Delhi District Court
State vs . Kusum on 20 February, 2015
IN THE COURT OF MR. UMED SINGH GREWAL,
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT: ROHINI COURTS:DELHI
SC No.27/12
FIR No.11/2012
U/s 21/61/85 NDPS Act
PS Crime Branch
State
Versus
Ms. Kusum
w/o Manoj Kumar
R/o H.No.
Sultanpuri,Delhi.
DATE OF INSTITUTION : 04.01.2014
RESERVED FOR JUDGMENT : 18.11.2014
DATE OF JUDGMENT : 20.01.2015
Appearances: Mr. J.S. Malik, APP for the State.
Mr.Kundan Kumar, counsel for accused.
JUDGEMENT
1. Accused has been forwarded by the police to face trial u/s 21 of NDPS Act for being in possession of 500 gms. heroin illegally.
2. Facts are that secret informer gave tip off to SI Sunil Kumar in SIT office on 110112 that two sisters namely Kusum State Vs. Kusum FIR No. 11/12 PS Crime Branch page 1 of 56 and Mala @ Mamta were engaged in the supply of heroin and on that day, they would come at 100 foota road near Rajkiya Uchattar (Girls & Boys), School, Sector20, Rohini between 7.30 8.30 PM to deliver huge consignment. Informer was produced before inspt. Rajesh Sharma, who, after satisfaction, passed information to Addl. DCP Joy Tirkey nodded for further action. Information was reduced into writing in the form of DD No.24 and a raiding team comprising of SI Sunil Kumar, informer, HC Kanwar Pal, Ct. Neeraj and W. Ct. Rajbala was formed who left for the spot at 6.45 PM with field testing kit, electronic weighing machine and IO kit in ETIOS car. At Rithala metro station and spot, 55 passersby were asked to join the raiding team but they refused. The raiding team members were positioned at the spot. A lady came from the side of Mangolpuri bus terminal at 8.25 PM and stood about 10 meters away from the gate of the school. She waited for somebody for five minutes and started retreating towards Sultanpuri bus terminal. She was apprehended at 8.30 PM. Notice u/s 50 NDPS Act was served and interpreted to her. She was also given option to search the vehicle of the police party. Both options were declined and thereafter SI Sunil Kumar instructed W.Ct. Rajbala to search the accused. W.Ct. Rajbala took her inside the ETIOS car and brought out a polythene and produced before SI saying that accused was having that polythene in her left armpit. On checking on field testing kit and State Vs. Kusum FIR No. 11/12 PS Crime Branch page 2 of 56 weighing machine it was found containing 500 gms heroin. Two samples of 5 gms. each were separated and mark A & B were given. Remnant heroin was put in the same recovered polythene and mark C was given. FSL form was filled up. All three parcels and FSL form were sealed with the seal of SK and seal after use was handed over to W.Ct. Rajbala. Duty officer was asked on phone to send the second IO and he replied that ASI Harcharan Singh was reaching the spot shortly. Rukka, case property and carbon copy of seizure memo were taken to PS by HC Kanwar Pal.
Further investigation was conducted by ASI Harcharan Singh. Sample mark A was sent to FSL which opined that it was containing Diacetylmorphine (36.3%) and Paracetamol.
3. Charge u/s 21 of NDPS Act was framed against the accused on 30042012 to which she claimed trial.
4. In order to substantiate the allegations, prosecution examined 11 witnesses. The accused also did not lag behind and examined 10 witnesses in defence.
5. PW1 inspt. Rajesh Sharma deposed that on 1101 2012 at 6.55 PM, SI Sunil Kumar produced informer before him and after satisfaction, he flashed the information to Addl. DCP Joy Tirkey on phone who instructed to proceed further. DD no.24 A was registered at 6.30 PM copy of which was handed over to him and he forwarded the same to senior officials. A State Vs. Kusum FIR No. 11/12 PS Crime Branch page 3 of 56 raiding team of SI Sunil Kumar, informer, HC Kanwar Pal, Ct. Neeraj and W. Ct. Rajbala was formed which left the spot at 6.45 PM. He further deposed that ASI Harcharan Singh produced accused Kusum before him next morning at 4.45 AM and he found her arrest justified. ASI Harcharan also produced the report Ex.PW1/C u/s 57 of NDPS Act regarding arrest of the accused. Seizure report Ex.PW1/B u/s 57 of NDPS Act was also produced before him.
PW10 HC Kamal Singh got registered case FIR Ex.PW10/A on 12012012 at 12.35 AM on receipt of rukka brought by HC Kanwar Pal sent by SI Sunil Kumar and after registration, made endorsement Ex.PW10/B on rukka. He also proved DD No.19 which he registered regarding registration of FIR.
PW4 SHO inspt. C.R. Meena deposed that on 1201 2012 at 12.40 AM, HC Kanwarpal handed him over three cloth parcels mark A, B and C, FSL form and carbon copy of seizure memo. Parcels and FSL form were having seals of SK. He put his own seal of CRM on them and also wrote FIR number and deposited the same with MHC(M) HC Jagnarain who made entry in register no.19. After deposit, he recorded DD No.20 Ex.PW4/A at 1.15 AM. Pullanda Mark A was sent to FSL Rohini on 23012012 on his instructions.
