Delhi District Court
Accused Kashiraj Pariyar S/O Nar ... vs State ( Air 2003 Sc 1311) Where Hon'Ble ... on 14 December, 2015
1
IN THE COURT OF MS SHAIL JAIN: SPECIAL JUDGE:
NDPS: 02: CENTRAL DISTRICT: TIS HAZARI :
DELHI
SC NO. 61/11
STATE
versus
Kashiraj Pariyar
s/o Sh Nar Bahadur
R/O Village Chyondanda, Ward No. 9
Distt Kotand, Nepal.
FIR No. : 51/11
Offence U/S : 20 NDPS Act
Police Station : Gulabi Bagh
DATE OF INSTITUTION: 09/09/2011
DATE OF JUDGMENT:14/12/2015
JUDGMENT
1. Accused Kashiraj Pariyar s/o Nar Bahadur along with Roshan Sodash (since juvenile) , as per prosecution case, was found in conscious possession of 1 KG 360 grams of Ganja on 11/07/2011 at 7.30 p.m, behind Leelawati School near Railway Line, Gulabi Bagh by the police party during area patrolling. It is also the case of the prosecution that on 12/07/2011 accused got effected recovery of 4 card board boxes containing 72 Rottinama pieces of charas weighing 1 2 20 kg and 562 grams from DTDC, courier office situated at Vijay Nagar where he has booked the said consignment for sending to Hong Kong . Also on 13/07/2011, accused got effected recovery of two card board boxes containing 36 rottinuma pieces of charas weighing 8 kg and 626 grams from DTDC courier office situated at Naryana Industrial Area which he had booked at DTDC office at Khidki Extension for sending to Hong Kong. The accused was arrested and after completion of investigation, the charge sheet was filed.
2. Accused was charged for the offense punishable u/s 20/61/85 NDPS Act, to which accused pleaded not guilty and claimed trial.
3. Prosecution had examined 14 witnesses in all to prove the case against the accused. The substance of the prosecution evidence is as follows:
4. PW1 HC Rajender Kumar was duty officer on 11/07/2011 at PS Gulabi Bagh. He has recorded the FIR of the present case and proved the same as Ex.PW1/A. 2 3
5. PW2 Ct Rajesh Kumar is the witness of recovery of contraband from the possession of the accused. He has deposed in detail about the investigation conducted by the IO.
6. PW3 Anil Rawat has deposed that in the month of JuneJuly 2011 he was working with DTDC courier . On 05/07/2011 two persons came to their office at Khidki Extension and booked two parcels of 23 kg each for Hong Kong. On 13/07/2011 the police along with accused Kashiraj came to his office and inquired from him. IO conducted the search of the building but nothing incriminating was recovered. He informed the police that said two parcels were sent to Narayana office. They went to that office, where accused Kashiraj identified two parcels in the office and disclosed that he had booked these two parcels in the DTDC office at Khidki Extension on 5.07.2011. IO opened the parcels and from those parcels rotinuma charas , wrapped in silver foil were recovered. On weighing, it came to be 4 kg and 404 grams & other parcel 3 4 was weighing 4 kg 222 grams (total 8 kg 626 grams). After opening the parcels, IO had taken out one rotinuma charas as sample from each of the parcels, and the same were sealed. Entire proceedings for sampling and sealing the contraband was done at the DTDC office. Witness has described in detail the entire procedure. IO filled the FSL form and affixed his seal of NSC on FSL form, pulanda mark G, G1, G2, H, H1 and H2. The seal after use was handed over to Ct Rajesh Kumar and seized the pulanda and FSL form vide memo Ex.PW2/G.
7. PW3 Anil Rawat has proved the receipt of booking of consignment as Ex.PW3/A and Ex.PW3/B.
8. PW4 HC B. R. Kamley has deposed that on 12.07.2011, he was posted at ACP Office, Sarai Rohilla. On that day, at about 7:30 PM an information u/s 57 of NDPS Act vide No. 1743/SHO/Gulabi Bagh dated 12.07.2011 was received from Inspector Narender Singh, ATO, Gulabi Bagh through Ct. Srikant. He put up the information u/s 57 NDPS Act before ACP. After going through the contents of the same, 4 5 ACP made endorsement on Ex. PW4/A. On 13.07.2011, at 2:00 PM Ct. Srikant gave information u/s 57 NDPS Act vide No.1747/SHO/Gulabi Bagh dated 13.07.2011 duly signed by Inspector ATO, Gulabi Bagh. He put up the information u/s 57 NDPS Act before ACP. The ACP concerned had gone through the contents of the same and made endorsement on Ex. PW4/B. The copy of the said register where those entries were made is Ex. PW4/C.
9. PW5 HC Prakash has deposed that on 11.07.2011, he was posted at PS Gulabi Bagh as MHC(M). On that day, Inspector D.S. Dagar deposited four pulandas duly sealed with the seal of AK and DSD with FSL Form. Witness has further stated that the personal search articles of accused were also deposited in Malkhana on same day by IO. He made entry in the Register No.19 at Serial No.845, the copy of entry is Ex. PW5/A1 & A2. On 12.07.2011, Inspector D.S. Dagar and Inspector Narender Singh Chauhan, ATO, deposited 12 pulandas duly sealed with the seal of NSC and DSD with FSL Form. He made entry in the Register No.19 5 6 at Serial No.847, the copy of entry are Ex. PW5/B1 to Ex. PW5/B5. On 13.07.2011, Inspector D.S. Dagar and Inspector Narender Singh Chauhan, ATO, deposited 6 pulandas duly sealed with the seal of NSC and DSD with FSL Form. He made entry in the Register No.19 at Serial No.849, the photocopies of entries are Ex. PW5/C1 to Ex. PW5/C4. On 20.07.2011, he handed over 8 pulandas duly sealed with FSL Form to Ct. Narender Kumar for depositing the same at FSL Rohini vide RC No.38/21. He deposited the same at FSL and handed over the acknowledgment of the same to him. The copy of the Road Certificate is Ex. PW5/D1 and acknowledgment thereof is Ex. PW5/D2. On 19.09.2011, Ct. Srikant brought the FSL result with 8 sealed pulandas and handed over the same to him. Pullandas were deposited in malkhana & result of FSL was handed over to to Inspector Narender Chauhan.
