Delhi District Court
State vs . Shabnam @ Shabana Begam on 21 December, 2015
IN THE COURT OF SH. AJAY KUMAR MALIK: METROPOLITAN MAGISTRATE-(CENTRAL)-04 TIS HAZARI COURTS, DELHI STATE VS. SHABNAM @ SHABANA BEGAM FIR NO. 82/03 U/S: 21/61/85 NDPS Act P.S. : Narcotics Branch Unique Case ID No. :02401R12031622006 Date of institution of case :28.10.2003 Date on which case reserved for :21.12.2015 judgment Date of judgment :21.12.2015 JUDGMENT U/S 21/61/85 NDPS Act a)Date of offence :19.09.2003. b)Offence complained of :U/s 20/61/85 NDPS Act. c)Name of accused, his parentage : Shabnam @ Shabana & residence W/o Sh. Irshad R/o Dabar Talab, Sangam Vihar, Loni, Ghaziabad, U.P. d)Plea of accused :Pleaded not guilty e)Final Order :Accused is acquitted JUDGMENT
FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 1 of 32 BRIEF FACTS AND REASONS FOR DECISION :
Case of the prosecution in brief is as follows:
1. On 17.09.2003 at about 10:30 AM SI Attar Singh received the secret information regarding supply of heroin at about 11:15 AM to 12:00 Noon by accused Shabnam at Yamuna Pushta, Sanjay Amar Colony, near Electric crematorium. The information was conveyed to SHO concerned. After verification of information from the secret informer, the same information was conveyed by SHO concerned to ACP Narcotics, Mehar Singh. On receiving the directions for raid from the ACP, DD No. 18 was registered. The raiding party was constituted by SI Attar Singh which was comprising of Ct. Virender, Ct. Kanta, Ct. Naresh, Ct. Ravinder and Secret Informer. SI Attar Singh along with secret informer reached the electric crematorium, Yamuna Pushta, Delhi via Delhi Gate Ring Road, Shanti Van, Vijay Ghat at about 11:15 AM in the Government Vehicle DL1V 3570 driven by driver Tavinder Singh.
SI Attar Singh asked the 8 passersby and four rickshaw pullers to join the raiding party but they refused to join the same due to their own personal constraints. The spot of offence was cordoned after briefing the staff. SI Attar Singh along with W/Ct. Kanta, Ct. FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 2 of 32 Virender and Secret Informer taken their position at Vijay Ghat side and remaining staff taken their position at iron bridge side and started waiting for the accused - Shabnam. At about 11:30 AM, at the instance of secret informer accused Shabnam was apprehended at main gate of electric crematorium with the help of W/Ct. Kanta while coming from iron bridge side. On apprehension, the name of accused was discovered to be Shabnam @ Shabana W/o Sh. Irshad @ Bhaloo R/o House No. 88, Dabur Talab, Bengali Pir Pargana, Loni, Distt. Ghaziabad. SI Attar Singh apprised the accused about himself and his staff and also with the secret information with them. SI Attar Singh issued a notice U/s 50 NDPS Act to the accused, same was also read over to the accused. Accused was also apprised that she can get herself personally searched in presence of some gazetted officer but the accused refused for such personal search before some gazetted officer. Accused also not exercised her option to search any police person or W/Ct. Kanta. Accused was illiterate, therefore, SI Attar Singh recorded the refusal of the accused in his own handwriting on the original copy of Notice U/s 50 NDPS Act and accused put her right thumb impression on that notice. At the directions of SI Attar Singh, woman Ct. Kanta took the accused in the vehicle and took FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 3 of 32 her cursory search on which she recovered a light coloured polythene and produce before SI Attar Singh and also stated that it has been recovered from right side of the salwar worn by accused. On checking, SI Attar Singh found a white colour polythene pouch in the polythene bag recovered from the possession of the accused. On opening that pouch some soil coloured powder was found in the pouch and on testing, it was found to be heroin. The heroin was found to be weighing 300 gms. out of which two samples of 5 - 5 gms. each heroin were taken and was kept in polythene pouch and thereafter wrapped with yellow coloured paper and their mouths were pasted with gum. The pullinda were prepared and both the samples were given the nomenclature of Mark A and Mark B. The remaining 290 gms. of heroin was kept back into the same polythene pouch and was wrapped in yellow coloured paper and its mouth was pasted with the gum and pullinda was prepared as Mark C. FSL form was filled. SI Attar Singh applied his seal of 1-A PS NB Delhi on all the three pullindas, Marked