PW7 HC Jagnarain MHC(M) deposed that on 1201 State Vs. Kusum FIR No. 11/12 PS Crime Branch page 4 of 56 2012 at 1.00 AM, SHO inspt. C.R. Meena called him in his office with register no.19 and handed over three pullandas mark A, B, C and FSL form all having one seal of SK and CRM. He further deposed that SHO had put his signature and case particulars on the pullandas, FSL form and carbon copy of seizure memo. After deposit in malkhana, he made entry no.1161 Ex.PW7/A in register no.19. He further deposed that ASI Harcharan Singh deposited personal search articles including carbon copy of notice u/s 50 of NDPS Act and a cash of Rs.1240/, one TATA mobile phone having SIM No.9211245029, at 3.00 AM. On 23 012012, as per the instructions of SHO, he handed over sample pullanda mark A and FSL form in sealed condition to HC Jai Singh vide RC No.36/21/11 Ex.PW7/B for deposit in FSL and after deposit, HC Jai Singh handed him over receipt acknowledgment Ex.PW7/C and copy of RC. Remnant sample pullanda and FSL report were received in malkhana on 2404 2012 through Ct. Suresh.
PW6 HC Jai Singh also corroborated PW7 by deposing that he had taken delivery of sample pullanda mark A and FSL form in sealed condition from MHC(M) on 23012012 vide RC No.36/21/12 and after deposit, he handed over to MHC(M) receipt acknowledgment and copy of RC. Both these witnesses did not tamper with the case property until it was in their possession.
State Vs. Kusum
FIR No. 11/12 PS Crime Branch page 5 of 56
PW8 Dr. Joy Tirkey is Addl. DCP. He deposed that inspt. Rajesh Sharma had informed him on telephone on 1101 2012 at 6.30 PM that there was a secret information that two sisters namely Kusum and Mala @ Mamta were dealing in supply of heroin and on that day, they would come near a school in Sector20, Rohini to supply huge quantity of heroin. He deposed that he instructed him to take immediate legal action. He was informed on 12012012 regarding receipt of DD No.24 (secret information reduced into writing) as Ex.PW8/A. He further deposed that on 12012012 special reports Ex.PW8/B and Ex.PW8/C u/s 57 NDPS Act regarding seizure of heroin and arrest of accused Kusum respectively were produced before him. DD No.24 and reports u/s 57 of NDPS Act were received in his office vide dak entry nos.54, 55 and 58 Ex.PW8/D(Colly) on 12.02.2012.
PW9 ASI Harcharan Singh is the second IO to whom further investigation was assigned by inspt. Rajesh Sharma on 11012012 at 11.00 PM. He reached the spot at 11.45 PM and found SI Sunil Kumar, W.Ct. Rajbala, Ct. Neeraj and accused there. SI Sunil Kumar handed him over all relevant documents and also the custody of accused and he prepared rough site plan Ex.PW9/A at his instance. He sent Ct. Neeraj to nearest PS Aman Vihar to know the number of the FIR. He arrested accused vide arrest and personal search memos Ex.PW2/E and State Vs. Kusum FIR No. 11/12 PS Crime Branch page 6 of 56 Ex.PW2/F. Her personal search was conducted by lady Ct. Rajbala at his instance. He further deposed that from the personal search of accused, a carbon copy of notice u/s 50 of NDPS Act Ex.P4, cash of Rs.1240/ and gold and silver jewellery articles were recovered which were kept in cloth pullanda which was sealed with the seal of HSS. He added that a mobile phone was also recovered from her personal search. He recorded disclosure statement Ex.PW2/G of the accused after interrogation. He reached PS Crimebranch, Nehru Place and deposited the personal search articles with MHC(M) at 3.00 AM. He left PS at 3.45 AM and reached SIT office, Rohini at 4.45 AM where HC Kanwar Pal handed over original rukka and copy of FIR. Accused was produced before inspt. Rajesh Sharma who found her arrest justified. He further deposed that a lady namely Pooja wife of brother of accused also reached the office of SIT and she was informed about her arrest. Report Ex.PW8/C u/s 57 of NDPS Act regarding arrest of accused was sent on 12.01.2012. He further deposed that after interrogation on 13.01.2012, he recorded supplementary disclosure statement Ex.PW5/A of the accused. After obtaining permission for outstation, he alongwith inspt. Rajesh Sharma, SI Shiv Darshan, HC Kanwarpal, Ct. Atul, Ct. Saroj and accused left Delhi next day and reached PS Faridpur, District Bareilly at 2.15 PM. They took the local police with them and reached village Behra, State Vs. Kusum FIR No. 11/12 PS Crime Branch page 7 of 56 District Bareilly where house of source person Ashfaq was located. Accused Kusum led the police party to Ashfaq's house and pointed that out and pointing out memo Ex.PW5/B was written. The house was found locked and the neighbours told that Ashfaq had left the village 23 days ago with his children. Notice u/s 67 of NDPS Act was pasted on the house. He tendered the FSL result as Ex.PW9/C. PW5 HC Saroj was present on 13.01.2012 when ASI Harcharan Singh recorded supplementary statement Ex.PW5/A of the accused. She accompanied the IO and other police officials to PS Faridpur, District Bareilly on 14012012 and then to village Behra where accused Kusum had pointed out the house of Ashfaq which was found locked.