10. PW6 SI Akshay has deposed that on 11.07.2011, he was on patrolling duty with HC Diwan, Ct. Vishram and Ct. Rajesh. At about 07.30 p.m, they reached near Leelawati 6 7 School at the corner of Railway Line in the area of PS Gulabi Bagh. They noticed two persons coming from railway line side and on seeing the police, they both turned back and started taking fast steps. He instructed them to stop and on this both those persons started running away. They chased them. One was over powered by him with the help of Ct. Rajesh Kumar and the said person disclosed his name as Kashiraj Pariyar. The other was over powered by HC Diwan and Ct. Vishram and he disclosed his name as Roshan Sardos (Juvenile facing trial before JJ Board).
11. Thereafter, he conducted the cursory search of accused Kashiraj and five Rottinuma pieces of charas wrapped in plastic punny were recovered, which he had hidden inside his pant, which was covered with his shirt/dub. HC Diwan conducted the search of Roshan Sardos and five Rottinuma pieces of charas wrapped in plastic punny were also recovered, which he had hidden inside his shirt and pant. He informed the SHO through telephone, who instructed him to take action as per law. Thereafter he 7 8 requested 45 persons to join the raiding party but none obliged and went away after giving reasonable excuse. Then notices u/s 50 NDPS Act were prepared and given to accused Kashiraj and Roshan Sardos (JICL) separately. He made them understand about their legal right to be searched before any Gazetted Officer or any Magistrate as there are chances that more charas could be recovered from their possession. Accused Kashiraj refused to exercise his rights and he himself wrote his refusal. The Juvenile Roshan also refused to exercise his rights. The reply on the notice u/s 50 NDPS Act of accused Juvenile Roshan was given by coaccused Kashiraj. The notice u/s 50 NDPS Act given to accused Kashiraj is Ex. PW6/A and accused Kashiraj signed at point Z. The notice u/s 50 NDPS Act was also given to accused Roshan is Ex. PW6/B. Police offered their search to be conducted by the accused before their search but both the accused refused to conduct the search of police party. On inquiry, both the accused persons disclosed that they used to bring charas from Nepal and 8 9 further supply it to other countries through courier and they had left 4 boxes (total 20 kg charas) at DTDC courier company, Vijay Nagar for sending it to Hong Kong and they can get it recovered. He weighed the charas recovered from the possession of accused Kashiraj and it came out to be 1 kg and 360 gms including the polythene. 2 rottinuma pieces of charas were separated as sample and on weighing the same it was found to be 540 gms with polythene. The sample charas was turned into a pulanda and marked as A1 and remaining charas was also turned into a pulanda and marked as A. The charas recovered from Roshan Sodas was also weighed and found to be 1 kg and 365 gms. The sample was also separated and two separate pulandas marked B and B1 were prepared. He filled up FSL form and sealed the pulandas mark A, A1, B and B1 with the seal of AK and also affixed the same seal on FSL form. Seal after use was handed over to Ct. Rajesh. He seized the four sealed pulandas and FSL form vide seizure memo Ex.PW2/A. SHO with staff also reached at spot. SHO was 9 10 briefed by him about the case and the recovery thereof from the accused persons. He handed over the seized pulandas, FSL form and copy of seizure memo to SHO who inquired from both the accused and then affixed his seal of DSD on the four pulandas and FSL form. SHO left the spot with the case property, FSL form and copy of seizure memo and instructed him to take further action as per law.
12. Thereafter, he prepared rukka Ex. PW6/C and handed over to Ct. Vishram at 9:20 PM, who went to PS for registration of case. Ct. Vishram and Inspector Narender Singh reached at spot. He handed over both the accused, prepared papers to Inspector Narender Singh who prepared site plan at his instance Ex. PW6/D.
13. PW7 Inspector Dharambir Singh Dagar has deposed that on 11.07.2011, he was posted as SHO, PS Gulabi Bagh. On that day when he was on patrolling duty then at about 08.40 p.m, he received a wireless message from SI Akshay Kumar stating that he had arrested two persons with Charas behind Leelawati Public School near Railway Line, Gulabi 10 11 Bagh. Accordingly he reached at the spot where SI Akshay, HC Diwan, Ct Rajesh, Ct Vishram alongwith two accused namely Kashiraj, and accused Roshan (since juvenile) met him. SI Akshay produced two sealed pulandas and samples containing Charas having seals of AK, recovered from the accused persons. He verified the facts from both the accused persons. He also affixed his seal of DSD on pulandas and FSL form. He took the pulandas into his possession and came back to PS alongwith FSL form and copy of seizure memo. On reaching at PS he obtained the FIR no from the duty officer. Accordingly he mentioned the particulars of FIR no on pulandas and FSL form and copy of seizure memo. He signed the pulandas. He himself handed over the FSL form, copy of seizure memo and the case property to MHCM for depositing the same in Malkhana. On the same day, one report u/s 57 NDPS Act was placed before him and after going through the same forwarded the same to ACP. Witness has further deposed that on 12.07.2011, IO produced both the accused before 11 12 him and also four sealed pulandas with the seal of NSC and FSL form and copy of seizure memo. He verified the above facts and affixed his seal of DSD on the pulandas and FSL form. Thereafter deposited the pulandas, FSL form and copy of seizure memo in the Malkhana.
14. PW8 Ashish Gupta has deposed that In the year 2011, he was working as Branch Manager at DTDC branch office Vijay Nagar. On 12.07.2011, the officials of Delhi Police alongwith two persons namely Kashiraj and Roshan Sardosh came in their office. Their employee Vinay identified Kashiraj and Roshan Sardosh and stated that they had booked parcels on 09.07.2011. The police officials informed him about the arrest of both the accused persons. Then police officials informed him that they have to search his premises and informed about legal rights i.e search to be conducted in the presence of Gazetted Officer or Magistrate. The IO had given him notice Ex.PW8/A and he replied the notice, which is Ex.PW8/B. He had given two dockets ie N93404889 and N93404890 alongwith Invoices 12 13 and copy of identity proof. IO seized the same vide seizure memo Ex.PW8/C. Thereafter, four parcels, which were booked vide abovementioned dockets were produced before the police officials. The police officials then opened the abovementioned parcels one by one. On opening each parcels was found containing six plastic packets, which were having 3 round disc shapes ie total 18 discs in each parcel. On opening these discs were found rotinuma material called Charas. IO took sample from each parcel ie one roti from each parcel and separately sealed the samples and remaining material from each parcel duly sealed them and taken same into possession vide memo Ex.PW8/D. IO also prepared FSL form. Witness has stated the entire procedure in detail which is not being reproduced for sake of brevity.
