusta Road, Vikas Marg, ITO, Connaught Place, Shankar Road, Patel Nagar, Rajouri Garden, Najafgarh road the raiding party reached the spot at about 08:45 AM. On the way to the spot, PW-12 had requested five passersby and the public persons in front of RML Hospital and six public persons near crossing red light, Rajouri Garden and at the spot five public persons to join the raiding party after stopping the vehicle but none agreed and left from there after giving their reasonable excuses without disclosing their names, addresses and particulars.
PW-12 SI Sunil Jain, now Inspector has further deposed that at the spot he had again briefed the raiding party and they took position. The vehicle was parked about 50 metres away from the spot towards Uttam Nagar at side of road. PW-12 directed HC Abdul Haqeem/ driver to keep watch and to bring the vehicle on signal of PW-12. PW-12 along with PW-8 HC Rajesh, PW-9 HC Yogesh and secret informer took position at the footpath in front of District Centre. After taking position at 08:55 AM, they started waiting. At about 09:10 AM, accused Mangal Dass was seen coming from the side of Tilak Nagar towards District Centre while crossing red light. He was carrying a bag on his right shoulder. The secret informer pointed out towards him as Mangal Dass. After pointing out accused from a distance of 20-25 paces, the secret informer left the spot. After crossing the raiding team members, accused Mangal Dass stood at a distance of about 7-8 metres from them near footpath and started waiting for someone and after waiting for 6-7 minutes, when he started going towards Tilak Nagar, the raiding party members surrounded him at about 09:20 AM.
PW-12 has further deposed that he introduced accused Mangal Dass about their identity as police officials and stated that they had an information that he(accused) was having Opium in his possession and his search was to be conducted. Accused Mangal Dass disclosed about his name and address. PW-12 directed HC Abdul Haqeem/driver to bring the vehicle at the spot.
PW-12 has further deposed that he had also informed accused Mangal Dass that he had a legal right to be searched before Gazetted officer or SC No.56281/16 State Vs Mangal Dass etc. Page 9/26 Magistrate and the arrangement in this regard could be made at the spot. PW-12 also offered accused that he could also take search of the police party and government vehicle prior to his search. PW-12 also explained the accused about his legal rights and the meaning of Gazetted officer or Magistrate in Hindi. Accused told that he understood his rights available with him and he did not want to be searched before Gazetted officer or Magistrate and he even declined to take the search of police party and of government vehicle. After refusal of accused for exercising his rights, PW-12 SI Sunil Jain prepared notice u/s 50 NDPS Act Ex.PW8/A and served the carbon copy of the same Ex.PX to accused Mangal Dass. Accused had gone through the contents of notice u/s 50 of NDPS Act and told that he could only read Hindi but could not write, therefore, on dictation of accused, PW-12 had scribed his reply Ex.PW8/B. PW-12 has further deposed that he had requested 8-10 public persons gathered at the spot to join the proceedings who gathered at the spot but they refused and left from there after giving their reasonable excuses without disclosing their names, addresses and particulars. Thereafter, PW-12 took the raxin bag which accused was carrying on his right shoulder from the accused. That bag was having two strings, one long string, one pocket each on both sides and one small pocket on front side, having written WILSON on front side pocket, all the pockets were having zipper. PW-12 opened that bag from which one cream colour shirt and two jeans pants and one transparent polythene bag tied with a string having black colour sticky substance beneath the clothes was recovered. The said polythene was opened and after opening the same, it was found containing another polythene bag tied with string having some black colour sticky substance. PW-12 had tested that black colour substance with field testing kit and found to be Opium. PW-12 had weighed that Opium with double polythene by electronic weighing machine. The total weight of the recovered opium alongwith polythene was eight Kilogram. Out of the same, two samples fifty grams each of Opium were taken in two transparent polythene and tied with rubber band. Those transparent polythene were converted into pullandas with help of white piece of cloth and marked as Mark A & Mark B. The remaining Opium in the same transparent polythene was again tied with SC No.56281/16 State Vs Mangal Dass etc. Page 10/26 the same string(sutli) and kept in the same bag along with the clothes and it was converted into a pullanda with white cloth piece and marked as Mark C. PW-12 has further deposed that he had filled in the FSL Form and sealed all three pullandas with seal impression 3C PS NB DELHI and the same seal was also put on the FSL Form. Seal after use was handed over to PW- 9 HC Yogesh. All three sealed pullandas and FSL Form were taken into possession vide Seizure Memo Ex.PW8/C. PW-12 SI Sunil Jain prepared rukka which was scribed by PW-9 HC Yogesh on dictation of PW-12. PW- 12 had handed over all three pullandas Mark A, Mark B, Mark C, FSL Form, carbon copy of Seizure Memo and rukka to PW-8 HC Rajesh with direction to produce the case property, FSL Form and copy of seizure memo before the SHO, Crime Branch for compliance u/s 55 NDPS Act and to hand over the rukka to duty officer for registration of the FIR. PW-8 HC Rajesh left the spot in official vehicle driven by HC Abdul Haqeem at about 12:30 PM.