6. PW2, PW3 and PW11 are recovery witnesses. The raiding team was headed by SI Sunil.
PW2 SI Sunil Kumar deposed that on 11012012 at 6.15 PM, secret informer gave him the tip off in the office that two sisters namely Kusum and Mamta @ Mala were engaged in the supply of heroin in huge quantity and on that day, they would come at 100 foota road near the gate of Govt. Sr. Secondary School(Girls & Boys), Sector20, Rohini between 7.308.30 PM to supply heroin. He produced the informer before inspt. Rajesh Sharma, who, after satisfaction, passed that information to Addl. DCP Joy Tirkey on phone and Addl. DCP State Vs. Kusum FIR No. 11/12 PS Crime Branch page 8 of 56 directed them to conduct raid immediately. Before it he had written secret information at 6.30 PM in writing in the form of DD No.24 Ex.PW1/A, copy of which was produced before inspt. Rajesh Sharma who forwarded the same to senior officers. A raiding team of himself, HC Kanwar Pal, Ct. Neeraj and lady Ct. Rajbala was formed which left for the spot at 6.45 PM with field testing kit, electronic weighing machine and IO bag vide DD No.25 Ex.PW2/A in ETIOS car. They reached the spot at 7.15 PM via Rithala Metro Station. In the way, under Rithala Metro station, he asked five passersby to join the investigation but they refused. He further deposed that ETIOS car was parked 100 meters away from the gate of the school towards sector21,22, Rohini. He, lady Ct. Rajbala and informer took positions at the gate of the school and HC Kanwar Pal and Ct. Neeraj were positioned opposite to them. A lady wearing shawl was seen coming from the side of Sultanpuri bus terminal at 8.25 PM. She stood for five minutes about 10 meters away from the school. After waiting for somebody, she started going back but, at the instance of informer, she was overpowered and on inquiry she disclosed her identity as Kusum. She was told about the secret information and that she had a legal right to be searched in the presence of gazetted officer or Magistrate and in this regard carbon copy Ex.P4 of notice u/s 50 NDPS Act was supplied to her and original copy Ex.PW2/B was retained by State Vs. Kusum FIR No. 11/12 PS Crime Branch page 9 of 56 him. She was illiterate and hence her refusal reply at point X to X on notice page itself was written by him. He further deposed that he again asked five passersby to join the proceedings but none agreed. Thereafter ETIOS car was brought by Ct.Neeraj to the spot. He instructed lady Ct. to search the accused inside the vehicle. W.Ct. Rajbala took her in ETIOS car and came out with a cream colour bag containing white heavy polythene tied with rubber band and handed over bag to him. He opened the polythene and it was found containing brown colour powder which gave positive result for heroin and it was found 500 gms. He further deposed that two samples of 500 gms. each were separated and were packed in separate small interlocking polythenes and mark A & B were given to them. Remaining 490 gms. heroin was put in the same polythene and cloth pullanda was prepared on which mark C was given. FSL form was filled up at the spot and three pullandas and FSL form were sealed with the seal of SK and seal after use was handed over to lady Ct. Rajbala. Pullandas and FSL form were seized vide seizure memo Ex.PW2/C. First IO further deposed that HC Kanwar Pal wrote rukka Ex.PW2/D on his dictation. Rukka, carbon copy of seizure memo, all pullandas and FSL form were given to HC Kanwar Pal with a direction to give rukka to DO and remaining articles to SHO. He left at 11.30 PM. Duty officer was already informed on phone to send second IO for further investigation.
State Vs. Kusum
FIR No. 11/12 PS Crime Branch page 10 of 56
Second IO ASI Harcharan came to the spot at 11.55 PM. He pointed out the place of recovery and in this way rough site plan was prepared by second IO. The accused was arrested at 1.30 AM on 120112 vide arrest and personal search memos Ex.PW2/E and Ex.PW2/F and her disclosure statement Ex.PW2/G was recorded. He further deposed that he prepared report u/s 57 of NDPS Act regarding seizure of 500 gms. heroin and submitted before inspt. Rajesh Sharma on 12012012 and inspt. forwarded that report to senior officers.
PW3 HC Kanwarpal corroborated PW2 by deposing that rukka and case property were handed over to him by the first IO. He left the spot for PS at 11.30 PM and reached PS Crime branch at 12.30 AM. He produced rukka before DO who got registered FIR. Then he went to the office of SHO at 12.40 AM and produced case property before him who affixed his seal of CRM on all pullandas and FSL form and also wrote FIR number on them and deposited the case property with the MHC(M) who made entry in register no.19. Duty officer handed him over copy of FIR and original rukka at 2.30 AM and he reached the office of SIT at 3.30 AM. ASI Harcharan Singh came to the office on 12012012 at 5.00 AM and he handed over those documents to him and his statement was recorded.