15. PW9 HC Diwan Singh & PW11 Ct Vishram are also witness of recovery of contraband from the possession of accused persons.
16. PW10 Ct Narender Kumar has deposed that on 13 14 20/07/2011, on the directions of IO, he took 8 sealed pulandas along with FSL form of present case from MHCM vide RC no 38/21 (Ex.PW5/D1) and deposited the same in FSL Rohini vide receipt (Ex.PW5/D2) and handed over the receipt to MHCM.
17. PW12 Vinay Kumar has deposed that he is working as Data entry operator at DTDC Vijay Nagar Branch. On 09/07/2011 four parcels were booked at their branch for Hong Kong by accused Kashiraj Pariyar. As there was no proper ID proof, hence the consignment was not forwarded and they informed the accused to give proper ID. On 12/07/2011 police officials came to their office. On inquiry he informed the police that accused Kashiraj had booked four parcels. One box was opened. The parcel has 18 pieces. The hangings had round plywood disc on the top. On opening the wooden disc, round shape black coloured substance was found kept between two pieces of round shape wooden ply. He came to know that three parcels also contained similar substance as found from the first parcel. 14 15 The police sealed the recovered substance separately. The remaining articles found from the parcels were also seized and sealed by the police.
18. PW13 Inspector Sanjay Kumar has deposed that on 12.07.2011, he was performing the duty of Juvenile Welfare Officer. In the present case, one person namely Roshan Sodas was Juvenile. At the direction of IO , Inspector Narender he being JWO, recorded version of Roshan Sodas and also prepared social background report of Roshan Sodas. Thereafter, he along with IO went to JJB , Kingsway Camp where Roshan Sodas was produced and from there he was sent to children home.
19. PW14 Inspector Narender Singh has deposed that on 11.07.2011, investigation of this case was assigned to him. He along with Ct. Vishram went at the spot where SI Akshay Kumar along with other staff met him . SI Akshay Kumar produced two accused persons namely Kashi Raj Pariyar and juvenile Roshan Sodan . SI Akshay Kumar also handed over the documents to him. He interrogated accused Kashi 15 16 Raj Pariyar and recorded his disclosure statement (Ex. PW11/A). Juvenile Roshan Sodan was inquired upon by Juvenile officer SI Sanjay Kumar and he recorded his version. He has further deposed that he prepared arrest and body inspection memo of accused Kashi Raj Pariyar vide Ex.PW2/B and Ex.PW14/A respectively. He conducted personal search of accused Kashi Raj vide personal search memo Ex.PW2/C. He also conducted personal search of juvenile Roshan vide personal search memo Ex.PW14/B. He prepared site plan (Ex.PW6/D ) at the instance of SI Akshay. He interrogated accused Kashi Raj and recorded his disclosure statement which is Ex.PW11/A. On 12.07.2011 he along with accused Kashi Raj and juvenile Roshan and Ct. Vishram went to DTDC office Vijay Nagar, Delhi where Manager Ashish and Booking Clerk met them. He had given notice U/s 50 NDPS Act to Ashish to conduct the search of four parcels vide Ex.PW8/A. He informed Ashish that some Gazetted Officer or Magistrate may be called and the search of the 16 17 parcel may be conducted in their presence. IO also informed Ashish regarding legal right to the effect that he can take search of police officials before search of parcels and he replied the notice, which is Ex.PW8/B. Ashish produced 4 parcels before him. Address of Hongkong was written on the parcels. He opened all the four parcels. On opening first parcel it was found containing six polythenes and each polythene was found containing three cloth round packet. He checked the each packet and this packet was found containing one wooden ply. He checked the wooden ply and total 18 Rotinuma Charas was recovered. He weighed the polythenes containing Rotinuma Charas and it came to be 5.148 Kg. He had taken out one roti as sample sample from Rotinuma Charas and weighed the same and it came to be around .292 grams. He kept the sample in a separate polythene and then it was kept in a cloth parcel and it was given Mark C1. The remaining 17 Rotinuma Charas were kept in separate polythene and then it was kept in a cloth parcel and it was given Mark C. Empty 17 18 polythenes, ply, pooja articles, clothes were kept in a separate parcel which was given Mark C2. Similarly on opening the remaining parcels it was found containing six polythenes and each polythene was found containing three cloth round packet. He checked each packet and this packet was found containing one wooden ply. He checked the wooden ply and total 18 Rotinuma Charas was recovered. He weighed the polythenes containing Rotinuma Charas of each parcel and it came to be 5.130 Kg, 5.120 kg and 5.164 kg . He had taken out one rotinuma charas from each parcel as sample from Rotinuma Charas and weighed the same and kept the sample in a separate polythene and then it was kept in a cloth parcel and it was given Mark D1, E1 & F1. The remaining 17 Rotinuma Charas were kept in separate polythene and then it was kept in a cloth parcel and it was given Mark D, E & F. Empty polythenes, ply, pooja articles, clothes were kept in a separate parcel which was given Mark D2, E2 and F2. He affixed his seal of NSC on all the parcels. He also 18 19 prepared form FSL and also affixed the seal of NSC on the FSL form. The seal after use was given to Ct. Vishram. The case property was taken into possession vide memo Ex.PW8/D. When they reached at the office of DTDC Booking Clerk Vinay had identified the accused persons as the same who booked the parcels. Thereafter, they came back to the P.S. Gulabi Bagh and produced the case property before the SHO Inspector Dharmbir Dagar, who affixed his seal of DSD on all the sealed parcels and also on the FSL form. Thereafter, SHO called MHCM in his office along with Register No. 19 and produced the case property before him, who made the entry in Register No. 19.