as Mark A, B and C, and also on the three FSL forms. The seal after use was handed over to W/Ct. Kanta. All the three pullindas along with FSL form were seized by SI Attar Singh. Seizure memo of heroin was prepared. The complaint was FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 4 of 32 prepared by SI Attar Singh and was sent for registration of FIR through Ct. Virender Singh. All the three pullindas - A, B, C, FSL form and the carbon copy of seizure memo of heroin U/s 55 NDPS Act were sent to SHO Narcotics. All the three pullindas, FSL Form and carbon copy of seizure memo of heroin were counter sealed by SHO Narcotics Branch with his seal of 1 SHO NBR Delhi. The FIR got registered. The counter sealed case property was deposited in Malkhana by calling HC Gyan Prakash along with Register No. 19 in the room of SHO Narcotics. After registration of case vide DD No. 25, the further investigation was handed over to SI Bakhtawar Singh who left for the spot at about 01:45 PM by the Government Vehicle DL1V 3570 and conducted the investigation. IO/SI Bakhtawar Singh prepared the site plan at the instance of SI Attar Singh, recorded the statement of the witnesses, arrested the accused - Shabnam @ Shabana. The IO also got the accused personally searched by woman Ct. Kanta, prepared body inispection memo and personal search memo of accused. During investigation, accused disclosed that she is in profession of supply of heroin from last 5-6 years and today she was going to supply the heroin to one lady namely Parwati at Yamuna Pushta. She also disclosed that she also had to supply 200 ml. of smaik to some FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 5 of 32 person but due to non-availability of that she has kept 200 gms of smaik in the Almira at her house. At the instance of the accused, IO/SI Bakhtawar Singh took the accused to her house and prepared the pointing out memo at the instance of the accused. AT the instance of the accused, IO/SI Bakhtawar Singh recovered the soil colour powder from steel Almira lying at the house of the accused and on testing, it was found to be heroin. On weighting it was found to be 200 gms. out of which two samples of 5 - 5 gms. each heroin were taken and was kept in polythene pouch and thereafter wrapped with yellow coloured paper and their mouths were pasted with gum. The pullinda were prepared and both the samples were given the nomenclature of Mark A-1 and Mark B-1. The remaining 190 gms. of heroin was kept back into the same transparent polythene pouch. The mouth of that pouch was tied up with the rubber band and was wrapped in yellow coloured paper and pullinda was prepared as Mark C-1. FSL form was filled. SI Bakhtawar Singh applied his seal of 7-A PS NB Delhi on all the three pullindas, Marked as Mark A-1, B-1, C-1, and sealed FSL forms and same were seized vide seizure memo and seal after use was handed over to W/Ct. Kanta. The accused also disclosed that from the income of drug trafficking she has purchased the jewellery FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 6 of 32 and the jewelery was taken into possession by IO vide seizure memo and pullinda of same was prepared with white coloured cloth. The pullinda was sealed by the IO with his official seal of 7A PS NB Delhi. The IO also took in possession the documents of three plots of the accused. All the three pullindas of A1, B1 and C1 along with FSL form and jewelery was produced before SHO PS Narcotics. The jewelery was returned by the SHO to SI Bakhtawar Singh for depositing the same. Carbon copy of seizure memo of heroin, all the three pullindas Mark A1, B1, C1 and Form FSL was counter sealed by SHO PS Narcotics with his official seal of 1/SHO/NBR Delhi and was deposited in Malkhana by calling the MHC(M)/HC Gyan Prakash along with Register No. 19 in his office. The DD No. 31 was written regarding same. As per directions of SHO PS Narcotics, the sample A and A1 were sent to FSL Malviya Nagar through road certificate No. 115/21 dated 23.09.2003. After completion of investigation, the challan was filed in the court on 28.10.2003. Cognizance was taken by the court for the offence.
2. On finding prima facie enough material on record, charge U/s 21/29 NDPS Act was framed against the accused - Shabnam @ Shabana Begam vide order dated 19.07.2004 regarding possession of 260 gms. of heroin containing 0.5% of FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 7 of 32 diacetylmorphine U/s 21/61/85 NDPS Act to which accused pleaded not guilty and claimed trial instead.
