Delhi District Court
State vs Raees Khan on 29 October, 2009
1
FIR No. 89/03
PS: Narcotics Branch
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE: NDPS:
TIS HAZARI COURTS:(WEST) DELHI
FIR No. 89/03
Police station Narcotics Branch
U/s 9A/25A/29 NDPS Act
State V/s Raees Khan
1. Session Case no. : 85/N/03
2. Name of the accused : (1) Raeesh Khan S/o Irshad
R/o Village Dharam Pura
P.O Sohra, Police Station
Sheesh Garh, District Bareili,
U.P.
(2) Dhyan Singh @ Mukesh
S/o Mala Ram R/o A-150,
New Seelampur, Delhi.
(3) Naeem @ Rahul, S/o
Amir Ahmad R/o Mohalla
Garhi, Kasba Sheeshgarh,
District Bareili, U.P.
3. Date of commission of : 14.10.2003
offence
4.Arguments concluded on : 13.10.2009
5. Date of Judgment : 29.10.2009
6. Date of final order : 30.10.2009
JUDGEMENT
1. According to the prosecution case, on 14.10.2003 SI B.P.Singh of Police Station Narcotics Branch had received a secret information regarding possession of huge quantity of Acetic 2 FIR No. 89/03 PS: Narcotics Branch Anhydride by one Raees Khan and Naeem @ Rahul resident of Barelli, U.P. who would come to Novelty Cinema in a white colour Maruti Van bearing number DL5CC-0358 alongwith their accomplish Dhyan Singh. He left the Police Station in vehicle number DL1CF 5342 and at about 10.45 a.m, reached near Kaudiya Pul. There some passers-by were asked to join the raiding party who refused to join showing their inability. The raiding party proceeded further and reached in front of Novelty Cinema at about 10.55 a.m., where again SI B. P. Singh asked some passers-by to join the raiding party but they had also refused showing their inability and left the spot. Then Naakebandi has been done within 50 meters in front of Novelty Cinema. At about 11.25 a.m, a Maruti Van bearing no. DL5CC 0358 came from the side of Old Delhi Railway Station and stood in front of Novelty Cinema. The secret informer identified the persons sitting in the Maruti Van, on the driver seat of the vehicle was accused Dhyan Singh and beside him the accused Naeem @ Rahul and accused Raees Khan was sitting on the back side. When Maruti Van was stopped by the raiding party, accused Naeem @ Rahul ran away. Remaining accused persons were apprehended by the members of the raiding party. SI B. P. Singh disclosed his identity and 3 FIR No. 89/03 PS: Narcotics Branch identity of the raiding party members to accused persons and the secret information against them. SI B. P. Singh then searched the Maruti Van. Three plastic drums of red colour were found and same were given mark A, B and C. Two drums were recovered from the dickey of the Maruti Van and the same were given mark D and E. On opening of these drums, the liquid was giving a foul smell and SI B. P. Singh found it to be Acetic Anhydride. Two samples of 500 ml. from each drum was taken and were given mark A1, A2, B1, B2, C1,C2, D1, D2, E1 and E2 simultaneously. All the samples and the drums of remaining liquid were sealed with the seal of 3A PS NB DELHI. Three copies of CRCL forms were prepared and same seal was affixed on that. The seal was given to HC Yudhvir Singh. All the sample parcels and recovered case property has taken into possession. SI B.P. Singh prepared Rukka and gave the same to Const. Kuldeep Singh. The above said parcels and CRCL form and copy of the seizure memo was also handed over to Const. Kuldeep Singh who took the same to Police Station in official vehicle being driven by HC Radhey Lal and reached Police Station at 4.05 p.m. He handed over the parcels and copy of the seizure memo and CRCL form to SHO. The SHO has affixed his seal with the seal impression of 1 SHO NBR DELHI 4 FIR No. 89/03 PS: Narcotics Branch and deposited the same with MHC (M) HC Gyan Chand. The further investigation was given to SI Prem Chander who reached the spot on the same vehicle. On reaching the spot, SI Prem Chander was given the relevant documents alongwith both the accused. He prepared the site plan at the instance of SI Brij Pal; recorded statement of witnesses; arrested both the accused persons; recorded their disclosure statement; seized the Maruti Van alongwith its documents. He then brought the Maruti Van and accused persons to Police Station and produced before the SHO S. P. Kaushik. He prepared report u/s 57 NDPS Act and put the same before the SHO. On 23.10.2003, on the secret information about the accused Naeem @ Rahul being present at the House of Matloof Qureshi in Janta Colony, Jafarabad. A raid was organized by HC Bhagwat Dayal and HC Yudhvir and other. Accused Naeem was arrested at about 10.45 p.m from there. At about 10.50 p.m he was brought to Police Station and produced before SHO. The accused was produced in muffled face for TIP and was presented before Ld. MM, in Central Jail and TIP proceedings were done on 10.11.2003. On 14.11.2003, the samples and CRCL form were sent to CRCL, Pusa through Ct. Dilawar Singh but the same could not be deposited. On 19.11.2003, he had 5 FIR No. 89/03 PS: Narcotics Branch filled up CFSL form in the presence of Inspector S. P. Kaushik and had affixed the seal of 1 SHO NBR DELHI and the seal of 3A PS NB DELHI and thereafter the seals were handed over to Inspector S.P.Kaushik and HC Yudhvir Singh respectively. On 21.11.2003, the samples and CFSL form were sent to CFSL Chandigarh through HC Shakir Hussain. After completion of the investigation, a chargesheet was filed.
2. On 2.6.2004 all the accused persons were charged u/s 29 of the NDPS Act alongwith Section 9(A)/25 (A) of NDPS Act and to which accused plead not guilty and claimed trial.
3. In support of its case, prosecution has examined 15 witnesses.
4. The brief discussion of their deposition is as under:-
(i) PW-1 HC Mahinder Singh was working as Duty Officer on 14.10.2003 and had recorded the FIR No. 89/03. Carbon Copy of the same is proved as Ex. PW1/A. He has also proved copy of DD No. 35 Ex. PW1/B.
(ii) PW-2 HC Gyan Prakash was working as MHC (M) on 14.10.2003 and 15 pullandas duly sealed were deposited vide entry number 389 alongwith CRCL form by SHO S. P. Kaushik. He 6 FIR No. 89/03 PS: Narcotics Branch further stated that on 14.11.2003, he sent the pullandas through Const. Dilawar Singh to CRCL, Pusa vide RC No. 147/21, but the same were sent back with the request to send the samples either to FSL or CFSL. Again on 21.11.2003, he sent the pullandas to CFSL Chandigarh through HC Shakir Hussain vide RC No. 152/21.
He also proved jamatalashi of accused Dhyan Singh and Raees Khan conducted by SI Prem Chand on 14.10.2003 and 23.10.2003 respectively vide entry Ex. PW2/B and PW2/C. The road certificate are proved as Ex. PW2/D and Ex. PW2/E.