20. Witness has further deposed that on 13.07.2011 he along with Ct. Rajesh and accused Kashi Raj went to Khirki Extension, DTDC office from where one person Anil Rawat joined the investigation and thereafter they went to DTDC office, PhaseI, Naraina Industrial Area, New Delhi. Accused pointed the place and Anil Rawat stated that two parcels were given to him for sending the same to 19 20 Hongkong. He had given notice U/s 50 NDPS Act to Anil Rawat to conduct the search of two parcels vide Ex.PW2/E. He informed Anil Rawat that some Gazetted Officer or Magistrate may be called and the search of the parcel may be conducted in their presence. He also informed Anil Rawat regarding legal right to the effect that he can take search of police officials before search of parcels. Anil Rawat denied and replied the notice vide Ex.PW3/C. Anil Rawat produced 2 parcels before him. Address of Hongkong was written on the parcels. He opened both the parcels. On opening first parcel, it was found containing six polythenes and each polythene was found containing three cloth round packet. He checked the each packet and this packet was found containing one wooden ply. He checked the wooden ply and total 18 Rotinuma Charas was recovered. He weighed the polythenes containing Rotinuma Charas and it came to be 4.404 Kg. He had taken out sample from Rotinuma Charas and weighed the same and it came to be around 246 grams. He kept the 20 21 sample in a separate polythene and then it was kept in a cloth parcel and it was given Mark G1. The remaining 17 Rotinuma Charas were kept in separate polythene and then kept in a cloth parcel and it was given Mark G. Empty polythenes, ply, pooja articles, clothes were kept in a separate parcel which was given Mark G2. On opening second parcel, it was found containing six polythenes and each polythene was found containing three cloth round packet. He checked the each packet and this packet was found containing one wooden ply. He checked the wooden ply and total 18 Rotinuma Charas was recovered. He weighed the polythenes containing Rotinuma Charas and it came to be 4.222 Kg. He had taken out sample from Rotinuma Charas and weighed the same and it came to be around .254 grams. He kept the sample in a separate polythene and then kept in a cloth parcel and it was given Mark H1. The remaining 17 Rotinuma Charas were kept in separate polythene and then kept in a cloth parcel and it was given Mark H. Empty polythenes, ply, pooja articles, 21 22 clothes were kept in a separate parcel which was given Mark H2. He also prepared form FSL and affixed his seal of NSC on all the parcels and also on the FSL form. The seal after use was given to Ct. Rajesh. He prepared seizure memo, pointing out memo and identification memo vide Ex.PW2/G. He produced the case property before the SHO who affixed his seal on the sealed parcels and also on the FSL form. SHO called the MHCM in his office along with register No. 19 and deposited the case property. Accused was also produced before the SHO. He had interrogated the accused Kashi Raj on 12.07.2011 and 13.07.2011 and recorded his supplementary disclosure statements, which are Ex.PW11/B and Ex.PW2/D. On 12.07.2011 and 13.07.2011 he prepared report U/s 57 NDPS Act, vide Ex.PW4/A and Ex.PW4/B and produced the same before the SHO. The case property was sent to FSL and later on the result was collected. FSL result is Ex.PX.
21. Thereafter prosecution evidence was closed.
22. Statement of accused was recorded u/s 313 CrPC 22 23 wherein the entire incriminating evidence has been put forth and explained to the accused to which he pleaded innocence and false implication. He stated that he has been falsely implicated in this case . Nothing was recovered from his possession . He was picked up from Majnu Ka Tila where police was looking for Akbar Ali, Jeevan Sakhya Madan Jain and Chandra Lambu. The police picked up many persons from the guest house at Majnu Ka Tila. He was apprehended on 10/07/2011. In the police station, he was shown to Ashish Gupta, Anil Rawat and Vinay for them to identify him in the court. Accused had stated that he wanted to lead evidence in defence .
23. DW1 HC Jai Pal Singh has deposed that as per record, application dt 15/5/13 and reply under RTI Act seeking information pertaining to the procedure and posting of certain officials of PS Gulabi Bagh was moved by applicant Sh Dalip Paswan. The copy of the application along with the questions is Ex.DW1/A. The application was replied vide letter dt 14/06/13 & the reply sent by SHO PS Gulabi 23 24 Bagh in this respect is Ex.DW1/B.
24. I have heard arguments from Sh Subhash Chauhan, Ld APP for the State and Sh Michael Peter, Ld defence counsel for accused.
25. On behalf of the accused, Ld defence counsel has taken six grounds for disproving the case of the prosecution. First ground is in relations to the samples sent to FSL. Ld defence counsel has submitted that it is not clear from the prosecution case as to how many times samples were sent to FSL and whether the FSL form was sent to FSL Rohini or not and third objection under this ground was whether the FSL result as filed is admissible or not. While arguing the case under this ground no. 1, Ld defence counsel has also taken the objection to the differences in weight of sample as stated by the IO while seizing the case property and differences in weight as was found mentioned in the FSL result.
ii) The other ground has been taken by Ld defence counsel that prosecution has not been able to prove 24 25 whether the members of the raiding team who allegedly recovered charas from the possession of accused persons were actually partrolling area on the date of incident or not. In this regard, Ld defence counsel has relied upon the report of RTI submitted by SHO PS Gulabi Bagh, same will be discussed by me in detail while I will discuss ground no.
2.
iii) The third ground taken by defence counsel against the case of the prosecution is that prosecution has not been able to prove whether the FIR was registered at the time of serving notice u/s 50 NDPS Act to the accused persons or not as FIR no. was found mentioned on notice u/s 50 NDPS Act, thus it proves that the case of the prosecution is false.
iv) The fourth ground taken by Ld defence counsel is that no public person was joined in investigation. This, itself shows that no efforts were exercised by the IO in joining the public witness considering the investigation of the case.
v) The fifth ground has been taken by Ld counsel for accused on the point that how many parcels were booked 25 26 from different DTDC office and who actually booked the parcels. The contention of Ld defence counsel under this ground has been that all the documents are false and fabricated and have been planted upon the accused in connivance with DTDC.
v) the last ground of argument taken by the Ld counsel for accused is that the disclosure statement of the accused was recorded as per the statement of PW14 before arrest of accused & IO had not investigated about Dorje Lamba and Akbar Ali and therefore, it shows that accused has been falsely implicated in the present case. With these grounds it is prayed by Ld defence counsel that accused be acquitted. In support of his arguments, Ld defence counsel has relied upon the following judgments:
1. 2011(3) JCC (Narcotics) 195
2. 2012 (3) JCC (Narcotics) 138
3. 1994 III AD (DELHI) 626
4. 2000 (2) JCC 424 (Delhi)
5. 2000 (2) JCC 426 (Delhi) 26 27
6. 2006 (3) JCC (Narcotics) 150.