3. Matter was then listed for PE. Prosecution has examined as many as eight witnesses to prove its version.
4. Prosecution got examined W/HC Kanta as PW1 who deposed that on 17.09.2003 she was posted as Head Constable at PS Narcotics Branch, Kamla Market. At about 10:50 AM, SI Attar Singh has organized the raiding party consisting of Ct. Naresh, Ct. Narender, Ct. Virender, Ct. Vijender and PW1 herself. At 10.55 AM, Secret Informer also met HC Kanta in the Government vehicle driven by Ct. Tavinder. PW1 further deposed that at about 11:55 AM SI Attar Singh along with secret informer reached the electric crematorium, Yamuna Pushta, Delhi via Delhi Gate Ring Road, Shanti Van, Vijay Ghat in the Government Vehicle DL1V 3570 driven by driver Tavinder Singh. The Government vehicle was parked in the electric cremation House. SI Attar Singh asked the 8 passersby and four rickshaw pullers to join the raiding party but they refused to join the same due to their own personal constraints. SI briefed the raiding party and disclosed the secret information that the lady named Shabnam resident of Ghaziabad deals in supply of heroin in Delhi and would supply heroin to someone at FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 8 of 32 Jamuna Pushta in jhuggi and will pass through electric cremation house between 11:15 AM to 12:00 Noon. The spot of offence was cordoned after briefing the staff. SI Attar Singh along with PW1, Ct. Virender and Secret Informer taken their position towards Vijay Ghat side and remaining staff taken their position at iron bridge side and started waiting for the accused - Shabnam. At about 11:30 AM, the lady was coming from side of iron bridge on foot and at the instance of secret informer accused Shabnam was apprehended with the help of PW1 at main gate of electric crematorium. PW1 correctly identified the accused in the court. PW1 further deposed that SI Attar Singh apprised the accused about himself and his staff and also with the secret information with them. SI Attar Singh disclosed the identity of raiding party to the accused and accused was given an offer that her search is to be taken and if so desires, her search can be taken before any Gazetted Officer or Magistrate but the lady declined that offer. SI Attar Singh issued a notice U/s 50 NDPS Act to the accused, same was also read over to the accused. PW1 proved the notice U/s 50 NDPS as Ex.PW1/A. Accused also not exercised her option to search any police person or W/Ct. Kanta. SI Attar Singh recorded the refusal of the accused in his own handwriting on the original FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 9 of 32 copy of Notice U/s 50 NDPS Act. PW1 proved the reply on the notice as Ex.PW1/B. PW1 further deposed that she took the accused in the vehicle and took her cursory search on which she recovered a light green coloured polythene from folding of salwar from upper side by the accused. PW1 produce that polythene before SI Attar Singh. On checking, SI Attar Singh found a white colour polythene pouch in the polythene bag recovered from the possession of the accused. On opening that pouch some soil coloured powder was found in the pouch and on testing, it was found to be heroin. The polythene along with heroin was found to be weighing 300 gms. out of which two samples of 5 - 5 gms. each heroin were taken. Both the samples and remaining heroin were sealed with the seal of 1 A PSNB Delhi, and were given Mark A, B and C. Form FSL was filled in and same seal was affixed theron. PW1 proved the seizure memo of parcels and FSL form as Ex.PW1/C. Seal after used was handed over to PW1. PW1 further deposed that at about 01:30 PM rukka was prepared and sent along with all the parcels, copy of seizure memo and form FSL through Ct. Virender. PW1 further deposed that at about 02:00 PM IO/SI Bakhtawar Singh along with Ct. Ravinder came at the spot where SI Attar Singh handed over entire papers to SI Bakhtawar FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 10 of 32 Singh and he prepared the site plan at the instance of SI Attar Singh. PW1 proved the personal search memo of accused as Ex.PW1/D, arrest memo as Ex.PW1/E and disclosure statement of accused as Ex.PW1/F. The accused was taken to her house No. 88, Dabar Talab, Bengali Peer Pargana where at the instance of the accused SI Bakhtawar Singh opened the Almira and recovered white coloured polythene from second rack of Almira. Mouth of polythene was tied up with rubber band and on checking a soil coloured substance lying therein was found to be heroin weighin 200 gms. out of which two samples of 5 gm. each were given and given the nomenclature of Mark A1 and B1 whereas, remaining heroin was sealed into same parcel and given the nomenclature as Mark C1. PW1 further deposed that on all the parcels the seal of 7 A PS NB Delhi was affixed, Form FSL was filled in and affixed with the same