PW-1 Head Constable Rajbir, the duty officer has deposed that at about 01:30 PM PW-8 HC Rajesh had handed over the rukka to him and on the basis of rukka, PW-1 got registered the FIR Ex.PW1/A and made endorsement Ex.PW1/B on rukka. DD No.15 regarding registration of FIR is Ex.PW1/C. DD No.17 regarding kayami is Ex.PW1/D. After registration of the FIR, the further investigation was assigned to PW-11 SI Rajveer Singh.
PW-5 Inspector Virender Singh has deposed that at about 01:35 PM, PW-8 HC Rajesh had handed over three pullandas Mark A, Mark B, Mark C, FSL Form, carbon copy of Seizure Memo to him and PW-5 also affixed his seal of VSS on all the parcels and FSL Form and signed the same. PW-5 has further deposed that he had called PW-3 HC Jag Narain, the MHC(M) with register no.19 and got deposited the case property in malkhana. PW-5 had lodged DD No.16 Ex.PW5/A in this regard.
PW-11 SI Rajveer Singh, the subsequent IO has deposed that vide DD No.21 Ex.PW11/A, he reached the spot at about 05:15 PM. PW-12 SI Sunil SC No.56281/16 State Vs Mangal Dass etc. Page 11/26 Jain had handed over all the relevant documents prepared by him to PW- 11 ASI Rajveer Singh as well as the custody of accused Mangal Dass and briefed him about the recovery of Eight Kg. Opium from accused. PW-11 ASI Rajveer Singh had prepared the site plan Ex.PW11/B at instance of PW12 and also recorded statement of PW-9 HC Yogesh u/s 161 Cr.P.C.
PW-11 SI Rajveer Singh has further deposed that he had interrogated and arrested accused Mangal Dass vide arrest memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW9/B. In his personal search, the carbon copy of notice u/s 50 NDPS Act Ex.PX and Rs.2,200/- were recovered. ASI Rajveer Singh had recorded disclosure statement of accused which is Ex.PW9/C. At about 07:30 PM the police officials along with accused left the spot and reached P.S. Malviya Nagar at about 08:30 PM where PW-11 ASI Rajveer Singh had deposited personal search articles of accused and recorded the statements of the PW-5 Inspector Virender Singh, SHO and PW-3 HC Jag Narain, MHC(M). At about 09:30 PM the police officials along with accused left for P.S. Crime Branch and at about 10:30 PM reached Narcotics Cell where accused was produced before PW-6 Inspector Vivek Pathak, who also interrogated accused Mangal Dass and found his arrest as correct. PW-11 lodged arrival entry as DD No.25 Ex.PW11/X. On 10.06.2014 PW-12 SI Sunil Jain had prepared the special report u/s 57 NDPS Act Ex.PW4/E which was forwarded by PW-6 Inspector Vivek Pathak and received in the office of PW-4 ACP Zile Singh vide entry Ex.PW4/E. On 10.06.2014 PW-12 ASI Rajveer Singh had prepared the special report u/s 57 NDPS Act Ex.PW4/C which was forwarded by PW-6 Inspector Vivek Pathak and received in the office of PW-4 ACP Zile Singh vide entry Ex.PW4/D. In his disclosure statement accused Mangal Dass disclosed that as per their plan, he would meet co-accused Ram Prasad in between 07:00 AM to 08:00 AM on 10.06.2014 at Sarai Kale Khan ISBT. PW-11 ASI Rajveer Singh along with accused Mangal Dass, PW-9 HC Yogesh, PW-8 HC Rajesh left the office in government vehicle Qualis no.DL-1CH-9804 driven by HC SC No.56281/16 State Vs Mangal Dass etc. Page 12/26 Mukesh at 06:00 AM vide DD No.4, Ex.PW11/C and reached near the place disclosed by accused Mangal Dass at 06:30 AM via Pushta Road, Ring Road. After parking the vehicle, the police officials started waiting for the accused Ram Prasad Dass. At about 08:05 AM, accused Ram Dass was seen coming from the side of Sarai Kale Khan on foot, wearing blue shirt at that time. Accused Mangal Dass had pointed out towards him as Ram Prasad. Your Accused Ram Prasad stood under the flyover and starting waiting for someone. At about 08:10 AM accused Ram Prasad was apprehended. PW-11 introduced about their identity to accused Ram Prasad Dass and about disclosure statement made by accused Mangal Dass.