(iii) PW-3 ASI Virender Singh has proved report u/s 57 of the NDPS Act stating that the same were received in the office of the DCP (Narcotics) on 15.10.2003 and the same were diaried at Sl. No. 1669 and 1670 in the diary register and are Ex. PW3/A and Ex. PW3/B respectively. He further stated that the DCP had signed at point A. In his cross - examination he has stated that entries in diary register are not in his hand and report was not received by him in the office.
(iv) PW-4 Ct. Kuldeep Singh is a material eye-witness to the recovery. He has fully corroborated the prosecution version starting from receipt of secret information by SI B.P.Singh, organization of the raiding party and thereafter apprehension of 7 FIR No. 89/03 PS: Narcotics Branch the accused persons, recovery of the five drums containing Acetic Anhydride having 50 liter liquid in each drum. According to him, recovered drums were given mark. Three plastic drums of red colour were found and same were given mark- A, B and C. Two drums were recovered from the dickey of the Maruti Van and the same were given mark D and E. Two samples of 500 ml. from each drum was taken and were given mark- A1, A2, B1, B2, C1,C2, D1, D2, E1 and E2 simultaneously. He has further deposed that case property kept in drums and in pullandas were sealed with the seal of 3A PS NB DELHI. He has further stated that recovered drums were Ex. PW4/A and CRCL form in triplicate were filled up on the spot and was affixed with the same seal. SI B. P. Singh prepared the rukka alongwith parcels, form CRCL, copy of seizure memo. As per the direction of SI B. P. Singh, he had taken the same to Police Station in Govt. vehicle and handed over to HC Mahinder Singh and other parcels to SHO. The SHO had affixed his seal on all the parcels and on form CRCL and has deposited the same by HC Gyan Prakash and by making entry in register no. 19, vide DD No. 34 to that effect. He has further stated above sealed parcels, form CRCL were remained intact and were not tempered in any manner. He has further stated that further investigation was done 8 FIR No. 89/03 PS: Narcotics Branch by SI Prem Chander and who recorded the statement at about 10 p.m. He identified the case property i.e plastic drums Ex. P-1 to P-5 and liquid substance Ex. P-6 to P-10. The Maruti Van DL5CC 0358 was identified and Ex. P-11 stating that these were the same which were recovered from the possession of accused persons. In his cross-examination, he has stated that the vehicle in which contraband transported was being driven by accused Dhyan Singh. The raiding was done by the IO while sitting in the Ambassador Car parked in the main road of Novelty Cinema. In his cross-examination by Ld. counsel for the accused Naeem @ Rahul, he has stated that Maruti Van was got stopped at the distance of 5-6 meters from the Govt. vehicle and Maruti Van arrived at the spot at about 11.25 a.m.; the IO has first asked the public persons present at Kaudia Pul at about 10.45 a.m. and three public persons were asked at about 11.25 a.m; the IO did not give any written notice to public persons nor he had given any information against them. He has further stated that accused persons total in three numbers remained sitting in Maruti Van for about 3/4 minutes but accused Rahul @ Naeem got down from the Maruti Van and before he could be encircled by the raiding party, he succeeded in running away but accused Dhyan Singh and Raees Khan were apprehended 9 FIR No. 89/03 PS: Narcotics Branch by the raiding party by encircling the Maruti Van. At the same time, HC Vinod tried to chase accused Rahul @ Naeem who run away from the opposite direction of the Govt. vehicle. Further stated that when accused Rahul came out from the Maruti Van and started running, he was sitting in the Govt. vehicle. In his cross- examination by Ld. counsel for accused Raees Khan, he has stated that at Novelty Cinema two persons were asked to join the raiding party and even shopkeepers including ticket collector were not asked to join the raiding party; the Maruti Van was parked at about 2-3 meters ahead of their vehicle (Ambassador car). The window glasses of the Van were transparent and everything in the Maruti Van was visible to them; HC Shakir and HC Vinod were standing towards Mithai Pul whereas he alongwith HC Yudhvir and SI B. P. Singh were in the vehicle and secret informer was with them; after parking of vehicle of 3-4 minutes, they got out from the vehicle and encircled the Maruti Van, the accused Naeem @ Rahul ran away and HC Vinod tried to chase him, they had raised alarm; many people gathered there due to raising of alarm; IO did not ask those persons to join the investigation; the IO did not taste the recovered material and had determined it Acetic Anhydride on the basis of smell; the whole process including weighing the 10 FIR No. 89/03 PS: Narcotics Branch contraband has consumed about 1 hours to 50 minutes; the public persons did not stop because of strong irritation out of substance; he had seen the CRCL form when the same were filled up; he prepared the seizure memo and rukka on the dictation of SI B.P.Singh; the parcels were taken by him to the Police Station in the same vehicle; the SHO had affixed his own seal on the pullandas and also on the FIR; SHO had deposited the case property by calling the MHC (M) and had signed the Register No. 19 in that regard.
(v) PW-5 Chander Pal is the owner of Maruti Van DL5CC 0358 involved in transportation of the contraband recovered. He has deposed that on 10.10.2003 in the morning accused Dhyan Singh had hired his Maruti Van for Rs. 1,000/-. He had again hired his vehicle on 14.10.2003 for Rs. 1,000/- and took away the vehicle which was seized by the Police but he did not know the reason for its seizure. Later on, he came to know that accused Dhyan Singh has misused the vehicle but he had no knowledge, if the accused has misused the vehicle for transportation of any illegal article. In his cross-examination, he has stated that accused Dhyan Singh had telephoned his son on mobile about seizure of the vehicle and he knew accused Dhyan Singh for the last two or three years, as he was residing at a distance of 20-30 houses in the same locality. He 11 FIR No. 89/03 PS: Narcotics Branch further stated that he was having a tempo service by the name of 'Chauhan Tempo Service' and was having only one Maruti Van and 5-6 other commercial tempos.