7. PW11 lady Ct. Rajbala deposed that she was called by SI Sunil Kumar in his room through duty officer at 5.36 PM and State Vs. Kusum FIR No. 11/12 PS Crime Branch page 11 of 56 SI Sunil asked her to join him in a raid. A raiding party was formed at 6.45 PM. She further deposed that at 8.25 PM, the lady accused was apprehended when she was coming from the side of Sultanpuri bus terminal on foot. Notice u/s 50 of NDPS Act was given to her but she is not aware what was written in that notice. Thereafter she searched accused Kusum in the car and she was found having a green colour cloth bag having zip. She produced that bag before IO which was found containing one transparent polythene whose mouth was tied with rubber band. The polythene was further containing a cream colour powder which was tested on field testing kit and it was found afeem. She took U turn and stated that it was smack. It was 500 gms. out of which two samples of 5 gm. each were separated which were sealed with the seal of SK. Ct. Neeraj was sent to PS Aman Vihar and HC Kanwarpal was sent to their PS for registration of FIR. She further deposed that Ct. Neeraj was again sent to PS Aman Vihar to bring ASI Harcharan. She again searched accused Kusum and this time, carbon copy of notice u/s 50 of NDPS Act, cash of Rs.1240/, one TATA mobile phone, one chain with locket and other things were recovered from her personal search. She was declared hostile and was cross examined by APP on 09092013. On the same day she was crossexamined by the defence counsels and her further cross examination was deferred as no time was left.
State Vs. Kusum
FIR No. 11/12 PS Crime Branch page 12 of 56
On 29112013, when she appeared for cross examination to be done by the defence counsel, she submitted that on the previous date she was not feeling well due to high blood pressure and loose motions and hence could not depose true and correct facts. In this regard, she has placed on record medical prescription slip Ex.PW11/C dated 09092013 issued by Delhi Government Dispensary, District Courts, Rohini, Delhi. She had requested that she wanted to depose afresh. She was permitted and her examination in chief was recorded in which she deposed that on 11012012, on the asking of SI Sunil Kumar through DO, she went upstairs and SI Sunil Kumar asked if other lady police official was available and she replied in negative and thereafter SI Sunil asked her to accompany them. She alongwith other members left the Cell at 6.45 PM and reached near Sarvodaya School. She again told the name of the school as Rajkiya Uchattar (Girls & Boys) having two gates. She further deposed that a lady wearing shawl was seen coming from the side of Sultanpuri bus terminal on foot. Informer pointed out towards the lady at 8.25 PM. On the instructions of SI Sunil, she took accused Kusum in a car and searched her and she was found carrying a cream colour cloth bag in the right armpit. At that time only she and accused were present in the car. She handed over the cloth bag to SI Sunil Kumar and thereafter notice u/s 50 NDPS Act was given to her. She further State Vs. Kusum FIR No. 11/12 PS Crime Branch page 13 of 56 deposed that IO had prepared three forms in carbon copy. The first form was notice u/s 50 NDPS Act, second form was smack form and the third one was the tehrir. The recovered smack was weighed and it was found 500 gms. out of which two samples of 5 gm. were separated and seal of SK was affixed. Remnant smack was put in the same recovered polythene and it was also sealed with the seal of SK. On the asking of SI Sunil Kumar, Ct. Neeraj rang up the Cell, sector18, Rohini for sending the second IO and a Sikh ASI came there at 11.55 PM in his own car as further investigation was assigned to him. She lastly deposed that HC Kanwarpal had already left at 11.30 PM with rukka.
8. DW1 Mr. Rajeev Sharma is nodal officer of Reliance Communications Ltd. and he proved the CAF, accompanying document i.e. voter Icard and CDRs from 06122011 to 1401 2012 of mobile phone no.8010516464 activated in the name of Mamta Sapra w/o Vinod Kumar Sapara on 21022011, as Ex.DW1/A, Ex.DW1/B and Ex.DW1/C respectively.
DW2 Mr. Israr Babu, is nodal officer of Vodafone Mobile Services Ltd. and he proved the CAF, accompanying document i.e. voter Icard and CDRs of mobile phone no.9899068631 from 06122011 to 14012012 activated in the name of Subhash Jain s/o Moti Lal Jain on 30122009, as Ex.DW2/A, Ex.DW2/B and Ex.DW2/C respectively. He also proved the CAF, accompanying document i.e. driving licence State Vs. Kusum FIR No. 11/12 PS Crime Branch page 14 of 56 and CDRs from 06122011 to 14012012 of mobile phone no.9899114807, activated in the name of Rajeshwar Singh s/o S.P. Singh on 27.03.2004, as Ex.DW2/E, Ex.DW2/F and Ex.DW2/G respectively. He also proved the CAF, accompanying document i.e. passport and CDRs from 06122011 to 1401 2012 of mobile phone no.9873848586 issued in the name of Manjeet on 14012012, as Ex.DW2/J, Ex.DW2/K respectively.