26. On the other hand Ld Additional P.P has argued that samples were duly taken from the material recovered from the accused along with JCIL Roshan and samples were sent to FSL firstly on 19/07/11 but samples were sent by way of different road certificates, which were not accepted by FSL and hence samples were sent again by way of common RC on 20/7/11. It is proved by the testimony of PW10 Narender and PW5. Hence there is no discrepancy in the prosecution case. As regards the grounds taken by Ld defence counsel that there is no evidence that all the police officials who have apprehended accused were actually on patrolling duty in that area has not been proved. It is specifically argued by Ld Additional P.P that RTI report cannot be relied upon solely as author of the RTI report has not been examined, secondly the report itself shows that other police officials were on duty on that day. Ld Additional P.P had also submitted that in order to prove the report, SHO PS Gulabi Bagh should have been called as 27 28 defence witness. As regards the examination of public witness, it has been argued by ld Additional P.P that recovery in this case is chance recovery and no raid was conducted in order to apprehend the accused persons.
Even otherwise chance recovery has been effected in the night time and at the place which was not a common thorough fare, therefore possibility of there being any public person was very remote and even otherwise prosecution witnesses have stated that IO had asked passersby to join the investigation but they refused. Ld Additional P.P has relied upon the judgment of Karamjit Singh vs State ( AIR 2003 SC 1311) where Hon'ble Supreme Court has held that:
"The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without consideration of independent witness their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other purpose and it is not a proper approach to distrust and suspect them 28 29 without good grounds.
27. As regards the arguments of Ld defence counsel as to who booked parcels, Ld Additional P.P had argued that from the testimonies of DTDC employees, it is clear that accused Kashi Raj had himself gone to the office of DTDC at Vijay Nagar and Khidki Extension and had got parcel booked. It was also submitted by Ld Addl. P.P that parcels could not be sent to Hongkong admittedly as ID documents were not legible or not complete.
28. As regards the last arguments of Ld defence counsel, regarding the disclosure of the accused being recorded before arrest and not sending the handwriting of accused to FSL, Rohini, Ld Additional P.P had specifically argued that PW14 while making his statement has only stated in evidence that disclosure statement was recorded before stating about the arrest. It is only the manner of speaking the fact, which does not prove the procedure as no clarification was sought in this regard from the witnesses by Ld defence counsel in cross examination. As regards the 29 30 contention of not sending handwriting of accused in FSL, Ld Additional P.P had submitted that since there was no admitted handwriting of accused Kashiraj or Dorje Lambe available with the police, therefore, there was no point in sending the handwriting for comparison to FSL. With these submissions, it is prayed by Ld Additional P.P that accused be convicted. In support of his arguments, Ld Additional P.P has relied upon the following judgments:
1. Kulwant Singh vs Narcotics Control Bureau passed by Hon'ble Mr Justice S N Dhingra.
2. Cr A No. 446 of 2008 Kurban Ansari vs The State of West Bengal.
29. I have considered the arguments advanced by Ld counsel for the parties. I have also gone through the written arguments and the judgments relied upon by Ld counsel for the parties. No written arguments was submitted on behalf of the State.
30. Since Ld counsel for accused has argued the matter by taking various grounds it is appropriate to discuss the 30 31 evidence and arguments led by the parties, on the basis of the grounds taken by accused persons.
FIRST GROUND
31. On this point, Ld defence counsel has argued that it is not clear as to how many times the sample was sent to FSL, whether the FSL form was sent along with the sample and thirdly whether the FSL result is admissible or not. It was also argued during the course of arguments on this ground that there was difference in the weight of sample as recorded by the police officials and as found by the FSL, which shows that there is manipulation in the case property. It was also submitted by Ld defence counsel that samples from each rotti was not taken, therefore, it is not the proper sample.
32. As submitted by Ld Additional P.P as mentioned above,it is clear from the statement u/s 161 Cr.P.C recorded of Ct Rajesh, which was put to the PW14 Inspector Narender Singh Chauhan which is Ex.PW4/DX7 that on 19/07/11 Ct Rajesh took 8 samples to FSL via different RC 31 32 No. as the samples were deposited with MHCM on three different dates, three different Road Certificates were issued for depositing the sample ie RC No. 34, 35 and 36/21/11 for depositing the same in FSL, Rohini. As per the same submission relied upon by ld defence counsel duty clerk has refused to accept the sample and asked for consolidated RC of all the sample therefore, Ct Rajesh came back to PS and again went to FSL with consolidated Road Certificate no 37/21/11 but by the time he reached FSL, Rohini, office was closed hence the sample pulandas could not be deposited in FSL and thereafter on 20/07/11 Ct Narender, took the sample vide RC no 38/21/11 and got deposited the sample in FSL Rohini. After considering the statement of PW14, I am of the opinion that this statement rather clarifies the steps taken by the IO and does not leave any lapse or gap in the investigation. From this statement Ex.PW14/DX7 it is sufficiently explained by the prosecution that samples were sent to FSL on 19/07/11 but due to technical reason same could not be deposited and 32 33 thereafter samples were deposited on 20/07/11. Neither PW2 Ct Rajesh Kumar nor PW10 Ct Narender Kumar were asked any such question in cross examination by which they could have explained the entire procedure. Therefore, I am of the opinion that in the absence of any such cross examination being conducted of the witness, valuable opportunity has not been given to the witnesses to explain the procedure, hence this contention of Ld counsel for accused cannot be accepted.