seal. PW1 proved the seizure memo of this 200 gm. of heroin as Ex.PW1/G. Form FSL was filled and same seal was affixed thereon and seal after used was handed over to PW1. Various jewelery articles of gold and silver along with Rs.5220/- were recovered vide recovery memo Ex.PW1/H on the disclosure of accused that all these are sale proceed of heroin. PW1 further proved the recovery memo as Ex.PW1/J regarding sale deed of FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 11 of 32 different plots. PW1 further deposed that on returning back to police station, she handed over seal of 1 A PS NB Delhi on 23.09.2003 and also handed over another seal to SI Bakhtawar Singh. After opening the parcel "C" with the seal of 1 A PS NB Delhi, PW1 proved the green coloured polythene as Ex.P1, white coloured polythene as Ex.P2 and light brown powder as Ex.P3 which were recovered from the accused near electric crematorium. After opening parcel C1 duly sealed with seal of 7 A PS NB Delhi PW1 proved the white polythene as Ex.P4 and brown coloured powder as Ex. P5. After opening two sealed parcel with Mark A and A1 sealed with seal of FSL Delhi, PW1 proved the remnants of sample as Ex.P6 taken out from Parcel A and remnants of samples as Ex.P7 taken out from Parcel A1. The parcels sealed with the seal of 7 A PS NB Delhi was opened and PW1 proved the recovery of gold neckless with dori as Ex.P8, another gold neckless with dori as Ex.P9, two gold tikas collectively as Ex.P10, two pair of jhumkas as Ex.P11, two nose nath as Ex.P12, two pair of artificial jewelery as Ex.P13, three pair of ear tops of artificial jewelery as Ex.P14, various ornaments of silver collectively as Ex.P15 and gold ring of male as Ex.P16. PW1 also proved the currency notes recovered from Almira of accused as Ex.P17, carbon copy of notice as FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 12 of 32 Ex.PW1/K. 4.1 During cross examination, PW1 admitted that public persons were coming and going through road and also going inside the electric cremation house but IO of the case not asked any passerby to join the raiding party. PW1 failed to tell the colour of salwar and kamiz of the accused. PW1 further admitted that after apprehension of accused and before taking her search no public persons either from cremation house or other places was not asked to join the proceedings against the accused. PW1 also admitted that no handing and taking over memo was prepared. PW1 further admitted that she do not know the number of storeys of the house of the accuse. PW1 further admitted that she do not know the colour of Almira lying at the house of the accused and number of racks therein. PW1 also failed to give the details of house of accused - Nafees or details of Nafees even from whom the accused - Shabnam used to take heroin. PW1 further admitted that no memo of handing over or taking over was prepared while taking seal from SI Bakhtawar Singh.
5. Prosecution further examined Ct. Virender as PW2 who deposed that on 17.09.2003 she was posted as Constable at PS Narcotics Branch, Kamla Market. At about 10:50 AM, SI Attar FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 13 of 32 Singh has organized the raiding party consisting of Ct. Naresh, Ct. Narender, W/HC Kanta, Ct. Vijender and PW2 himself. At about 10.50 AM, Secret Informer also met PW2 in the Government vehicle driven by Ct. Tavinder. PW2 further deposed that SI Attar Singh along with secret informer reached the electric crematorium, Yamuna Pushta, Delhi via Delhi Gate Ring Road, Shanti Van, Vijay Ghat in the Government Vehicle DL1V 3570 driven by driver Tavinder Singh. The Government vehicle was parked in the electric cremation House. SI Attar Singh asked the 8 passersby and four rickshaw pullers to join the raiding party but they refused to join the same due to their own personal constraints. SI briefed the raiding party and disclosed the secret information that the lady named Shabnam resident of Ghaziabad deals in supply of heroin in Delhi and would supply heroin to someone at Jamuna Pushta in jhuggi and will pass through electric cremation house between 11:15 AM to 12:00 Noon. The spot of offence was cordoned after briefing the staff. SI Attar Singh along with HC Kanta, PW2 and Secret Informer taken their position towards Vijay Ghat side and remaining staff taken their position at iron bridge side and started waiting for the accused - Shabnam. At about 11:30 AM, the lady was coming from side of iron bridge on foot and at the instance of FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 14 of 32 secret informer accused Shabnam was apprehended with the help of W/HC Kanta at main gate of electric crematorium. PW2 further deposed that SI Attar Singh apprised the accused about himself and his staff and also with the secret information with them. SI Attar Singh disclosed the identity of raiding party to the