DW3 Mr.Rajeev Ranjan, is again nodal officer of Tata Tele Services Ltd., and he proved the CAF, accompanying document i.e. voter Icard and CDRs from 06122011 to 14012012 of mobile phone no.9289561331 activated in the name of Vinod Kumar Sharma s/o Kishan Lal on 14012012, as Ex.DW3/A, Ex.DW3/B and Ex.DW3/C respectively. He also proved the CAF, accompanying document i.e. DL and CDRs from 06122011 to 14012012 of mobile phone no.9213064647 activated in the name of Shyam Kumar Sharma s/o Rajesh Parsad on 1903 2008, as Ex.DW3/F, Ex.DW3/G and Ex.DW3/H respectively. He also proved he proved the CAF, accompanying documents i.e. PAN card, form60 and CDRs from 06122011 to 14012012 of mobile phone no.9212442855 activated in the name of Shiv Darshan s/o J.P. Sharma on 12112007, as Ex.DW3/L, Ex.DW3/M, Ex.DW3/N and Ex.PW3/P and customer declaration form as Ex.DW3/O respectively.
9. DW4 Mr. Vishal Gaurav is nodal officer of Bharti Airtel State Vs. Kusum FIR No. 11/12 PS Crime Branch page 15 of 56 Ltd. He brought the record of mobile phone no.9810116803 initially activated in 2005 in the name of Kanwar pal s/o Ram Pal Singh r/o C581, LIG Flats, East of Loni road near Sarvodaya Kanya, Delhi93 on the strength of his voter Icard. The SIM was changed from the name of Kanwarpal to the name of Kanwar Pal (same person) on 18082010. SIM change request form is Ex.DW4/A, copy of voter card is Ex.DW4/B and CDRs from 06 122011 to 14012012 are Ex.DW4/C. He also proved the CAF, accompanying document i.e. passport and CDRs from 06 122011 to 14012012 of mobile phone no.9818210105 activated in the name of Geeta w/o Sunil Kumar on 04062005, as Ex.DW4/D, Ex.DW4/E and Ex.DW4/F respectively. Accused is claiming that SI Sunil Kumar was using that number and he had taken the SIM in the name of his wife Geeta.
DW5 Mr. Vinod Kumar is nodal officer of MTNL Ltd. and he proved the CAF, accompanying document i.e. voter Icard and CDRs from 06122011 to 14012012 of mobile phone no.9968151208 activated in the name of Ved Prakash s/o Chander Pal on 01082008, as Ex.DW5/A, Ex.DW5/B and Ex.DW5/C respectively. He also proved the CAF as Ex.PW5/E of mobile phone no.9868640681 activated in the name of Neeraj Kumar s/o Harpal Singh on the strength of his driving licence Ex.DW5/F.
10. DW6 Smt. Pooja is bhabhi of accused Kusum. She State Vs. Kusum FIR No. 11/12 PS Crime Branch page 16 of 56 deposed that some police officials including a lady came to her house at Aman Vihar on 11012012 at 7.007.30 PM and at that time Kusum was also there. Those 45 police officials started forcibly taking Kusum due to which they raised noise and hence she, her sister Lata and daughter Toshi alongwith Kusum were taken to office situated in sector18, Rohini at 8.00 PM. Thereafter police officials told her husband Dinesh @ Danny on phone about their detention. Her husband was again contacted by them and was asked to reach to the said office with Rs.5 lacs. She further deposed that her niece Pooja and Pooja's motherin law Reeta came to the office of Crimebranch and they were also told by police officials to arrange Rs.5 lacs for their release. These ladies left the office and returned at 2.303.00 AM and handed over money to inspt. Rajesh Sharma and ASI Harcharan. She, her sister Lata and daughter were released but her sister Kusum was kept confined saying that she would be released next morning. She came to know in the afternoon that Kusum had been falsely implicated in a case though nothing was recovered from her when she alongwith others was lifted from her house.