(vi) PW-6 Inspector S. P. Kaushik who was working as SHO, PS Narcotics Branch on 14.10.2003 has fully corroborated the prosecution version stating that he personally verified the secret information; secret informer were produced before him and after satisfying himself, he passed over the said information to ACP (Narcotics) who ordered to conduct raid. He further stated that SI B. P. Singh lodged DD No. 12 in daily diary register regarding the above secret information and copy of the same was produced before him and was forwarded to ACP (Narcotics). He proved carbon copy of the DD No. 12 Ex. PW6/A stating that it was signed by him at point 'A'. He further stated that about 4.10 p.m., Const. Kuldeep came to Police Station and produced carbon copy of the seizure memo alongwith 15 parcels and CRCL form (in triplicate); all the 15 parcels; and CRCL form were sealed with the seal of 3 APS NB DELHI and he put FIR No. 89/03 with the seal of 1 SHO NBR DELHI on all the 15 parcels and CRCL form and called register no. 19 through HC Gyan Prakash and deposited in the Malkhana vide entry in register no. 19. He further stated that at 12 FIR No. 89/03 PS: Narcotics Branch 4.50 p.m., he lodged entry in DD register regarding the above mentioned proceedings and has proved as Ex. PW6/B. Further stated that at about 8.00 p.m., SI Prem Chander came and produced before him accused Dhyan Singh and Raees Khan and he personally verified the facts by talking to them. On 15.10.2003, two reports u/s 57 of the NDPS Act were produced before him by SI B. P. Singh and SI Prem Chander and he had forwarded the same to ACP (Narcotics). The said reports are proved Ex. PW3/A and Ex. PW3/B. Their carbon copy has proved Ex. PW6/C and PW6/D respectively. He has also deposed about the arrest of accused Naeem @ Rahul on 23.10.2003 and has proved report u/s 57 of the NDPS Act Ex. PW6/E. He further stated that on 14.10.2003, on his direction, Ct. Dilawar Singh took the sample alongwith CRCL form duly sealed for depositing at CRCL, Pusa. But the same were not deposited there because there was no facility in the CRCL, Pusa for chemical analysis of Acetic Anhydride and the samples and CRCL form were deposited in the Malkhana. On 19.11.2003, he was on leave and was called by SI Prem Chander who filled up form CFSL and returned his official seal after putting same on CFSL form. He has also deposed about taking of the samples to CFSL, Chandigarh on 21.11.2003 by HC 13 FIR No. 89/03 PS: Narcotics Branch Shakir Hussain.
(vii) PW-7 HC Shakir Hussain had taken the samples on 21.11.2003 and deposited in the CFSL, Chandigarh vide Road Certificate number 152/21 and had deposed that so long as the sealed parcels remained in his possession, the same were intact and not tempered with.
(viii) PW-8 HC Bijender Singh had joined investigation with second IO SI Prem Chand on 23.10.2003. He has deposed that on the said date, a secret informer met on main road Zafarabad, Bhajanpura, Delhi who told that Naeem @ Rahul was present at the house of Maqbool Qureshi in Janta Colony, Delhi. The accused was accordingly apprehended while standing in front of the said house. He was arrested vide arrest memo Ex. PW8/A and his personal search was taken vide Ex.PW8/B, his disclosure statement was recorded Ex. PW8/C. The accused was directed to cover his face for the purpose of TIP a notice was given to accused Ex. PW 8/D.
(ix) PW-9 HC Bhagwat Dayal is also witness of arrest of Naeem @ Rahul on 23.10.2003 outside the house of Matloof Qureshi, Janta Colony, Jafarabad, Delhi. He has deposed that accused Naeem @ Rahul was present while standing outside the 14 FIR No. 89/03 PS: Narcotics Branch house at about 9.10 a.m. and SI Prem Chand made formal enquiry from him and he told his name as Naeem @ Rahul. The accused was also informed about the investigation and during interrogation, made his disclosure statement Ex. PW 8 /C. SI Prem Chand arrested him vide memo Ex. PW8/A and his personal search was conducted vide Ex. PW8/B. IO served notice upon the accused and asked accused to cover his face informing that his TIP was to be conducted and the said notice was served as Ex. PW8/D.
(x) PW-10 HC Yudhvir Singh is another material eye-witness of the recovery of contraband on 14.10.2003 while transporting in Maruti Van DL5CC 0358 from Hapur to Sita Ram Bazar near Novelty Cinema. He fully corroborated the deposition of other witnesses with regard to receiving of secret information; organization of raiding party; apprehending of accused persons and recovery of contraband on the spot. He has also fully corroborated deposition of recovery witnesses with regard to drawing of the sample from the case property; seizure of the case property and the sample; filling up of CRCL form and sealing of the case property by him alongwith affixing seal on the CRCL form. He had further stated that at about 6.15 p.m., SI Prem Chand arrested accused Raees Khan vide arrest memo Ex. PW- 15 FIR No. 89/03
PS: Narcotics Branch 10/A and his personal search was conducted vide memo Ex. PW- 10/B. He has also proved the disclosure statement of accused Raees Khan Ex. PW-10/C. He further stated that at about 6.45 p.m., accused Dhyan Singh was arrested vide arrest memo Ex. PW-10/D and his personal search was conducted vide memo Ex. PW-10/E and his disclosure statement was recorded vide Ex. PW- 10/F. He has also proved the seizure memo of Maruti Van vide memo Ex. PW-10/G. He has also deposed that on 19.11.2003, SI Prem Chand called him in the office of SHO, where SHO Inspector S. P. Kaushik was also present and he was informed that the samples are to be sent to CFSL, Chandigarh because CFCL, Pusa has no facility of chemical examination of Acetic Anhydride. Then, in his presence fresh CFSL form was prepared and from SI Brijpal he took his seal of 3A PSNB DELHI from him and also from Inspector S. P. Kaushik his seal of 1 SHO NBR DELHI and thereafter affixed both the seals on the CFSL form and thereafter seal of 3A PS NB DELHI was returned to him and his supplementary statement was recorded. On 25.11.2003, he had returned the seal to SI Brijpal. He has correctly identified the 5 drums Ex. P-1 to P-5 and their contents Ex. P-6 to P-10 and Maruti Van Ex. P-11. The remnants of the samples returned from the 16 FIR No. 89/03 PS: Narcotics Branch CFSL, Chandigarh are Ex. P-12 to P-21.
(xi) PW-11 Mrs. Archana Sinha, Ld. MM, Delhi has proved the TIP proceedings of accused Naeem, wherein accused refused to participate despite the caution and warning given to him for drawing adverse inference but despite warning and caution, accused did not participate in the TIP proceedings. The TIP proceedings are Ex. PW-11/A.
(xii) SI Prem Chander is the second Investigating Officer who reached on the spot at about 4.15 p.m where SI Brij Pal handed over relevant documents of this case and both the accused to him; he then prepared the site plan Ex. PW-12/A; recorded statement of HC Yudhvir Singh and after formally arrested both the accused persons; he had also prepared body inspection memo Ex. PW-12/B of accused Raees Khan and body inspection memo of accused Dhyan Singh was also prepared as Ex. PW-12/C. After completing investigation, he had reached Police Station at about 8.00 p.m and produced the accused before SHO Inspector S.P.Kaushik. He has further deposed that on 23.10.2003, he was present in the Police Station Narcotics Branch where he was informed by an informer telephonically that accused Naeem @ Rahul was present in the house of Matloof Qureshi in Janta 17 FIR No. 89/03 PS: Narcotics Branch Colony, Jafarabad, Delhi. After informing the SHO and as per the directions, he organized the raid alongwith HC Bhagwat Dayal, HC Yudhvir Singh, HC Bijender and Const. Umesh Kumar. At about 8.15 a.m. they left the Police Station and reached Main Road Jafarabad, Delhi at about 8.45 a.m.; the informer met them and pointed out to a double storeyed house in Jafarabad Colony where accused Naeem was standing at the gate and was pointed out by the informer. He apprehended accused Naeem and prepared his body inspection memo Ex. PW-12/D and also gave a notice to him to got his face covered as he was required to join the TIP proceedings. He further deposed that on 19.11.2003, he had filled up CFSL form in the presence of Inspector S. P. Kaushik and also called SI B. P. Singh and HC Yudhvir Singh and had taken the seal of 1 SHO NBR DELHI from SHO Inspector S. P. Kaushik and 3A PS NB DELHI from HC Yudhvir Singh and had affixed the seal impressions on the CFSL form in the presence of those persons. The seals thereafter were handed over to Inspector S. P. Kaushik and HC Yudhvir Singh respectively. On 21.11.2003, he had sent the samples alongwith CFSL form to CFSL, Chandigarh through HC Shakir Hussain who had deposited them and brought the receipt. The CFSL results proved to be Ex. PW-12/X. He had also proved 18 FIR No. 89/03 PS: Narcotics Branch the RC and insurance certificate of vehicle number DL5CC 0358 as Ex. PX1 and Ex. PX2.