PW-11 has further deposed that at about 08:30 AM he had arrested accused Ram Prasad u/s 29 NDPS Act vide arrest memo Ex.PW9/D and his personal search was conducted vide memo Ex.PW9/E. In his personal search Rs.580/- and his driving licence were recovered. PW-11 recorded the disclosure statement of accused Ram Prasad Dass as per his version which is Ex.PW9/F. At about 09:00 AM, all police officials along with both the accused person left the spot for P.S. Malviya Nagar and reached there at 10:00 AM where PW-11 had deposited the personal search articles of accused Ram Prasad Dass and recorded statement of PW-3 MHC(M) HC Jag Narain. At about 10:15 AM they left P.S. Crime Branch, Malviya Nagar and reached Narcotics Cell at about 11:15 AM where PW-11 SI Rajveer Singh had produced accused Ram Prasad before PW-6 Inspector Vivek Pathak, who also interrogated the accused and found his arrest as correct. At about 11:30 PW-11 had lodged DD No.10 regarding investigation.
On 12.06.2014 the sample Mark A along with FSL Form and other relevant documents was sent to FSL through PW-2 Constable Ram Dass vide RC Ex.PW3/D. The acknowledgment from FSL is Ex.PW3/E. PW-7 Dr. Lingaraj Sahoo has proved the FSL Result Ex.PW7/A. PW-3 HC Jag Narain, the MHC(M) has proved the various entries made in SC No.56281/16 State Vs Mangal Dass etc. Page 13/26 register no.19 & 21 of malkhana which are Ex.PW3/A to Ex.PW3/E. After completion of the investigation PW-13 SI Karamveer Singh had prepared the chargesheet and filed in the court.
13. The witnesses of the raiding party have been cross- examined at length on behalf of accused during which they have replied to all the questions properly. They have denied the suggestion that nothing was recovered from the accused or that contraband has been planted on the accused. They have also denied that accused persons have been falsely implicated in this case.
14. The allegations against accused Mangal Dass are about conscious possession of Opium which was recovered by the raiding party. The offence alleged is punishable under Section 18(b) of the NDPS Act. In view of severe punishment various safeguards have been provided under the Act to be complied with by the raiding party. It is important for the raiding party to make effective and substantial compliance to the provisions of NDPS Act.
15. The accused Mangal Dass stands charged for the conscious possession of commercial quantity of contraband i.e. Opium under NDPS Act. The stringent provisions are provided under that the punishment especially in the case commercial quantity of contraband is involved. The scheme of NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguard ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, balance must be struck between the need of the law and the enforcement of such law on the one hand and the protection of citizen from oppression and injustice on the other. The provisions are intended SC No.56281/16 State Vs Mangal Dass etc. Page 14/26 for providing certain checks on exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband.
16. It has been held by the Hon'ble Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujrat, AIR 2011 SC 77 that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article doubtful and vitiate the conviction.
17. In the instant case accused was apprehended by the raiding party on the basis of secret information. The secret information was reduced into writing by PW-12 Sub-Inspector Sunil Jain vide DD No.5 Ex.PW4/A. It is evident on perusal of Ex.PW4/A that information was specific and even the name of accused and nature of contraband has been mentioned therein. The information was shared with Inspector Vivek Pathak(PW-6) and also the secret informer was produced before him. It is clear from the testimony of PW-6 that he interacted with the secret informer and thereafter transmitted the secret information to the senior officers. It is therefore, established that compliance of Section 42 NDPS Act has been properly made.
18. The next important provision is notice under Section 50 of the NDPS Act. It has been argued on behalf of defence that the SC No.56281/16 State Vs Mangal Dass etc. Page 15/26 notice under section 50 NDPS Act allegedly served upon the accused is defective as it is not in consonance and within the ambit and spirit of provisions of Section 50 NDPS Act, which provides that any officer duly authorised under section 42 is about to search any person under the provisions of sections 41, 42 & 43, he shall, if such person so requires, take such person without necessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate, however, the contents of notice under section 50 NDPS Act suggest that it was optional on the part of the IO to produce the accused before the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate in case the accused desires.