DW7 Pooja is the daughter of accused. She deposed that on 10012012, she received phone call from her maternal uncle (mama) Danny that her mother Kusum alongwith her sisters Pooja and Lata and Pooja's daughter were lifted by police officials from his house at 9.00 PM. Her mama rang her up State Vs. Kusum FIR No. 11/12 PS Crime Branch page 17 of 56 again at 12 midnight to tell that all ladies had been kept in the office of Crime branch, Sector18,Rohini. So, she alongwith her motherinlaw Reeta reached there at 12.30 AM and a Sikh policeman met them and disclosed his name as Harcharan Singh and on inquiry, he told that women from their family were in the office but they were not allowed to meet them. When she inquired the reason of confinement, ASI Harcharan told that her mother was a famous lady and she was wanted by the police for a long time. They further told her that though nothing was recovered from her possession but she would be released only after payment of Rs.5 lacs. ASI Harcharan Singh advised her to go with one Dabbu who was present in the office. She returned home, took gold ornaments and went to Sector11 to one Rahul who was known to Dabbu. She pledged her jewellery with Rahul in Rs.5 lacs. She further deposed that she alongwith her motherinlaw, Rahul and Dabbu went to Crime branch office and handed over Rs.5 lacs to ASI Harcharan Singh in the presence of inspt. Rajesh Sharma and thereafter Pooja, Lata and daughter of Pooja were released but her mother Kusum was kept confined. The police official assured them that she would be released in the morning. When her mother did not return in the morning, she alongwith other ladies went to the office of Crime branch at 7.00 AM and ASI Harcharan told them that he was facing heat from senior officials and that is why Kusum had been State Vs. Kusum FIR No. 11/12 PS Crime Branch page 18 of 56 falsely implicated after planting 100 gms. charas. She further deposed that Harcharan assured that her mother would get bail soon from the court. She also appeared in the court when her mother was produced in the court and filed complaint Ex.DW7/A against police officials.
11. DW8 Mamta Sapra deposed that on 10112011 at 9.00 AM, when she was about to start scooty to go to her factory, a policeman namely Sunil stopped her scooty and snatched the key forcibly while inquiring whether she was Mala. When she replied in affirmative, police officials Harcharan, K.P. Singh and a lady constable took her to her house from where her husband was also picked up and both were taken to SIT office, Sector18, Rohini. They inquired about her sister Kusum and demanded Rs.1 lac for her and her husband's release. Her husband rang up his friend who arranged a sum of Rs.60,000/ and after payment of that amount, they were released. When she threatened to lodge complaint against them, ASI Harcharan threatened that she alongwith her sister Kusum would be implicated falsely in NDPS case for which they were planing since long ago. She further deposed that her husband felt scared and restrained her from filing any complaint. When her sister Kusum was falsely implicated, she lodged a complaint Ex.DW8/A to the commissioner of police on 16012012.
DW9 Vishram Singh is Ahlmad posted in the court of State Vs. Kusum FIR No. 11/12 PS Crime Branch page 19 of 56 ld. CMM. North, Rohini Courts, Delhi. He proved the complaint filed against ASI Harcharan Singh u/s 384, 388, 380, 395, 506, 120B IPC as Ex. DW9/A (14 pages). He also proved the transcript of phone conversation between complainant and ASI Harcharan Singh as Ex.DW9/B. DW10 HC Sukh Chain proved FIR No.11/14 u/s 384 IPC PS Crimebranch as Ex.DW10/A registered on the complaint filed by Hardeep Singh against ASI Harcharan Singh.
12. Ld. defence counsels argued that police has breached the mandatory provisions of section 41(2), 42, 43, 50(1) and 50(4) NDPS Act and section 165 (3) CrPC. They further submitted that original of DD No. 24 i.e., secret information in writing was not produced and hence, DD no.24 went unproved. They expressed apprehension of tampering of case property and doubted the genuinity of FSL report also. Ld. counsels further argued that FSL form was not sent with the sample to the FSL. They drew the attention of the court towards the deposition of defence witnesses to argue that police was hellbent to frame accused Kusum in a false case to extract money from her. That is why daughter of the accused had made statement before this court on the day one when accused was produced in the court. They submitted that evidence of second IO cannot be taken into account due to his conduct and also at the relevant time, location of his mobile phone was in Ghaziabad. It is further State Vs. Kusum FIR No. 11/12 PS Crime Branch page 20 of 56 argued that mobile phone no. 9810116803 and 9818210105 were being used by witnesses Kanwar Pal and SI Sunil. At the relevant time, location of mobile phone of Kanwar Pal was in the area of Khureji Khas, New Govind Puri, Delhi and of SI Sunil was in the area of Kirari Suleman Nagar.
13. PUBLIC WITNESSES Ld. defence counsels argued that recovery was effected from public place in front of school at 8.30pm and despite it no public witness was joined.
About the joining of public witnesses, PW2 deposed that on the way to the spot under Rithala Metro station and on the spot, he had asked five passersby each to join the investigation but they declined and left he spot without disclosing their names and addresses. To the same effect is the testimony of PW3 and PW11. As per rough site plan Ex.PW9/A, the recovery was effected in front of a school. It is a twoway road. A shop namely Jai Amba Marble is situated on the other side of the road leading to sector 21,22, Rohini. So, defence counsels are not correct to say that IO did not join independent public witnesses deliberately. Moreover, nonjoining of public witnesses is not fatal to the search and consequent recovery. It was held in State of U. P. Vs. Anil Singh 1988 SUPP SCC 686 by the Apex Court that the public at large are generally reluctant to come forward to depose before the court, therefore, the State Vs. Kusum FIR No. 11/12 PS Crime Branch page 21 of 56 prosecution case cannot be doubted for nonjoining of independent witnesses. In State (Govt. of NCT of Delhi) Vs. Sunil & Ors. (2001) I SCC 652 Hon'ble Supreme Court held :
"We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason State Vs. Kusum FIR No. 11/12 PS Crime Branch page 22 of 56 to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
In Ramjee Rai & Ors. Vs. State of Bihar, (2006) 13 SCC 229 the Apex Court held that it is now well settled that what is necessary for proving the prosecution case is not the quantity but the quality of evidence. The Court cannot overlook the changes in value system in the Society. When an offence is committed in a village owing to land, dispute the independent witnesses may not come forward.