33. As regards the arguments of Ld defence counsel for there being differences in the weight of the sample, it is clear that as per the case of the prosecution chance recovery of charas was made from the person of accused Kashiraj and by that time two rotties were taken as sample, which were found to be weighing 540 grams with polythene. As per the FSL result Ex.P.X the sample A1 was found to be weighing 526.86 grams with polythene and it has been rightly argued by Ld defence counsel that 526 grams could not have been measured by manual weighing 33 34 scale. This again shows the fairness of the case of the prosecution. It has been stated by the IO that weight of 5 grams to 1 kg were used for weighing contraband recovered from the possession of the accused, therefore, approximate weight of 540 grams was taken of two rotties with polythene, when it was sent to FSL, weight was actually found to be 526.86 grams. At this stage, it is important to consider that manual weighing scale used by the police does not have the scientific calibration, on the other hand weighing scale used by the FSL are electronic weighing scale, which was capable of weighing upto .01 gram, therefore, it is possible to weigh exact amount of weight being carried by the sample, which was not possible in the manual scale. Even otherwise, difference of 14grams could also be due to the reason of different weighing scale being used by the police/IO as well as FSL. In this regard, Ld defence counsel has relied upon the judgment BIJAY VS THE STATE 2011 (3) JCC (NARCOTICS) 195. On the other hand Ld Additional P.P has relied upon the judgment of 34 35 Kulwant Singh vs Narcotics Control Bureau decided on 18/01/2008 passed by Hon'ble Mr Justice S N Dhingra. Ld Additional P.P has also relied upon the judgment State by CBI vs Dilbagh (2004) 13 Supreme Court Cases 99 passed by Hon'ble Supreme Court. In both judgments, there was minor difference in the weight of sample which was sent to FSL and it was held that difference in weight could be due to the differences in weighing scale, therefore, it cannot be said that sample has been tampered. In the case State by C B I vs Dilbagh (2004) 13 Supreme Court Cases 99, Hon'ble Supreme Court has considered that when the sample was sent in sealed condition from the spot, deposited in malkhana in sealed condition, sent to FSL in sealed condition and the same was received in FSL in sealed condition and it has been stated that seal was not tampered hence it establish that whatsoever the sample was extracted was sent to chemical analizer and it cannot be considered that samples were tampered. In the case Kulwant Singh vs Narcotics Control Bureau it was held that: 35 36
"a plea has been taken by the appellant that weight of sample, as found by forensic laboratory was 4.6 grams and not 5 grams. The discrepancy in the weight of sample as found in the test laboratory is no ground to doubt the case of the prosecution. Anybody having a little knowledge of science and the scientific instrument knows that every scientific instrument has a least count. The accuracy of scientific balance is much more than the ordinary balance used by an IO and there may be a variation of weight plus or minus depending upon the least count of the scientific balance. The atomic balance are more accurate than scientific balance. Such balance are used in more sensitive laboratories and are accurate to .0001 grams and even more accurate. An investigating Officer, who draws sample for testing, need not have a balance of high accuracy in order to draw the samples. He can draw sample weighing approximately 05 grams using ordinary balance. If the sample is weighed at an accurate scientific balance used in CRCL, the weight of each sample is bound to occur."
34. Same situation applies to the present case, the difference of sample in the present case as stated by the police officials and as stated by the FSL is very small, it could be due to difference in weighing scale used. 36 37
35. It was also argued by ld defence counsel that since scientific expert has not been examined, who has prepared the FSL result hence the FSL result is not admissible in law. In this regard, Ld counsel for accused has relied upon the judgment of Attar Singhvs State (Delhi Admn.) 1994 III AD 626.
36. It appears that Ld counsel for accused has missed the amendment in law as it is very clear from the section 293 Cr.P.C that the reports filed by the Senior Scientific Officer is stated to be per se admissible u/s 293 Cr.P.C and as per law, if required, senior scientific officer may be called for cross examination. On similar fact, there is circular issued by Ld District & Sessions Judge, (H.Q) which is to the effect that "in pursuance of the letter no. 1185 /FSL dated 14/09/10 of Dr V K Goyal, Forensic Science Lab Govt of Delhi it is impressed upon all the Judicial Officers that since the reports of expert of Forensic Science Lab are admissible u/s 293 Cr.P.C , therefore experts from Forensic Science Lab may be summoned as witness only in the rare case 37 38 only for cross examination". Hence, I am of the opinion that ground taken by Ld counsel for accused for contesting the case of the prosecution is not a valid ground and is thus liable to be rejected.
GROUND NO. 2
37. The other contention of Ld defence counsel has been that as per the prosecution case, four police officials ie PW2 Ct Rajesh Kumar, PW6 SI Akshay, PW9 HC Diwan Singh and PW11 Ct Vishram were patrolling in the area when they saw accused Kashiraj Pariyar along with Roshan. Ld counsel for accused has raised doubt on the availability of four police officials in the area and has stated that per the defence witness DW1 who has proved the Ex.DW1/B, these police officials were on patrolling duty only from 9 a.m to 12 p.m and thus Ld defence counsel has tried to state that in the evening hours when the contraband was recovered from the accused persons, as per the case of the prosecution, these police officials ie PW2 Ct Rajesh Kumar, PW6 SI Akshay, PW9 HC Diwan Singh and PW11 Ct 38 39 Vishram were not on patrolling duty. Ld Additional P.P has argued in this regard that the document Ex.DW1/B cannot be solely relied upon to be considered that police officials in question PW2 Ct Rajesh Kumar, PW6 SI Akshay, PW9 HC Diwan Singh and PW11 Ct Vishram were not on patrolling duty at that time. It is also clear from the testimony of PW6 that only PW6, PW9 and PW11 have started from the PS on motorcycle for patrolling whereas PW2 Ct Rajesh was already in the area. This fact has been categorically explained by PW6 SI Akshay in his examination in chief as well as in cross examination. Considering the above contention of Ld counsel for the parties, it is important to consider that in the application moved for RTI which is Ex.DW1/A question no 3 particularly mentions about, "the patrolling bikes allotted to the persons who were on patrolling duty on 11/07/11"
and the answer to this question has been given according to which Ct Rajesh was given motorcycle for patrolling duty in the morning hours. It is the case of the prosecution as 39 40 stated by police official ie PW2 Ct Rajesh Kumar, PW6 SI Akshay, PW9 HC Diwan Singh and PW11 Ct Vishram that they were on patrolling on their 'private motorcycle'. It is specifically mentioned by PW6 in cross examination that they were patrolling the area on two private motorcycles. SI Akshay along with Ct Vishram and HC Diwan Singh lad left the PS simultaneously for patrolling and Ct Rajesh who was already in the area met them near Leelawati school. Thus, it is clear that since the police officials in question were patrolling area on private motorcycles, this fact could not have been answered by PS Gulabi Bagh, pursuant to the question no. 3 of RTI application Ex.DW1/A as the question specifically pertained to patrolling official who were given the official patrolling bikes. Thus, I am of the opinion that there is no discrepancy in the prosecution case and prosecution has been successful in proving that PW2 Ct Rajesh Kumar, PW6 SI Akshay, PW9 HC Diwan Singh and PW11 Ct Vishram were patrolling the area at the relevant time when the contraband was recovered from the 40 41 possession of the accused. Hence ground no. 2 as taken by Ld defence counsel is not proved by the defence. Ground no. 3
38. The contention of Ld defence counsel has been that since the FIR no. is mentioned on notice u/s 50 NDPS Act served to the accused, whether the FIR was recorded before serving the notice u/s 50 NDPS Act to the accused or otherwise it shows that there is manipulation in the notice. In order to prove this ground Ld counsel for accused has relied upon the judgment of Lalji Shukla vs The State 2000 (2) JCC 424 (Delhi).