accused and gave her offer that before giving her search she can take the search of W/HC Kanta and any member of raiding party but the accused lady declined this offer. Accused was given an offer that her search is to be taken and if so desires, her search can be taken before any Gazetted Officer or Magistrate but the lady declined that offer. SI Attar Singh issued a notice U/s 50 NDPS Act to the accused, same was also read over to the accused. Accused also not exercised her option to search any police person or W/Ct. Kanta. SI Attar Singh recorded the refusal of the accused in his own handwriting on the original copy of Notice U/s 50 NDPS Act. PW2 further deposed that W/HC Kanta took the accused into Government vehicle and took her formal search and produced a light green coloured polythene to SI Attar Singh. On checking, SI Attar Singh found a white colour polythene pouch in the polythene bag recovered from the possession of the accused. On opening that pouch some soil coloured powder was found in the pouch and FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 15 of 32 on testing, it was found to be heroin. The polythene along with heroin was found to be weighing 300 gms. out of which two samples of 5 - 5 gms. each heroin were taken. Both the samples and remaining heroin were sealed with the seal of 1 A PSNB Delhi. Form FSL was filled in and same seal was affixed thereon. Seal after used was handed over to W/HC Kanta. All above said parcels and FSL forms were taken into possession vide recovery memo already Ex.PW1/C. PW2 further deposed that SI Attar Singh prepared the rukka and handed over the same along with all the three sealed parcels, Form FSL and seizure memo to PW2 and PW2 handed over the rukka to DO/HC Yudhvir and remaining articles before SHO. PW2 further deposed that SHO affixed his seal of 1 SHO NBR Delhi on all the three parcels and Form FSL and called MHC(M)/HC Gyan Prakash and gave the directions to deposit the entire case property in the Malkhana. PW2 further deposed that at about 03:00 PM he returned to the spot where SI Bakhtawar Singh recorded his statement, accused lady was arrested, her personal search was taken, accused was arrested and her discloser statement was recorded. The accused was taken to her house at Loni and IO deputed PW3 and Ct. Ravinder outside the house of that lady for watching the public of locality and IO has FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 16 of 32 taken the search of house of that lady. PW2 further deposed that at about 06:40 PM nobody was found at the house of Nafees, who supplied the heroin to the accused. PW2 also deposed that his supplementary statement was recorded in the PS. After opening the parcel "C" with the seal of court, PW2 proved the green coloured polythene as Ex.P1, white coloured polythene as Ex.P2 and heroin as Ex.P3 which were recovered from the accused near electric crematorium. After opening sealed parcel with Mark A1 sealed with seal of court, PW2 proved the remnants of sample as Ex.P6.
5.1 During cross examination, PW2 has stated that no officials of electric cremation house was called to join the investigation of the case and he also cannot say as to which place in the cremation house, the driver had parked the vehicle. PW2 further stated that IO of the case had requested the officials of the cremation house to join the raiding party but they refused. PW2 further said that SI Attar Singh has not asked those public persons to join the raiding party and again in contradiction to above preceding statements, the PW2 further stated that IO asked 4 rickshaw pullers and 8 passersby to join the investigation. PW2 also stated that public persons were coming and going through the FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 17 of 32 road.
6. Prosecution examined HC Gyan Prakash as PW3 who deposed that on 17.09.2003 he was posted as MHC (M) at Narcotics Branch, Kamla Market, Delhi. On that day, SHO/Inspr. S.P. Kaushik deposited six pullindas with Mark A, B, C, A1, B1 and C1 duly sealed with the seal of 1APS NB Delhi and also with the seal of 1 SHO NBR Delhi along with two FSL forms. PW3 further deposed that he has made entry to this fact at Serial No. 381 in Malkhana Register. Inspr. S.P. Kaushik also deposited carbon copy of seizure memo along with pullinda and FSL form. PW3 further deposed that on 23.09.2003 the sample parcel Mark A and A1 along with FSL Form were sent to FSL office, Malviya Nagar vide RC No. 115/21 through Ct. Virender. On 05.03.2004, the result of the sample was received which were handed over to IO and remnants were deposited in Malkhana by making the relevant entry at Serial No. 381. PW3 further deposed that on 17.09.2003 SI Baktawar Singh deposited the personal search articles of the accused in the Malkhana vide Serial No. 381 and proved the entry no. 381 as Ex.PW3/A and RC No. 115/21 as Ex.PW3/B.