(xiii) PW-13 HC Dilawar Singh has taken the samples duly sealed with the seal of 3A PS NB DELHI and 1 SHO NBR DELHI alongwith FSL form to the CRCL Lab, DELHI vide RC No. 147/21. He further deposed that parcels could not be deposited there, that the same can be deposited with CFSL or FSL and he had returned alongwith MHC (M) on the same day. So long as the parcels remained with him , the same were not tempered with.
(xiv) PW-14 SI B. P. Singh, IO of the case and has fully corroborated the prosecution case while supporting on all relevant points. He has deposed that he took IO bag, field testing kit, one plastic drum, two kuppi and one pump alongwith 10-12 plastic bottles Ex. PW-14/A and left the Police Station at about 10.15 a.m. in the Govt. vehicle number DL1CF 5342 being driven by HC Radhey Lal and the informer and members of the raiding party. He further stated that he prepared rukka Ex. PW-14/A and handed over the same to Const. Kuldeep alongwith case property, CRCL form and copy of the recovery memo with the direction to handover the rukka to Duty Officer and remaining things to SHO. At about 4.45 p.m SI Prem Chand reached the spot and he 19 FIR No. 89/03 PS: Narcotics Branch produced the accused alongwith other relevant documents before him, SI Prem Chand prepared site plan at the instance of SI B.P.Singh and recorded statement of HC Yudhvir Singh. He further stated that on 19.11.2003, SI Prem Chand recorded his statement. He has filled up CFSL form for depositing the sealed parcels to CFSL, Chandigarh. He has correctly identified the case property and remnants of the samples. In his cross-examination he has stated that sealing, sampling and seizing work was done on the footpath while the writing work was done while sitting in the Govt. vehicle. The proceedings were conducted on the side of the Novelty Cinema and they had conducted the proceedings on the right side of the main gate, if we face the cinema. He further stated in his cross-examination that the vehicle in question had stopped in between the Novelty Cinema and Fire Station; the boundary wall extended to the said place where the vehicle has stopped; they might have reached the vehicle in question within one minute; all the members of the police party had reached to the said vehicle together at the same time.
(xv) PW-15 Dr. A. K. Dalela, Deputy Controller Explosives, Bhopal has deposed that on 21.11.2003, he was working as Junior Scientific Officer in CFSL, Chandigarh where 5 sealed parcels 20 FIR No. 89/03 PS: Narcotics Branch having 2 seals each of them; one of 3 APS NB DELHI and another 1 SHO NBR DELHI were received through HC Shakir Hussain alongwith CFSL form and related documents; these were marked as A1, B1, C1, D1 and E1. Before opening the parcels, he compared the seals on the parcels and found that the seals were intact and tallied with the specimen seals; thereafter he opened the parcels and he found colourless liquid with pungent smell in each parcel kept in plastic bottles. On chemical analysis of Gas Chromatography and lab testing, exhibits mark- A1 to E1 were detected to be Acetic Anhydride with the percentage of 76.7% in A1, 79.6% in B1, 77.5% in C1, 78.5% in D1 and 76.1% in E1. His report has been proved as Ex. PW-12/X. In his cross-examination, he has stated that he has analysed the samples and given his report on the basis of the findings.
5. All the accused were examined u/s 313 Cr.PC in which they have denied the allegations stating that they were innocent and falsely implicated and desired to lead evidence in their defence.
6. (i) DW-1 Karan has deposed that at about 5-6 years ago, at about 9 a.m he was present outside his office taxi stand, 21 FIR No. 89/03 PS: Narcotics Branch Seelampur; 3 police personnels came and had taken away Dhyan Singh from there and accused Dhyan Singh was working as a driver at the said taxi stand. In his cross-examination he did not remember the day, week when police had taken away the accused; he cannot give the number of taxi which the accused used to ply.
(ii) DW-2 Mobeen Khan has deposed that on 22.10.2003 at about 6.30 a.m., 3-4 police personnels had come to the house of accused Naeem in Sheesh Garhi. Father of the Naeem told that they had taken him for an enquiry in case of theft. In his cross- examination he has stated that he did not remember the day of 22.10.2003 and have not lodged any police complaint for taking away accused on the pretext of making enquiry in the theft case. He has admitted that he came to depose being neighbour of the accused.
(iii) DW-3 Imran Ali had deposed that he knew Naeem as a person deals in the business of manufacturing chappal. On 13.10.2003, 4-5 police personnels reached at his factory, enquired about the whereabouts of Raees Khan and on his pointing out, they had taken away the accused saying that there was a complaint against him; after 2-3 house he went to Police Station Seelam Pur for knowing whereabouts of accused Raees Khan and 22 FIR No. 89/03 PS: Narcotics Branch was told that he had been taken to Police Station Kamla Market and he reached at Police Station Kamla Market and was informed that accused will be released in the night. In his cross- examination, he has stated that he has no licence to run a factory; 5-6 persons are employed in that factory; he did not lodge any police complaint again those police persons.