19. Section 50 of the NDPS Act reads as under :-
50. Conditions under which search of persons shall be conducted -
(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, 42, & 43, he shall, if such person so requires, take such person without necessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-sec(1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.SC No.56281/16 State Vs Mangal Dass etc. Page 16/26
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973(2 of 1974).
(6) After a search is conducted under sub-section(5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours, send a copy thereof to his immediate official superior.
20. The prosecution witnesses have remained clear and consistent in their deposition about the service of notice under Section 50 of NDPS Act before taking search of accused. The notice is proved as Ex.PW8/A and on perusal of the same it is clear that statutory rights of the accused in this regard were clearly explained to him. During the course of cross-examination of the prosecution witnesses no substantial question or suggestion was put forth in this aspect. No such defence has been raised on behalf of accused that he is not an educated man or was not knowing Hindi. The accused has also signed his reply. The handwriting of accused and his signatures on the notice and reply are not disputed. In other words, the service of notice has not been brought into question by the defence. The contention of learned defence counsel that the SC No.56281/16 State Vs Mangal Dass etc. Page 17/26 notice under section 50 NDPS Act Ex.PW8/A is defective as it does not fulfill the mandatory requirement of Section 50 NDPS Act as it merely suggests that it was optional on the part of the IO to produce the accused before any Gazetted Officer or Magistrate, is not convincing in the present set of circumstances where the accused is an educated person having knowledge of English and in fact after understanding his legal right, he knowingly opted not to avail his right to be searched before any Gazetted Officer or Magistrate.
21. The members of raiding party have been examined as PW-8 Head Constable Rajesh and PW-9 Sub-Inspector Yogesh. On examining their statements, this court finds that they remained confident and consistent in their deposition and able to answer all the questions during the course of cross-examination in proper and reasonable manner. Their testimony could not be impeached by the defence and there is no reason to doubt the credibility of these witnesses. The documents proved on record are corroborated and no discrepancies or infirmities are noticed so as to doubt the version of the prosecution.
22. Learned counsel for accused has contended that no independent witness could be joined by the raiding party and for this reason the case of prosecution is doubtful. On examining the facts of this case and the examination of witnesses and document, this court is of opinion that there is no reason to discredit the convincing testimony of prosecution witnesses. Genuine efforts were made by raiding party to join the public witnesses but none come forward. It is not uncommon these days that public persons are reluctant to join in such cases as they do not want to indulge in hectic police and court proceedings.
23. Learned counsel for accused has contended that no SC No.56281/16 State Vs Mangal Dass etc. Page 18/26 independent witness was associated with police despite recovery at public place, as such no reliance should be placed. Learned Additional Public Prosecutor for State has rightly pointed out that in the given facts and circumstances, non-joining of witnesses from public, arrest of accused Mangal Dass and recovery from his possession when all the witnesses to arrest and recovery have made cogent and convincing statements regarding the manner in which the investigation was conducted that there is no discrepancy and material contradiction therein.
24. It has been held by the Hon'ble Supreme Court in Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 that non joining of independent witness is not fatal to the prosecution case particularly when efforts were made by the investigating party to join public witness but none was willing. The conviction was recorded in that case.
25. It is evident from the testimony of prosecution witnesses that sincere efforts were made to join the public witnesses but none was willing to come forward . It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court proceedings. The non joining of public witnesses is not fatal to the case as otherwise the case is proved by way of consistent and cogent evidence. On examining the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the opinion that there is no reason to discredit the convincing testimony of prosecution witnesses. This is also fortified by the judgement of Hon'ble Supreme Court titled Tahir Vs. State 1996(3) SCC 338. Para-6 of this judgement reads as under:-
"6.............No infirmity attaches to the SC No.56281/16 State Vs Mangal Dass etc. Page 19/26 testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can from basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
26. It is settled law as laid down in Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 that conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution.
27. Learned defence counsel has relied on Rajesh Kumar @Sanjay V/s State NCT of Delhi & Inder Dev Yadav & Ors. V/s The State NCT of Delhi (supra) in respect of non-joining of public witnesses. The testimony of official witnesses is trustworthy and reliable. Therefore, the judgments relied on behalf of defence, though not disputed, are not applicable in the facts and circumstances of this case.