To the same effect was the observation of Hon'ble Supreme Court in case of Ram Swaroop Vs. State (Govt. of NCT of Delhi) in Cr. Appl. No. 1327/10 decided by Hon'ble Supreme Court on 21.05.13.
14. SECTION 41(2) NDPS ACT The defence counsels argued that prosecution case is that accused was searched by PW11 Ct. Rajbala and she recovered a cream color cloth bag having zip which she was carrying in State Vs. Kusum FIR No. 11/12 PS Crime Branch page 23 of 56 armpit. They further submitted that PW11 was asked by PW2 SI Sunil to search the accused but SI Sunil was not gazetted officer of Delhi police and hence, he was not empowered officer and being not an empowered officer, he cannot authorize any other official to take the search of any person. They further submitted that even if it is presumed that SI Sunil was a gazetted officer,he could have authorized any official above the rank of constable but Rajbala was only a constable. In support, the Ld. counsels relied upon Union of India Vs. Louis Thomas @ William & Ors., Cr. APP No. 198/2006 decided by Delhi High Court on 26.05.14. Following was held by the Hon'ble High Court: "Under Section 41(2) an officer of the gazetted rank is empowered to delegate his power to a subordinate who is of the rank of peon, sepoy and constable. Section 42(1) allows any officer above the rank of peon sepoy and constable to take action for the enforcement of the NDPS Act in the nature of entry, search, seizure and arrest therefore of wider implications than Section 41(2). Under Section 41(2) an officer who is not of the gazetted officer rank cannot act without authorization, whereas under Section 42(1) an officer above the rank of peon, sepoy and constable can act without any authorization.
12 . Another distinguishing factor between the two
State Vs. Kusum
FIR No. 11/12 PS Crime Branch page 24 of 56
provisions i.e. Section 41(2) and Section 42(1) is that the authorization under Section 41(2) to a subordinate must follow from the officer of a gazetted rank whereas Section 42(1) does not put any restriction that the officer to act should be of a gazetted rank. Officers acting under Section 42(1) have been empowered only to act between sunset and sunrise."
15. PW2 SI Sunil Kumar deposed that he produced the secret informer before Inspr. Rajesh in his office. After satisfying himself, Inspr. Rajesh Kumar passed information further to Addl. DCP Mr. Joy Tirky on phone who directed to conduct the raid immediately. Thereafter, secret information was reduced into writing vide DD no.24 Ex.PW11/A at 6.30pm which was forwarded by Inspr. Rajesh Sharma to senior police officers u/s 42 of NDPS Act. PW1 Rajesh Sharma also corroborated PW2 by deposing that after satisfying himself about secret information, he intimated Addl. DCP Mr. Joy Tirky who instructed to proceed further. He further deposed that SI Sunil Kumar recorded DD No.24 at 6.30pm in that regard and handed over copy to him which he forwarded to senior police officers. PW8 Dr. Joy Tirky, Addl. DCP deposed that Inspr. Rajesh Sharma informed him on telephone on 11.11.12 at 6.30 pm that he had secret information that two sisters namely Kusum and Mala @ Mamta, who were dealing in supply of heroin, would come on 100 foota road on State Vs. Kusum FIR No. 11/12 PS Crime Branch page 25 of 56 that day near Rajkiya Uchttar Vidyalaya (Girls & Boys) to deliver huge quantity of heroin to someone. He directed him to take immediate legal action.
16. As per section 41(2), any empowered officer of the gazetted rank of the police may authorize any officer subordinate to him but superior in rank to a constable, to arrest a person or search a building, conveyance or place whether by day or night or himself arrest such a person or search a building or conveyance or place. As per section 41(3) of the Act, the officer who is so authorized under subsection (2) shall have all the powers of an officer acting u/s 42. Gist of section 41(2) and 41(3) is that gazetted officer of Delhi police may himself or may authorize any subordinate officer to him above the rank of a constable to arrest any person or to search a building, conveyance or place where narcotic substance is believed to have been kept. Vide notification no. F.10(76)/85/Fin.(G) issued by Finance, (General) Department, Delhi on 14.11.85 and published in Delhi Gazette, (Extra), PartIV no. 185 dtd. November 14, 1985, the Administrator of Union territory of Delhi empowered all gazetted officers of following departments of Delhi administration to authorize any person subordinate to him but superior in rank to the peon or constable to arrest a person or search a building, conveyance or place whether by day or by night: State Vs. Kusum FIR No. 11/12 PS Crime Branch page 26 of 56
(i) Revenue department
(ii) Excise department
(iii) Police department.