7. I have heard Ld. defence counsel for accused persons and perused the written submission filed on behalf of accused Raees Khan and Naeem. Ld. counsel for accused persons has assailed the prosecution case on the following grounds:-
A) There is no evidence to show that allegedly recovered Acetic Anhydride was to be used for manufacturing of drugs and as such case does not fall u/s 9(A) of the NDPS Act. Mere recovery of that substance per se will not bring the offence u/s 9(A) of the NDPS Act and prosecution evidence was to establish that 250 litres of Acetic Anhydride was to be used for manufacturing of narcotics drugs or psychotropic substance. B) Provision of Section 42 of the NDPS Act has not been complied because the secret information was not 23 FIR No. 89/03 PS: Narcotics Branch recorded separately and also the same was not sent to ACP. It is admitted by Inspector S. P. Kaushik PW-6 that information was recorded in DD No. 12 which was sent to ACP through the Reader of the Police Station and there is no such evidence brought on record to prove that such information was ever received by the ACP. Compliance of Section 42 was mandatory and for that reason case of the prosecution is not proved because of non-compliance of Section 42 of the NDPS Act. Reliance has been placed on 2007, Vol. II JCC Narcotics p-80 in "Peera Swami Vs. NCT" in paras 6 &
7. It was held that Section 42 (1) of the Act casts a duty on the police official to reduce the information in writing whenever an offence in respect of narcotic drugs or psychotropic substance comes to his knowledge. After he reduces the information in writing, it is his duty to send a copy of the information to his superior officers within 72 hours. This procedure is not a mere formality but it provides a safeguard for false implication of persons. Ld. counsel has put further reliance on 2000 Vol. I Apex Decision Delhi "Rajinder Kumar @ Babu 24 FIR No. 89/03 PS: Narcotics Branch Vs. State NCT" paras 8 & 9. It was held that if, the information was recorded in DD and the same was not sent to the immediate superior officer, that would cause violation of Section 42 (2) of the NDPS Act and causing prejudice to the appellant / accused. There should be total non-compliance of this provision which would effect the prosecution case unless there is explanation for this total non-compliance. (Further relevance has been placed in that regard on AIR 2000 Supreme Court 821 "Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat").
C) The prosecution case suffers from non-
compliance of Section 57 of the NDPS Act. PW-3 ASI Bijender Singh who has proved the said reports in his cross-examination admitted that entry regarding receipt of report in the office of DCP was not in his hand and the said report was not received by him in the office. Even the name of the person who brought the report also not mentioned in the diary register. The said witness even nowhere stated that he had worked with the DCP and was acquainted with the signature of 25 FIR No. 89/03 PS: Narcotics Branch the DCP. Hence, there is no evidence to show that the reports were received in the office of DCP who has not been examined. Ld. counsel has put reliance on AIR 1995 in "Mohinder Kumar Vs. State of Panaji". It was held that the provisions of Section 52 & 57 of NDPS Act are dealing with the steps taken by the officer after making arrest, search or seizure are mandatory in character.
D) The prosecution has failed to establish that the samples and the case property before the same were sent to CFSL, Chandigarh remained intact and not tempered with. It is so because the samples were sent to CFSL, Chandigarh on 21.11.2003. A letter of DCP dt. 13.11.2003, which is Ex.PW-12/DB, written to FSL, Malviya Nagar and its contents shows that samples of Acetic Anhydride were taken by the IO alongwith duly filled up prescribed forms required for examination and the same were enclosed therewith. This letter categorically shows that when this letter was issued, sample were already taken by the IO from the Malkhana alongwith CRCL form. It is further admitted 26 FIR No. 89/03 PS: Narcotics Branch in the evidence of the IO that he already knew that FSL, Malviya Nagar did not have the facility to chemically examine Acetic Anhydride, then what was the occasion for the DCP to send samples to FSL, Malviya Nagar and these facts shows that there is manipulations in the samples when the same remained in the possession of police before it was sent to CFSL, Chandigarh. Ld. counsel has put reliance on 1990 C.C. Cases 69 (HC), Pradeep Kumar Vs. State (Delhi) - It was held that the CFSL form containing the specimen of seal is required to be deposited in the Malkhana because only that course can provide assurance that seal has not been tempered with. Therefore, a serious doubt is created in the prosecution story to the effect that the whole case and the facts are manipulated in the Police Station and nothing as stated was recovered from the alleged accused persons. Ld. counsel has put reliance on 1993 JCC "Saifulla Vs. State of NCT". In this case, CFSL form not filled up as it was apparent from the testimony of the witnesses nor it was deposited with the Malkhana. The Hon'ble High Court has considered the effect of 27 FIR No. 89/03 PS: Narcotics Branch consequences of non deposit of CFSL form with Malkhana particularly, when the seal was not handed over to the independent witness. It was held that the possibility of tempering with the sealed parcels cannot be ruled out. Further, once a doubt is created in the preservation of the sample, the benefit of the same is given to the accused.
E) No independent public person either in the raid or in the investigation has joined and the explanation given by the IO is not satisfactory and the place of recovery is a thickly populated area. Ld. counsel has also put reliance on 32(1987) DLT1, 34 (1988) DLT 124 and 2006 (3) JCC 150. In 32(1987) DLT 1 , it was held that if explanation of non joining of the public witnesses was not satisfactory for want of notice to them and not recording their name and address this fact shall prove to be fatal to the prosecution. In 34(1988)DLT 124 it was held that if description of the public persons asked to become witness to the search and seizure is not recorded by the IO, it shall amount to making no attempt to join public witnesses at the time 28 FIR No. 89/03 PS: Narcotics Branch of recovery. If there was no urgency of the matter and for variety of other reason the strict compliance of the provisions was not required, the recovery in the absence of public witnesses without sufficient explanation for non joining become doubtful. In 2006(3) JCC 150 it was held that if the place of recovery was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time at the place of occurrence. If no attempt was made to make them witness without noting their name and addresses, a doubt would be created regarding signing of the documents on the spot.
F) No adverse inference can be drawn against accused Naeem who refused to join the TIP because the raiding party constituted for his arrest was also having as its members HC Yudhvir Singh as well as HC Bijender, who was member of the raiding party on 14.10.2003. As such in case he was apprehended on 23.10.2003 at Janta Colony, Jafarabad, Delhi and he could be identified by HC Yudhvir Singh and HC Bijender and there was no occasion at the instance of 29 FIR No. 89/03 PS: Narcotics Branch secret informer. In case he has been apprehended at the instance of secret informer and HC Yudhvir Singh and HC Bijender were not able to identify him, therefore, it concludes that he was never present on the spot of occurrence on 14.10.2003 and story of prosecution in that regard is falsified. Since accused Naeem was falsely implicated, therefore, refusal to join the TIP was justified.
It is, therefore, argued that the prosecution has failed to prove its case beyond reasonable doubts and accused are entitled to acquittal.
8. Ld. Addl. PP for the State has argued that all the witnesses have fully supported the prosecution case while corroborating on all material points. The IO had made sincere efforts to join the public witnesses and there is no negligence in that regard. It is forcefully contended that PWs were subjected to lengthy cross - examination and witnesses has with stood the test of cross- examination as their testimony could not be discredited on any score whatsoever. It is also argued that the police officials are 30 FIR No. 89/03 PS: Narcotics Branch competent witnesses and their testimony can not be discarded merely on the ground that they are interested witnesses in the success of their case. It is argued that requirement of Section 42 and 57 of the NDPS Act has been complied with and prosecution has also established that the sample and the case property remained intact in Malkhana and was not tempered with. Ld. Addl. PP for state argued that accused are liable to be convicted.