7. Prosecution further got examined SI Baktawar Singh as PW4 who deposed that on 17.09.2003 he received the FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 18 of 32 investigation of the case and reached at cremation ground along with Ct. Tavender and met SI Attar Singh. PW4 proved the site plan as Ex.PW4/A. PW4 further deposed that he arrested the accused vide memo already Ex.PW1/E thereafter, the raiding party left for Dabur Talab, Loni at the house of the accused. PW4 stated that he do not know the house number of accused. PW4 further deposed that small quantity of powder was recovered from the house of accused which came out heroin weighing 200 gms out of which two samples of 5 gm each were taken and sealed with the seal of 7 APS NB Delhi and were given the name of A1 and B1. Remaining heroin was sealed into separate parcel named C1. FSL form was filled and all the three parcels were taken into police possession vide recovery memo Ex.PW/G. Seal after use was handed over to Lady HC Kanta. PW4 further deposed that he seized the jewellery articles of the accused and sealed the same with the seal of 7 APS NB Delhi and seal after use was handed over to Kanta. PW4 further deposed that sealed parcels were taken into police possession vide memo Ex.PW1/H and sale deed of residential plot of accused was seized vide memo Ex.PW1/J. PW4 proved the report U/s 57 of NDPS Act as Ex.PW4/C and FSL report as Ex.PW4/D. PW4 correctly identified the white polythene, FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 19 of 32 Ex.P4, containing brown colour powder, Ex.P5 as recovered from the house of the accused. PW4 also proved gold neckless with dori as Ex.P8, another gold neckless with dori as Ex.P9, two gold tikas collectively as Ex.P10, two pair of jhumkas as Ex.P11, two nose nath as Ex.P12, two pair of artificial jewelery as Ex.P13, three pair of ear tops of artificial jewelery as Ex.P14, various ornaments of silver collectively as Ex.P15, gold ring of male as Ex.P16 and currency notes recovered from Almira of accused as Ex.P17.
8. The prosecution got examined ACP S.P. Kaushik as PW5 who deposed that on 17.09.2003 he was posted as SHO, PS Narcotics Branch, Kamla Market. At about 10:40 AM, SI Attar Singh approached him along with Secret Informer with the information of supply of heroin and same was further conveyed to Sh. Mehar Singh, the then ACP Narcotics. DD No. 18 was registered and same was forwarded to ACP Narcotics. PW5 proved DD No. 18 as Ex.PW5/A. PW5 further deposed that at about 01:15 PM Ct. Virender produced the carbon copy of seizure memo, three cloth parcels Mark A, B and C and FSL Form all duly sealed with the seal of 1A PS NB Delhi on which he put the FIR No. 82/03 along with his official seal of 1 SHO NBR Delhi and deposited the same in Malkhana through HC Gyan Prakash. PW5 proved the DD FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 20 of 32 No.25 as Ex.PW5/B. PW5 further deposed that at about 07:30 PM IO/SI Baktawar produced the carbon copy of three parcels A1, B1 and C1 and one FSL form with the seal of 7A PS NB Delhi. PW5 further proved the DD No. 31 as Ex.PW5/C regarding deposit of three parcels and FSL form with MHC (M) Gyan Prakash. PW5 further deposed that on 18.09.2003 two reports U/s 57 of NDPS Act regarding seizure of heroin by SI Attar Singh and SI Baktawar Singh were produced before him which were forwarded to ACP Narcotics.
8.1 During cross examination, PW5 stated that that he did not record the secret information in writing given by SI Attar Singh on 17.09.2003.
9. Prosecution further got examined HC Yudhveer as PW6 who deposed that on 17.09.2003 he was working as Duty Officer from 08:00 AM to 08:00 AM next day and on that day at about 01:45 PM he recorded the DD No. 24 on the basis of tehrir and registered the FIR No. 82/03. PW6 proved the FIR No. 82/03 as Ex.PW6/A, endorsement on tehrir as Ex.PW6/B and copy of DD No. 24 as Ex.PW6/C.