39. I have considered the submissions and gone through the judgment of Lalji Shukla vs The State. In that case before Hon'ble High Court of Delhi has clearly observed that :
"The number of the FIR (Ex.PW6/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicate that these documents were prepared at the same time. The prosecution has not offered an 41 42 explanation whatsoever as to under what circumstances number of FIR (Ex.PW6/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before the registration of the FIR. This gives rise to two inferences that either the FIR (Ex.PW6/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration.
40. The case in hand can be differentiated from the facts before Hon'ble High Court of Delhi in Lalji Shukla vs The State, as in the present case, though it is clear that FIR has been mentioned on the notice u/s 50 NDPS Act given to the accused, Ex.PW6/A but it is clear from the document itself that the FIR no mentioned on the top of the notice is in different ink and different handwriting. Thus, it cannot be considered that FIR was registered prior to the recovery of the contraband. As regards the explanation of adding FIR lateron, it was the duty of the defence to raise the question in cross examination to the witness for giving opportunity to witness to explain under what circumstances FIR no. was mentioned on the notice u/s 50 NDPS Act. As far as 42 43 logical conclusion is concerned, it can be considered to be an irregularity on the part of the prosecution but it does not affect the root of the case as prosecution has been able to prove that on 11/07/2011 when PW2, PW6, PW9 and PW11 were on patrolling duty in the area, accused was stopped in suspicious condition and on cursery search of the accused, charas was recovered from the possession of the accused. I am of the opinion that since no opportunity was given to the witness to explain the circumstances under which FIR No. was mentioned on the document Ex.PW6/A ie notice u/s 50 NDPS Act, it cannot be considered that prosecution has not been able to explain the discrepancy, when no such opportunity was given to the prosecution. In the entire cross examination of all the prosecution witnesses, this question was never put to any of the witness by Ld defence counsel or by the Ld Amicus Curiae (earlier representing accused) on behalf of the accused, thus, at this stage, this contention cannot be accepted.
43 44 Ground No. 4
41. The fourth ground taken by Ld defence counsel is in respect to the non examination of public witnesses. The contention of Ld defence counsel has been that since there was school near the spot and there were guards in the school, it was the duty of the IO to call the guards for joining the investigation and since public witnesses were not joined the case of the prosecution suffers from material defects and thus becomes unreliable. After duly considering the contention of Ld defence counsel, I am of the opinion that the argument cannot be accepted. It is admitted that recovery has been effected in the night ie at about after 7.308 p.m and the remaining proceedings have been continued till 11.30p.m being night time, it cannot be considered that many public persons would have been available at the spot specially considering the fact that spot of incident is Railway line side wherein, otherwise no public persons can be presumed to be present. As regards, guards of the school, witnesses have clearly stated that 44 45 guards were not visible from the spot and hence no guard was called to join the investigation. In the entire cross examination of police officials ie PW2, PW6, PW9 and even PW14, no suggestion has been given to any of these witnesses that guards/chowkidar were present near the spot but they were deliberately not called by the police.
42. Ld defence counsel has also mentioned that there was difference in the statement of PW14 second IO of the case and other police officials as other witnesses have stated that they remained at the spot till 11.30p.m whereas PW14 had stated that he remained at the spot till 5 a.m. Thus this discrepancy and contradiction in the statement of prosecution witnesses discredited the case of the prosecution. I failed to accept the contention of Ld defence counsel. It is required to consider that the case pertains to the year 2011 , more specifically 11/07/11 when the first recovery of charas was made from the accused persons and evidence of PW14 was recorded on 16/07/15 ie after a gap of almost 4 years, cross examination of PW14 was 45 46 recorded. It is natural for human memory to fail or diminish in four years. It is also clear from the various answers given by PW14 wherein he has stated that due to lapse of time he does not remember the exact time when he reached the spot or whether any other proceedings was conducted by him. This relaxation in memory should be given to the witness as after gap of 4 years minor difference are bound to occur, specially considering the number of cases and nature of cases being investigated by the police officials of the rank of Inspector. Hence I do not find any substance in this contention and this ground is also not accepted.
43. It was also argued by ld defence counsel that in the site plan Ex.PW6/D actual position of the police officials and the way from which the accused persons have come has not been shown. After considering the site plan Ex.PW6/D I disagree with the contention of Ld defence counsel. On the top of the site plan railway line has been clearly shown by the IO. In the site plan at point A, accused persons were 46 47 present when they saw the police officials and started running back and point B is the place where they were apprehended by the police. Even Leelawati school has been shown in the site plan, thus it could be easily inferred that police party were present near Leelawati school, they were going towards railway line and they saw two persons coming from railway line, who after seeing the police party, started running back and were lateron apprehended. It cannot be said that the site plan Ex.PW6/D does not depict the true picture of the spot or merely because this it cannot be inferred that proceedings had not been conducted at the spot.