9. I have considered the rival contentions made by both the sides and given my careful thoughts to the same.
10. Regarding the first contention of Ld. defence counsel that the prosecution has not established that the recovered Acetic Anhydride was to be used for manufacturing of drugs, I have gone through the notification dated 24.3.1993 issued by Ministry of Finance, Department of Revenue, Narcotics Control Bureau, Delhi wherein that substance has been declared a controlled substance. Therefore, the possession and transportation of this substance was controlled and same can be done after following the procedure laid down therein. Moreover, that circumstance was in the exclusive knowledge of the accused persons as to for what purpose they were carrying the alleged controlled substance. 31 FIR No. 89/03
PS: Narcotics Branch Therefore, it was incumbent upon the accused persons to prove that they had the permission to possess the said controlled substance. In their statement u/s 313 Cr. PC, they have simply denied having recovered from their possession the controlled substance Acetic Anhydride. The recovered substance i.e. Acetic Anhydride is primarily used in the manufacturing of cellulose acetate for films and plastic goods. It is also used in manufacturing of industrial chemicals, perfumes, plastics, synthetic fibers,. explosives and weed killers. It is also used in preparation of pharmaceuticals and used in production of aspirin. Apart from these, the same is also used in manufacturing of heroine and for that purpose the said substance has been controlled and it is use has been restricted. It is not the case of accused person that they are involved in any occupation of having use of this controlled substance. Further, it is not the case of accused persons that they had the necessary licence / permit to possess this controlled substance.
11. Regarding the contention of the non-compliance of provision of Section 42 of NDPS Act, I have gone through the evidence of SI B. P. Singh PW-14 who has stated that on 14.10.2003, he was posted at Police Station Narcotics Branch and 32 FIR No. 89/03 PS: Narcotics Branch on that date when he was present at the Police Station at about 9.40 a.m., a informer gave information that two boys namely Raees Khan and Naeem alongwith their associate Dhyan Singh who are indulged in supply of chemical Acetic Anhydride and after arranging the same from Hapur, would come at Novelty Cinema in Maruti Van No. DL5CC 0358 between 11 a.m. to 12 noon and would supply the same to somebody. After satisfying himself; he took the informer to SHO Inspector S. P. Kaushik and produced before him who also verified information from the informer and after satisfying himself he passed information to ACP Sh. Mehar Singh at his office on telephone who directed to conduct raid; he lodged DD No. 12 at 10 a.m. and carbon copy of the same was put up before SHO S. P. Kaushik for forwarding the same to his senior officers. The carbon copy of the same was Ex. PW6/A. Nothing was suggesting in the cross-examination of SI B. P. Singh with regard to recording of secret information vide DD No.12 Ex. PW-6/A or passing of the same by SHO to ACP telephonically and thereafter sending the copy of the same to higher officers. Thus deposition of SI B.P. Singh regarding receiving of secret information and recording of the same as DD No. 12 and passing of the same information by the SHO to the ACP telephonically and thereafter 33 FIR No. 89/03 PS: Narcotics Branch by sending the copy of the same is unchallenged.
12. I have also gone through the evidence of Inspector S.P.Kaushik PW-6, who was SHO of Police Station Narcotics Branch at that time. He has deposed that he was present on that day i.e. 14.10.2003 at Police Station Narcotics Branch. At about 9.50 a.m, while he was present in his office, SI B. P. Singh alongwith an informer passed information that two persons namely Raees and Naeem, resident of Bareily, U. P. alongwith one Dhyan Singh, resident of Seelampur are indulging in sale of Acetic Anhydride used in preparation of heroin and after procuring the same from Hapur would come to Novelty Cinema for the supply of Acetic Anhydride in Maruti Van No. DL5CC 0358; the Acetic Anhydride would be handed over to somebody in Seeta Ram Bazar and all the three persons would come to Novelty Cinema in between 11.00 a.m. to 12.00 noon alongwith Acetic Anhydride. He personally verified the said information by talking to the informer and after satisfying himself; he telephonically passed the said information to ACP Mehar Singh, who ordered him to conduct raid and took appropriate action; SI B. P. Singh lodged DD No. 12 regarding the above said information and copy of the same was produced before him which was forwarded by him to ACP on the 34 FIR No. 89/03 PS: Narcotics Branch same day. He has also brought the original DD No. regarding Ex.PW-6/A. In his cross-examination, he admitted that the secret information was not recorded separately other than DD No. 12 and he had sent the copy of the same to the ACP through his Reader and receipt of the DD No. 12 was received in the Dak Register but he had not filed the copy of the same with the challan. Thus, according to the prosecution witnesses, the secret information is reduced into writing by DD No. 12 Ex. PW-6/A and was forwarded to ACP. The secret information was also passed on the same day to the ACP telephonically by the SHO and his evidence in that regard is unchallenged as nothing has been suggested that he had not telephonically passed the information to the ACP. The stress of the Ld. defence counsel for the accused was that since receiving of the copy of DD by ACP has not been placed on record, as such, no such information was given to the ACP and there was non-compliance of Section 42 of NDPS Act. Thus, it is not a case of giving no information to higher officers as required by the Section 42 of NDPS Act. No prejudice has been caused to the defence of accused, if the information has been conveyed through telephone, because neither the SHO nor the ACP Mehar Singh were members of the raiding party and has not 35 FIR No. 89/03 PS: Narcotics Branch witnessed the recovery from the accused persons. Even in the absence of filing of proof of receiving copy of Ex. PW-6/A by the ACP; the provision of Section 42 of NDPS Act has been sufficiently complied with.
13. Regarding the non-compliance of provision of Section 57 of NDPS Act, I have gone through the evidence of PW-3 ASI Virender Singh who has deposed that on 15.10.2003, two reports u/s 57 of the NDPS Act were received in the office of DCP (Narcotics), which was sent by SHO, Police Station Narcotics Branch, Kamla Market through ACP (Narcotics). The same were diaried at Sl. No. 1669 and 1670 in the diary register. The said reports are proved as Ex. PW-3/A and Ex. PW-3/B. He categorically admitted that DCP had seen the same and signed at point- A. The main contention of the Ld. defence counsel regarding admissibility of Ex. PW-3/A and Ex. PW-3/B is that this witness had not received the said reports and that the entry in the diary register was not made by him. Nothing has been suggested to this witness that the said reports had not been seen and signed by the DCP. Moreover, both the Investigating Officers SI Prem Chander PW-12 and SI B. P. Singh PW-14 has categorically stated that they had produced the same reports u/s 57 of the NDPS Act 36 FIR No. 89/03 PS: Narcotics Branch before the SHO. SHO Inspector S. P. Kaushik PW-6 has also categorically stated that on 15.10.2003, two reports u/s 57 of NDPS Act regarding the seizure of Acetic Anhydride and the arrest of accused persons by SI Prem Chander and SI B.P.Singh respectively received; both the reports were forwarded to ACP Narcotics and the same are Ex. PW-3/A and Ex. PW-3/B. Carbon of the same are Ex. PW-6/A. Thus, the deposition of these witnesses have sufficiently established that the provision of Section 57 NDPS Act has been complied with and no prejudice has been caused to the defence of the accused persons.