28. It has further been argued that there is no record produced by the prosecution about handing over and taking back the seal and as to when the seal was returned to Sub-Inspector Sunil Jain(PW-12) and Inspector Virender Singh(PW-5). Seal after SC No.56281/16 State Vs Mangal Dass etc. Page 20/26 use was not given to any independent witness. It is worthwhile to note that there is no such suggestion given to any witness in this regard. This plea is a lame excuse. Moreover, the FSL result Ex.PW7/A from Chemistry Division clearly mentions about the status of seals that the seals were found intact and tallied with the specimen seal as per the forwarding letter/FSL Form.
29. In judgement titled Jarnail Singh Vs. State of Punjab (Supra) Hon'ble Supreme Court has referred to Balbir Kaur Vs. State of Punjab (Supra) wherein it has been observed that as far as delay in sending samples is concerned, in view of Hardip Singh's case (Supra) where there was gap of forty days between seizure and sending the samples to the Chemical Examiner the court held that in view of cogent evidence that opium was seized from the appellant and seals put on the samples were intact till it was handed over to the Chemical Examiner, delay itself is not fatal to the case of prosecution. In the instant case as per FSL result Ex.PW7/A, the seals were not only intact, these were also tallied with specimen seal as per the forwarding authorities specimen seals (FSL Form). Therefore, this argument of learned counsel for accused also stand demolished. Particularly when as per the FSL report the seals are intact and tallied with the specimen seal. There is nothing on record to support the claim of defence that case property was tampered with. Therefore, the argument of defence that there is absence of link evidence is also weak in nature. Link evidence has been duly proved. In Bilal Ahmed Vs. State (Supra) Hon'ble High Court has also relied on judgement titled State of Rajasthan Vs. Daul @ Daulat Giri, Hardip Singh Vs. State of Punjab etc. (Supra).
30. The next argument putforth by learned counsel for accused that statement of Head Constable Abdul Hakeen, who was the driver of the government vehicle has not been recorded and he SC No.56281/16 State Vs Mangal Dass etc. Page 21/26 has not been cited as a witness. It is pertinent to mention that Head Constable Abdul Hakeem was not the member of raiding party. He was the only police official who had taken the raiding party to the spot in government vehicle. Even if he has not been cited as witness does not raise doubt in the story of prosecution.
31. It has also been argued that the prosecution has not brought any document pertaining to entries of logbook of the government vehicle used by the police officials while reaching at the spot. This Court is constraint to observe that as per DD No.6 dated 09.06.2014 Ex.PW12/A mentioning the name of driver Head Constable Abdul Hakeem, vehicle no.DL-1CH-9804 and about IO bag, field testing kit and electronic weighing machine has been proved on record. Therefore, this argument too is not convincing.
32. It has also been argued that Constable Ram Dass(PW-2) has deposited the samples in the malkhana, however, he has not signed in the malkhana register. It does not have any impact on the merits of the case. It is pertinent to mention that it is the admitted case that the case property was deposited in FSL. The FSL result mentions deposit of case property through Constable Ram Dass(PW-2) and the seals were also found intact and tallied.
33. Learned counsel for accused has also argued that the interception of the accused from the spot and preparation of documents at the spot are doubtful. For this he has relied on Uttam Kumar V/s State(supra). With due respect judgment relied by defence is not disputed but of no help to the accused. As discussed in para supra, prosecution has duly proved this aspect beyond reasonable doubt.
SC No.56281/16 State Vs Mangal Dass etc. Page 22/2634. The contradiction pointed out in respect of distance of spot, position of members of raiding party are not material in nature. The case property was deposited with MHC(M)/PW-3 Head Constable Jag Narain through PW-5 Inspector Virender Singh after seizure. PW-2 Constable Ram Dass took sample to FSL and deposited the same. FSL result Ex.PW7/A also mentions about receipt of parcel on 12.06.2014 through PW-2 and seals were found intact and tallied as per forwarding authorities specimen seals. Even PW-3 and PW-5 have deposed that the case property remained intact in their possession.
35. The testimony of prosecution witnesses in this case inspires confidence and they cannot be discredited only on the ground of their official status.
36. It is clear from the evidence and the documents produced on record that due compliance was made to Sections 52 & 55, 57 of the NDPS Act as the case property as well as accused were produced before the SHO and Incharge concerned and also the special reports about seizure of contraband and arrest of accused were sent to the seniors. In this way, the compliance to the mandatory and directory provisions of NDPS Act have been properly made.