Ground no. 5
44. In ground no. 5, Ld defence counsel has raised the question as to who booked parcels from DTDC and how many parcels were booked from each of DTDC office. While arguing on these points, Ld defence counsel has stated that as per PW3 Anil Rawat, employee of DTDC, the international consignment should have gone within 24 47 48 hours but were not sent in this case. This shows that parcels were planted upon the accused persons. It is also argued by ld defence counsel that ID documents provided by the accused persons as per the case of the prosecution is of Jeevan Sakiya and no investigation was carried out by police in respect to Jeevan Sakiya or Dorje Lamba in whose name parcels were booked at Vijay Nagar . Much stress was given by Ld counsel for the accused on the point that PW8 who was Branch Manager of the DTDC had stated that all the employees of the DTDC follow the rules and as per rules the international consignment were to be sent within 24 hours but the same rule was not applied in the present case and even after 23 days parcels were allegedly booked in the office not sent to the consignee which shows that parcels were planted upon accused persons. I am of the view that while arguing on this point, Ld defence counsel had not considered the complete testimony of all three employees of DTDC ie PW3, PW8 and PW12. PW3 is the person who was working at Khidki Extension where two parcels were 48 49 booked on 05/07/11 by Kashiraj and at that time he was accompanied with one person Bir Bahadur. As per prosecution, PW8 and PW12 who were working at Vijay Nagar branch of DTDC, where accused Kashiraj had booked four parcels in Vijay Nagar Branch on 09/07/11. In the cross examination all three witnesses PW3, PW8 and PW11 have clearly stated that in case identification proof of consignor is not legible or incomplete, consignment can be delayed or can be withheld. No suggestion was given by Ld defence counsel on behalf of the accused Kashiraj that there was no deficiency in the document of these parcels and therefore these parcels should have been sent to Hongkong within 24 hours on their booking. Hence it is proved by PW3, PW8 and PW12 that consignment which were booked by kashiraj whether it was in the name of Dorje Lamba, Akbar Ali but the parcels were not having complete address or documents , therefore the same were withheld by DTDC and only because of this reason, these parcels could be recovered from the office of DTDC. All the 49 50 three employees of DTDC have specifically explained and identified that accused Kashiraj was the person who had come to their office to book these parcels along with one other person. Identity of that person is neither in doubt nor required to be proved. The prosecution has also been able to prove specifically that all those parcels booked with DTDC were having rottinuma charas in them which were sent to FSL and as per result of FSL, contraband was found to be 'charas'. Therefore, it cannot be said that these parcels were not booked by Kashiraj or that these parcels were not having the charas. The entire stress of Ld counsel for accused has been on the point that why these parcels were not sent to consignee within 24 hours, in my opinion this question has been specially explained by all the three witnesses that documents were incomplete and therefore the parcels were not sent to Hongkong. Thus, nothing wrong can be interpreted or read in the testimony of PW3, PW8 and PW12 in whose presence these parcels were booked & recovered from the office of DTDC. 50 51
45. It has been proved by the prosecution that two parcels were booked from Khidki Extension and four parcels were booked at Vijay Nagar office of DTDC and all the six parcels were clearly identified by the witneses. PW12 had stated that all the six parcels were weighed at Vijay Nagar office where PW8 and PW12 were present, therefore, all the parcels have been identified by PW8 and PW12 clearly. There is no lacuna or deficiency in the case of the prosecution in this regard. It has been clearly proved by DTDC official that since the documents of identification of consignor was not given, therefore parcels were stopped. It is also clear from the case of the prosecution that within few days ie 23 days accused Kashi Raj was apprehended with the charas and he led the police official to the DTDC office at Vijay Nagar and Khidki Extension, which again resulted in recovery of these six parcels containing charas. This ground of Ld defence counsel is thus also not substantiated.
Ground No. 6 51 52
46. Last ground taken by the Ld defence counsel is that whether the disclosure of the accused was recorded prior to the arrest or after the arrest. This objection has been taken by ld defence counsel on the basis of the statements of PW14 Inspector Narender Singh Chauhan second IO of the case. As he has stated in his statement that after interrogating the accused he recorded the disclosure statement Ex.PW11/A and in the second line he had stated that he prepared arrest and body inspection memo of accused Ex.PW2/B and Ex.PW14/A. I am of the opinion that merely because the witness has firstly stated about recording of disclosure statement and subsequently stated about the arrest of the accused, it cannot be said that arrest of the accused was effected after recording the disclosure statement of the accused. In the cross examination ld defence counsel has not tried to clarify this fact from the witness. No question was put to the witness to explain whether the disclosure statement was recorded firstly or whether the arrest was made prior to the disclosure 52 53 statement or not. In the entire cross examination not even a single statement has been made in this regard nor suggestion has been given to the witness that arrest of accused was effected later on after recording his disclosure statements in the absence of there being any such statement coming on record in evidence on the part of PW14, it cannot be considered that there was any irregularity in recording the disclosure statement or arrest of the accused. Hence this contention of Ld defence counsel is not accepted.
47. ld defence counsel has also argued that IO had not investigated about the Dorje Lamba, Akbar Ali and Jeevan Sakiya, I am of the opinion that this question has already been answered by PW14 wherein he had specifically stated that address mentioned on the document filed in DTDC was found to be fake. No suggestion has been given to the witness about the address mentioned in the document filed with DTDC being correct address or that Dorje Lamba, Akbar Ali and Jeevan Sakiya were actually 53 54 residing at the address mentioned on these documents.
48. Ld defence counsel has also taken the objection that when the handwriting of accused was taken, why the same was not sent to FSL as if the handwriting would have been sent to FSL it would have been proved that slips on the DTDC were not filled by the accused. Again this contention has been answered by PW14 by saying that no admitted handwriting of Kashiraj or Dorje Lamba, Akbar Ali and Jeevan Sakiya was available with them therefore, handwriting was not sent to FSL. Even otherwise, I am of the opinion that it is not necessary that the documents given in DTDC office would have been filled by the accused Kashiraj himself as it is not the case of any of the witness ie PW3, PW8 and PW11. Documents could have been filled by other persons accompanying accused Kashiraj ie Bir Bahadur, at one instance and Roshan Sodan (JICL) at second instance. Therefore, I am of the opinion that even if the handwriting of accused Kashiraj could have been sent to FSL, same could not have been checked when admitted 54 55 handwriting and author of the documents given to the DTDC could not have been ascertained.
49. In view of my above discussion, I am of the opinion that prosecution has proved its case beyond reasonable doubt that accused was found in conscious possession of 1 KG 360 grams of Ganja on 11/07/2011, on 12/07/2011 accused got effected recovery of 4 card board boxes containing 72 Rottinama pieces of charas ie 20 kg and 562 grams from DTDC, courier office situated at Vijay Nagar and on 13/07/2011, accused got effected recovery of two card board boxes containing 36 rottinuma pieces of charas ie 8 kg and 626 grams from DTDC courier office. Holding the accused guilty, I convict accused Kashiraj Pariyar u/s 20 ( C ) NDPS Act, 1985.
ANNOUNCED IN THE OPEN COURT ON 14/12/2015 (SHAIL JAIN ) SPECIAL JUDGE: NDPS02 CENTRAL DELHI 55