14. Regarding the contention of tempering of the case property, I have considered the evidence of relevant witnesses. PW-2 HC Gyan Prakash was working as MHC (M) on 14.10.2003 at PS Narcotics Branch. He has deposed that on that day, SHO Inspector S. P. Kaushik has deposited with him 15 pullandas vide entry number 389 alongwith CRCL form. He sent the pullandas to CRCL, Pusa through Ct. Dilawar Singh vide RC No. 147/2 but the same were sent back by CRCL, Pusa with the request to send the sample either to FSL or CFSL. He has further deposed that on 21.11.2003, he has sent pullandas through HC Shakir Hussain vide RC No. 152/21. He categorically deposed that so long as the case 37 FIR No. 89/03 PS: Narcotics Branch property remained with him, the same was not tempered with. In his cross-examination, he has stated that CFSL form was given by SI Prem Chand on 14.11.2003 but he did not make any entry in register and he further stated that he had orally informed his senior officers including SHO and DCP that samples were not accepted by the Pusa Laboratory. PW-7 HC Shakir Hussain has stated that on 21.11.2003, on the direction of SHO Inspector Ajay Sharma, he had taken 5 sample parcels mark -A-1, B-1, C-1, D-1 and E-1 and one CFSL form duly sealed with the seals of 3APS NB DELHI and 1 SHO NBR DELHI vide Road Certificate No. 152/21 for depositing the same to CFSL, Chandigarh. He left the Police Station on 21.11.2003 at 7.30 a.m. and deposited the same at CFSL, Chandigarh and returned to the Police Station on 24.11.2003 at about 10.00 a.m. He further deposed that so long as the parcels remained with him, it was not tempered and seal remained on it intact. PW-13 HC Dilawar Singh who has taken the sample parcels alongwith CRCL form deposed that on 14.11.2003, he had taken a sample parcel duly sealed with the seal of 3APS NB DELHI and 1 SHO NBR DELHI alongwith form CRCL and had taken to CRCL, Delhi vide RC No. 147/21. He further stated that parcels were returned with the objection that the same be deposited 38 FIR No. 89/03 PS: Narcotics Branch either through CFSL or FSL; he returned the same to MHC (M) on the same day. He categorically deposed that so long as the parcel remained with him, it was not tempered with. No cross- examination was carried out by accused persons and his deposition is unchallenged. PW-12 SI Prem Chander who has filled up CFSL form on 19.11.2003 has deposed that on 19.11.2003, he has filled up CFSL form in the presence of Inspector S.P.Kaushik after he was called from his residence as he was on leave. He has also called SI B. P. Singh and HC Yudhvir Singh and had taken the seal of 1SHO NBR DELHI from Inspector S.P.Kaushik and the seal of 3APS NB DELHI from HC Yudhvir Singh; he had affixed seals on the aforesaid CFSL form in the presence of aforesaid personnels; the seals were handed over to Inspector S. P. Kaushik and HC Yudhvir Singh; the CFSL form was deposited by him in the Malkhana. In his cross-examination by Ld. defence counsel for accused Raees Khan and Naeem, he has deposed that he had not sent the case property to FSL, Malviya Nagar; on 14.11.2003 a letter was received from FSL, Malviya Nagar Ex. PW-12 /DA stating that the facility was not available there to analyse Acetic Anhydride; he had not filled up any FSL form for sending the case property to FSL, Malviya Nagar and the 39 FIR No. 89/03 PS: Narcotics Branch information was sought from FSL, Malviya Nagar by merely sending a letter. The fresh CFSL form was prepared on 19.11.2003 and samples were sent to CFSL, Chandigarh on 21.11.2003 and he further stated that on 19.11.2003 the CFSL form was deposited with the MHC (M).
15. The main contention of the Ld. defence counsel was that the samples have been tempered with because the same were taken out on 14.11.2003 and were sent to FSL, Malviya Nagar alongwith letter of DCP.
16. The contention of the Ld. APP for the State is that DCP has simply written a letter dt. 13.11.2003 Ex. PW-12/DB to clarify from FSL, Malviya Nagar regarding the analysis of Acetic Anhydride and the samples were not sent with the said letter.
17. It is not material as to when the samples were taken out from the Malkhana either sending to CFSL or FSL. The material aspect is whether the seals remained intact till the same were sent to CFSL, Chandigarh. The Store Room register Part-I entry Ex. PW-2/A, has clearly shown that on 14.11.2003, 5 sample pullandas having the seal of 1 SHO NBR DELHI and 3APS NB DELHI and 10 sample parcels containing half litre each Acetic Anhydride bearing mark A1, A2, B1, B2, C1, C2, D1, D2, E1 and E2 40 FIR No. 89/03 PS: Narcotics Branch were deposited in the Malkhana alongwith three copies of CRCL having seal of 1 SHO NBR DELHI and 3APS NB DELHI. The said entries were signed by S. P. Kaushik, SHO, Police Station Narcotics Branch, Delhi. The entry A1 to E1 dt. 14.11.2003 has shown that 5 sample parcels mark -A1 to E1 alongwith CRCL form was sent to CRCL, Pusa through Ct. Dilawar Singh. It is also mentioned that CRCL, Pusa has refused to take the samples for sending the same either to CFSL or FSL. The entry dt. 21.11.2003 clearly shows that parcels mark A1 to E1 alongwith CFSL form were sent to CFSL, Chandigarh vide RC No. 157/21 through HC Jakhir Hussain. The entry for deposit of sample parcels and entry for deposit of personal search was Ex. PW-2/A and Ex. PW2/B, clearly shows that parcels mark A1 to E1 were having the seal of 1 SHO NBR DELHI and 3APS NB DELHI. The said fact is also confirmed from the CFSL report Ex. PW-12/X. In the said record, the description of the parcels mark- A1 to E1 has been mentioned as 5 sealed cloth parcels, each sealed with the seal of 1 SHO NBR DELHI and another seal of 3APS NB DELHI containing Ex. A1, B1, C1,D1, E1 respectively in plastic bottles. It is also mentioned that the above mentioned seals are tallied with the specimen seals on CFSL form. Thus the deposition of prosecution witnesses and the CFSL report 41 FIR No. 89/03 PS: Narcotics Branch Ex. PW-12/X has sufficiently proved that the sample parcels mark A1 to E1 remained intact till the same were received in CFSL on 21.11.2003 and the same has been received duly sealed with the seal so long as remained intact and tallied with the specimen seals. In the light of above discussion, the contention of the Ld. defence counsel does not hold water and accordingly, rejected.