37. It is confirmed with the FSL result Ex.PW7/A that contraband recovered from the accused was Opium.
38. In the light of consistent and reliable testimony of prosecution witnesses the defence taken by the accused Mangal Dass is found to be improbable which otherwise has not been substantiated by him by examining any cogent evidence in his defence.
SC No.56281/16 State Vs Mangal Dass etc. Page 23/2639. The accused has pleaded innocence and false implication and given suggestion to prosecution witnesses, however, no plausible motive has been attributed for false implication. No evidence in defence has been produced to prove the false implication of accused. The accused has failed to prove any defence to show his innocence.
The recovery of Opium is clearly established from the accused Mangal Dass.
Now, coming to the accused Ram Prasad Dass, who has been charged in this case under Section 29 NDPS Act.
Section 29 of NDPS Act reads as "whoever abets or is a party to a criminal conspiracy to commit an offence". Admittedly, no recovery has been affected from the possession of accused Ram Prasad Dass or at his instance. The evidence on record is not sufficient enough to establish the allegation that accused Ram Prasad Dass had entered into a criminal conspiracy with accused Mangal Dass.
Accused Ram Prasad Dass has been arrested in this case on the basis of disclosure statement made by accused Mangal Dass wherein he has stated that one of his distant relative Ram Prasad Dass told him about the income and profession that he used to purchase Opium from Rajasthan and Madhya Pradesh and used to supply to parties in Delhi and Punjab and he would help him, he would get five to ten thousands of rupees for each supply.
This disclosure statement is not admissible in evidence against accused Ram Prasad Dass because there is no discovery of any fact pursuant to the statement. No evidence has been connected to show that accused Ram Prasad Dass ever made any deal with SC No.56281/16 State Vs Mangal Dass etc. Page 24/26 accused Mangal Dass. Prosecution has not relied on any call detail record of both the accused persons. PW-11 SI Rajveer Singh who has arrested the accused Ram Prasad Dass has even admitted that no recovery has been effected from accused Ram Prasad Dass. Therefore, in absence of any material showing the involvement of accused Ram Prasad Dass, he can not be connected with the offence alleged against him.
The reference to the disclosure statement of both the accused persons to connect the accused Ram Prasad Dass with the offence would be fruitless because both these disclosure statements have been made to the police. Section 24 to Section 27 of Indian Evidence Act provides that the confessional statement of the accused made before the police officials and any statement made to the police officer by a person while, in custody, is not admissible in evidence. The exception to this rule is provided in Section 27 of Indian Evidence Act, which provides that only that much of the statement can be admitted and read in evidence which leads to 'discovery of some facts'. The disclosure statement of accused Ram Prasad Dass where he stated that he made a deal with accused Mangal Dass to supply Opium. This fact cannot be utilised against accused Ram Prasad Dass. This statement has not led to discovery of any fact, therefore, it is inadmissible in evidence.
Section 30 of Indian Evidence Act provides that confession of co- accused 'may be taken into consideration' against the maker of the statement as well as co-accused. Use of word 'may be taken into consideration' itself shows that such statement is not substantive evidence. It can be used as a corroborative evidence, once there is evidence on the record connecting the accused with the offence. Before Section 30 of the Indian Evidence Act brought into operation, there has to be evidence on record indicating the guilt of the accused and to give strength to that evidence section 30 of SC No.56281/16 State Vs Mangal Dass etc. Page 25/26 Indian Evidence Act can be utilised.
Therefore, for the foregoing reasons, this Court is of the view that the prosecution has not been able to prove its case beyond reasonable doubt against accused Ram Prasad Dass of the charge under section 29 NDPS Act.
CONCLUSION
40. Accused Mangal Dass is convicted for the offence punishable under section 18(b) of the NDPS Act and accused Ram Prasad Dass is acquitted of the offence punishable under section 29 NDPS Act in this case.
41. Put up for arguments on quantum of sentence on 15.02.2017.
ANNOUNCED IN OPEN COURT
ON : 10th FEBRUARY, 2017 (RAKESH KUMAR-I)
ADDITIONAL SESSIONS JUDGE
SPECIAL JUDGE : NDPS(WEST)
TIS HAZARI COURTS, DELHI.
SC No.56281/16 State Vs Mangal Dass etc. Page 26/26