10. The prosecution got examined SI Attar Singh as PW7 who deposed that on 17.09.2003 he received the secret FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 21 of 32 information regarding supply and sale of heroin. PW7 communicated the said information to Inspr. S.P. Kaushik, SHO Narcotics Branch by producing the Informer before him and same information was communicated by SHO S.P. Kaushik to ACP Narcotics Branch. PW7 constituted the raiding party constituting of HC Virender, WHC Kanta, Ct. Naresh, Ct. Ravinder, Ct. Virender, PW7 and Secret Informer. PW7 further deposed that the government vehicle bearing registration No. DL1B3570 was being driven by HC Devender. PW7 further deposed that at about 11:15 AM they reached at Yamuna Pushta Colony and requested 8 passersby and 4 rickshaw puller to join the raiding party but all of them refused to join the raiding party due to their personal reasons. The raiding party was briefed by PW7. The area near electric cremation was cordoned. At about 11:30 AM, the accused Shabnam was apprehended at the instance of the secret informer. The accused was apprised about secret information with the raiding party and notice U/s 50 NDPS Act was issued to the accused. The notice was read over and explained to the accused. The accused was also apprised that it is her legal right to get her personally searched in the presence of some gazetted officer and the accused can also take search of any member of raiding party FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 22 of 32 before giving her search to the raiding party but the accused refused to both the things and recorded her refusal in his own handwriting on the original notice U/s 50 NDPS Act. PW7 further deposed that accused was formally searched by WHC Kanta and after her search, WHC Kanta handed over one green coloured polythene and told that same was recovered beneath right side of shirt of Shabnam. On checking, the light brown coloured substance was found in that polythene which was found to be heroin on checking by field testing kit. The heroin along with polythene was found to be weighing 300 gms. out of which two samples of 2 gms. each were taken up and kept into small polythene packets which were further kept into yellow colour envelop and marked as A and B. The remaining heroin along with recovered polythene was kept into big yellow envelop and gave the name as Mark C. FSL form was filled. SI Attar Singh applied his seal of 1APS NB Delhi on all the three parcels and the FSL form. PW7 further deposed that the seal after use was handed over to WHC Kanta. PW7 proved the rukka as Ex.PW7/A and was handed over to Ct. Virender. PW7 further deposed that SI Baktawar Singh reached at the spot and received the papers from him. PW7 further deposed that IO/SI Baktawar Singh prepared the site plan at the his instance and also FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 23 of 32 recorded the statement of Ct. Virender. PW7 further deposed that the accused was taken to her house at Loni where none agreed to join the proceedings and left the spot. PW7 further deposed that a transparent polythene packet containing brown colour powder was recovered from the rack of iron Almira which was found to be heroin on testing and weighing 200 gms out of which two samples of 5 gms each were taken out and kept in two small polly packets which further sealed into two yellow envelop. The yellow envelops were marked as A1 and B1. The remaining heroin was packed in yellow envelop with name C1. All the three parcels and FSL Form were affixed with the seal of 7APS NB Delhi and seal after used was handed over to WHC Kanta. PW7 further deposed that Rs. 5250/- and 10 jewelery items were recovered from the almirah along with three suspected property papers. PW7 further stated that they left the spot at 08:00 PM and produced the accused along with seized property before SHO. PW7 further proved the report U/s 57 NDPS for 300 gms of heroin as Ex.PW7/B. PW7 proved the green colour polythene as Ex.P1 and white colour polythene as Ex.P2 and the substance as Ex.P3. PW7 also proved the powder from pllinda Mark B as Ex.P18. PW7 also proved the powder from pullinda Mark A as Ex.P6, powder from pullinda Mark A1 as Ex.P7 FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 24 of 32 (Colly), powder from Mark B1 as Ex.P19 (Colly), powder from Mark C1 as Ex.P5, jeweler articles already proved as Ex.P8 to Ex.P16 and polythene packet containing currency notes identified as Ex.P17.
11. Prosecution further got examined HC Om Prakash as PW8 who deposed that he was working as Reader to ACP, Narcotics Cell and proved DD No. 18 dated 17.09.2003 as Ex.PW8/A. PW8 also produced the original reports U/s 57 NDPS Act prepared by SI Attar Singh. During cross examination, PW8 stated that he was not present at PS Narcotics Branch at the time when the incident took place.
12. PE was thereafter closed.
13. All the incriminating evidence/material was then put to accused which she denied in her statement recorded on 19.11.2012 U/s 313 Cr.P.C submitting the present case to be false in which she wished to lead defence evidence.
14. Accused got examined Smt. Seema as DW1 who deposed that she do not remember the date but she was cooking the food at her house. Police officials forcefully entered their house where Shabnam was sleeping and police officials took the documents of plot, some jeweller articles, some cash and accused FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 25 of 32 Shabnam with them.
15. Final arguments advanced. I have perused the case record carefully.
16. It is observed by the court that PW5 deposed that the accused along with recovered contraband was produced in his office at about 07:50 PM whereas PW7 stated that the raiding partly left the house of accused at 08:00 pm from where they proceeded to the house of accused Nafees and waited for him but when they not found Nafees then they returned to PS Narcotics branch and produced the accused along with recovered contraband before PW5. It is the great discrepancy between the timings and the proceedings as deposed by PWs.
17. It is also observed that the present case depends upon the recovery of contrabands from the possession of accused but the recovery from possession of accused is highly dubious as PW1 has failed to depose that what was the colour of wearing of accused despite the fact that she conducted the personal search of the accused and recovered the diacetylmorphine from the possession of the accused.