18. Regarding the contention of non-joining of public witnesses, It is true that the police had prior information against the accused. It is not a case where the accused had been apprehended and it had led to a chance recovery of contraband from them. In the case of prior information against the accused, was it not imperative for the police to have joined independent witnesses in the raid. The Ld. APP has drawn my attention to the testimony of the three recovery witnesses, wherein they have stated that they had tried to join the independent witnesses but all of them had refused. The Ld. APP has contended that the general public is not willing to join the police investigation either because of inconvenience caused to them on account of appearance in the Court or because of fear of accused. It is, further, contended on behalf of Ld. APP for State that the statements of official witnesses should not be brushed aside and rather should be relied upon to 42 FIR No. 89/03 PS: Narcotics Branch base conviction against the accused.
19. Hon'ble High Court of Delhi in Govt. of NCT Delhi Vs. Sunil (2001) 1 SCC 652 held that "It is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. It is hangover persisted during post-independent years but it is now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a preposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain articles was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good 43 FIR No. 89/03 PS: Narcotics Branch reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
20. Regarding the joining of public witnesses, SI B. P. Singh deposed that at about 10.35 a.m when they reached at Kaudiya Pul via Raj Ghat, Hanuman Mandir, he asked 3-4 passers-by and two rickshaw pullers to join the raid but they all refused. At about 10.55 a.m when they reached at Novelty Cinema, he again asked 3- 4 passers-by to join the raid but they all refused.
21. Regarding non-joining of public witnesses at the time of recovery in pursuant to disclosure statement of the accused, in criminal appeal no. 327/2002 Shashi Shekhar @ Neeraj @ Raju Vs. State, decision dt. 23.5.2007 Hon'ble High Court of Delhi was pleased to hold that evidence of police witnesses cannot be discarded for the reason that no public witness was joined at the time of recoveries. The evidence of police witnesses could be 44 FIR No. 89/03 PS: Narcotics Branch relied upon, if no serious infirmity is pointed out in their evidence on behalf of the accused. Just because the recovery witnesses are police official, it cannot be said that their evidence is not of an independent character because both are government servants and there is a presumption u/s 114, illustration (e) of the Evidence Act regarding the fact that all officials acts by government servants were regularly performed. It was further held, if an accused wants to rebut this presumption he can do so by bringing on record relevant material either by producing his own evidence or during the cross-examination of the witnesses from which a doubt may enter the judicial mind regarding the genuineness of the acts which the police witnesses claim to have performed while discharging their official duties during the investigation of a crime. In Praveen Kumar Vs. State of Karnataka reported as (2003) 12 SCC 199 it was held that where the court is satisfied that the evidence of police officials can be independently relied upon then there is no prohibition in law that the same cannot be accepted without any independent corroboration.
22. I have gone through the statements of the PWs in a careful manner. I find ample corroboration in the testimony of 45 FIR No. 89/03 PS: Narcotics Branch the PWs, especially the recovery witnesses. They have deposed uniformly about the receipt of information against the accused, the organization of a raiding party and the manner of apprehension of the accused. They have also corroborated each other on the point of recovery of contraband Acetic Anhydride from the accused Raees Khan and Dhyan Singh. They have successfully withstood the test of lengthy cross-examination. Their statements have not been discredited on any material aspect of the case. There is nothing material on record to show that they have deposed falsely with a bias against the accused. The deposition of police officials in this case is found to be coherent and trustworthy.
23. The prosecution evidence has sufficiently established that 5 parcels containing 250 litres of Acetic Anhydride, a controlled substance was recovered from the possession of accused persons. The burden of proving the fact within the knowledge of the accused as to the said controlled substance was not to be used for preparation of heroine was upon on them. It is not the case of accused persons that the said substance was to be used for some other purpose than preparing heroine. Section 106 of Indian Evidence Act states that "when any fact is especially 46 FIR No. 89/03 PS: Narcotics Branch within the knowledge of any person, the burden of proving the fact is upon him". Illustration (a) of Section 106 of Indian Evidence Act provides that "when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of providing that intention is upon him".
24. There is nothing on record brought by the accused persons even in their defence that the controlled substance recovered from their possession was to be used for permissible purposes and not for preparation of narcotics heroine.
25. For that reason, the contention of the Ld. defence counsel does not hold water and it is liable to be rejected.
26. Regarding the contention of Ld. defence counsel to the refusal of accused Naeem to join the TIP, it is argued that there is no evidence to link the accused Naeem @ Rahul with the offence alleged and no adverse inference can be drawn against him.
27. I have gone through the relevant witnesses. According to the prosecution case, while the Maruti Van was encircled by the raiding party, accused Naeem got down and ran away. While he was running away, he was chased by HC Vinod but could not be apprehended. HC Vinod has neither been cited nor has been 47 FIR No. 89/03 PS: Narcotics Branch examined as witness. Thus that aspect of the prosecution case that accused Naeem ran away from the Maruti Van and was chased by HC Vinod has not been established. PW-4 Kuldeep Singh in his cross-examination deposed that when the raiding party encircled the Maruti Van, accused Naeem ran away and HC Vinod tried to chase accused but he ran away in the opposite direction. According to the deposition of PW-9 HC Bhagwat Dayal accused Naeem was arrested on 23.10.2003 on the basis of secret information when he was found in the House of Matloof Qureshi in Janta Colony, Jaffarabad, Delhi. Since some police officials present at the time of arrest of Naeem @ Rahul on 23.10.2003 were also member of the raiding party who apprehended the accused persons on 14.10.2003, therefore, no adverse inference can be drawn against accused Naeem @ Rahul for his non-joining of TIP. Further, in the absence of testimony of HC Vinod, the presence of accused Naeem @ Rahul in the Maruti Van on 14.10.2003 and his running away from the spot is not established beyond reasonable doubt. I, therefore, agree with the Ld. defence counsel that the evidence on record is not sufficient to link the accused Naeem @ Rahul with the offence.
28. From the above discussion, the prosecution has failed to 48 FIR No. 89/03 PS: Narcotics Branch establish its case against accused Naeem @ Rahul, therefore, he is acquitted from the charge framed against him.
29. Accused Raees Khan and Dhyan Singh are charged u/s 9A/25A/29 NDPS Act. It is admitted by the IO that he has not clarified regarding the source of supply of Acetic Anhydride. Moreover there is nothing on record to show that prosecution has established criminal conspire amongst the accused persons for the supply of controlled substance used for the preparation of heroine in Delhi. The prosecution has failed to establish charge u/s 29 of NDPS Act.
30. However, from the above discussion, I am convinced that on 14.10.2003, accused Raees Khan and Dhyan Singh were apprehended by raiding party headed by SI B. P. Singh and 250 liters of Acetic Anhydride, a controlled substance was recovered from their possession being transported in Maruti Van DL5CC 0358 and there is contravention of Section 9 (A) of NDPS Act. I, therefore, hold them guilty and convict them for the offence under Section 25 (A) of NDPS Act.
Announced in the open Court on 29.10.2009 (RAJ KUMAR CHAUHAN) ADDITIONAL SESSIONS JUDGE (West)DELHI/29/10/09