18. It is also observed that PW1 was the star member of the raiding party who also conducted the personal search of the FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 26 of 32 accused and was there with the raiding party for entire proceedings but she failed to give any description regarding type, length and width and storeys of the house of the accused from where they claim to recover the 300 gms of heroin. PW1 further failed to depose that what was colour of almirah from where heroin was recovered despite the fact that she precisely gave the number of rack from where heroin was recovered.
19. It is further observed that in the present case the search, seizure and proceedings adopted are the essence to prove the culpability of the accused but the police party admittedly not prepared any handing over or taking over memo of the seal used for sealing the parcels by the IO.
20. It is also observed that during examination of PW2 parcel was opened and remnants of sample Ex.P6 was taken out. It was observed by the court on that day that there is difference in the colour of remnant of sample Ex.P6 and recovered heroin. All the above, observations creates serious doubts regarding recovery of heroin from the possession of the accused. The samples sent to Forensic Lab and sample produced in the court at the time of evidence were found to be different in colour which deeply shatters the story of prosecution. The cardinal rule in the criminal law is that FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 27 of 32 prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused. In Batcu Venkateshwarlu v. Public Prosecutor High Court of A.P. , (SC) 2009(1) R.C.R.(Criminal) 290 : 2009(1) R.A.J. 251 : 2008(15) Scale 212, the Hon'ble Supreme Court observed as under :-
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case.......... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
21. It is also observed that the star witness PW1 and PW2 has deposed that public persons were present at cremation house FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 28 of 32 and the officials at cremation house were also present but IO not asked any public person to join the investigation. Such non-joinder of available public persons creates serious doubts to the proceedings conducted by the raiding party. In the present case, no public witness has been examined by the prosecution. Accordingly, failure on the part of prosecution to make sincere efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the story of prosecution in view of following case laws.
In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop- keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 29 of 32 Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
22. It is observed that on the day of raid, the police has raided the house accused - Shabana @ Shabnam and conducted search thereof but they have not joined any public person as a FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 30 of 32 witness to the proceedings conducted by them. The IO has also not issued any notice to any public persons adjacent to house of accused. It is also observed that the ransacking of house of accused was the second phase of raid conducted by the raiding party and there was no hurry at all to proceed further. The police was having ample time to call the local police officials of concerned police station to join the proceedings of house search but the raiding party members not made even single effort to call police persons from concerned police station and has grossly violated the provisions of Section 100/102/165 Cr. P.C. The IO has not complied with any of the directions as laid from Section 100 (4) to 100 (7) Cr. P.C. The IO has grossly violated the provisions of Section 165 Cr. P.C. The IO was required to join public witness and make inventory of all the recovered goods/articles from the house of the accused along with signature of public witness but IO has neither joined any public witness nor he made any effort to join the officials of local police station to join search and seizure of the house of the accused and IO has very whimsically ransacked the house of accused. The IO has also not handed over the search and recovery memo regarding house of accused to the accused. The prosecution has grossly failed to relate that how the jewelery or FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 31 of 32 proprietory of immovable property has been obtained by the accused from sale proceeds of diacetylmorphine so as to make the jewelry items etc. as case property of present case.
23. In view of above, this court is of considered opinion that the police has failed to join any public person as witness to the investigation without any reasons. The depositions made by prosecution witnesses are highly dubious and benefit of doubt is extended to the accused. The raiding party has grossly violated the provisions of Section 100/102/165 Cr. P.C. despite having ample time with them to meet with aforementioned provisions and also there was not any kind of haste for search and recovery, hence, the accused - Shabnam @ Shabana is acquitted from the charges U/s 21/61/85 NDPS Act levelled against her.
Announced in the open Court on this 21st Day of December, 2015 (AJAY KUMAR MALIK) MM(C)-04/Tis Hazari Courts 21.12.2015.
FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 32 of 32 FIR No. 82/03 PS: Narcotics Branch 21.12.2015 Present : Ld. APP for the State.
Accused - Shabnam @ Shabana in person along with Ld. Counsel.
Final arguments advanced.
Vide separate judgment of even date, accused -
Shabnam @ Shabana is acquitted for the offence U/s 20/61/85 NDPS Act.
Bail Bond U/s 437 A Cr. P.C. filed by the accused. Same is perused and accepted and taken on record.
Previous surety of the accused is discharged from the present case. Let the original documents of previous surety be returned to him against countersigned photocopy of the same.
The case property i.e. the jewelery articles and the currency notes seized from the house of accused be released to her.
File be consigned to Record Room after due completion. Copy of order be given dasti to the accused.
(AJAY KUMAR MALIK) MM (Central)-04/THC 21.12.2015 FIR NO.82/03 State Vs. Shabnam @ Shabana Page No. 33 of 32