In the case in hand, PW8 Mr. Joy Tirky is an IPS officer. So, he is gazetted officer of Delhi police as per above notification. Hence, he is empowered officer to authorize any subordinate officer to search a place or conveyance etc.. Admittedly, PW2 Sunil was SI of Delhi police. His rank is above of the constable. So empowered officer was PW8 Addl. DCP Mr. Joy Tirky and he authorized PW2 SI Sunil who was of the rank above constable. Ld. defence counsels are puzzling the matter by arguing that as per prosecution case PW2 acted as an empowered officer who authorized PW11 Ct. Rajbala. Actually situation is otherwise. So, there is no violation of provisions of section 41(2) of NDPS Act.
17. SECTION 42 Ld. defence counsels argued that provisions of section 42 of NDPS Act have been violated on two counts. In the first instance, PW2 Sunil did not record the ground of belief, as per proviso to section 42(1) to search the accused between sunset and sunrise. It is pertinent to mention that accused was searched by 8.30PM and by that time sun had already set. On second count, the accused was searched by PW11 Rajbala who was only a constable but as per section 42(1), the search was to State Vs. Kusum FIR No. 11/12 PS Crime Branch page 27 of 56 be effected by the official above the rank of constable.
18. It has already been held that SI Sunil Kumar was authorized by empowered officer Add. DCP Joy Tirky to search the accused. It was an oral authorization and not in writing. Proviso to section 42(1) NDPS Act applies only when raiding officer is acting without authorization of empowered officer. So, there is no breach of proviso to section 42(1) of the Act. The authorization was not in writing but oral one and the reason is implicit in DD no.24, Ex.PW1/A itself. The secret information was received at 6.15pm and Addl. DCP was intimated before 6.30pm. DD no. 24 was registered at 6.30pm. As per secret information, time of arrival of accused at the stated place was between 7.308.30PM. The information was received in the office of SIT situated in Rohini whereas office of Addl. DCP was situated in Narcotic Cell, Shakarpur, Delhi which is about 15 20kms away from SIT office, Rohini. In Delhi, 20 Kms cannot be covered in not less than one hour in the evening time. So, SI Sunil Kumar did not have sufficient time to get written authorization from Addl. DCP.
19. On the issue of search of accused by Ct. Rajbala, ld.
defence counsels relied upon Chotu Vs. State of Maharashtra, decided by Bombay High court on 29.07.94. In the cited case, the accused was searched by a police constable and the Hon'ble High Court of Bombay held that he was not an authorized State Vs. Kusum FIR No. 11/12 PS Crime Branch page 28 of 56 officer. In Kamal Thakur Vs. State ( Delhi Administration), Cr.M(M) No. 2652 of 1992, decided by Hon'ble High Court of Delhi on 10.11.94, the question was whether head constable of Delhi police was superior in rank to constable? The Hon'ble High Court held that headconstables were the officers superior in rant to constables. In Shanti Lal Vs. State of Rajasthan, 1989(1), Crimes 277, the facts were that the accused was searched by a police constable and investigation was also done by an officer who was not empowered one u/s 42 of the Act. Conviction of the accused was set aside by Rajasthan High Court. To the same effect is State Vs. Jagmala Ram, Cr. Appl No. 120 of 1988 decided by Rajasthan High Court on 29.04.1988. In State Vs. Shakeel Ahmad, 1995, Cr. L. J 300 (J&K), search, seizure and arrest was made by two constables. In that case, the trial court had discharged the accused and State had filed revision petition. The revision petition was dismissed by the High Court of J&K. In Roy V.D.Vs. State of Kerala, 2001 Cr.LJ 165 (SC), the Excise Inspr. searched the accused and recovered ganja from him on 21.11.90. By that time Inspr. was not authorized officer u/s 42(1) NDPS Act and he became authorized officer only on 20.10.1992. Hon'ble Supreme Court held that illicit material recovered on search and seizure made by the Excise Inspr. not authorized u/s 41 & 42 of the Act was per se illegal.
State Vs. Kusum
FIR No. 11/12 PS Crime Branch page 29 of 56
20. Ld. defence counsels also relied upon State of Punjab Vs. Balbir Singh, 1994 Cr.LJ 3702 (SC), in which the apex court held: "26. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect State Vs. Kusum FIR No. 11/12 PS Crime Branch page 30 of 56 of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
(2B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.
(2C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest State Vs. Kusum FIR No. 11/12 PS Crime Branch page 31 of 56 or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total noncompliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.
State Vs. Kusum
FIR No. 11/12 PS Crime Branch page 32 of 56
(4B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to noncompliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with State Vs. Kusum FIR No. 11/12 PS Crime Branch page 33 of 56 the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is noncompliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
21. As per secret information Ex.PW1/A, the accused was to deliver huge consignment of heroin to somebody on 100 foota road near Rajkiya Uchatar Vidyalaya (Girls & Boys), Sector 20, Rohini. PW2, PW3 and PW11, all deposed that recovery from accused was effected near the said school on the road. As per rough site plan Ex.PW9/A also, the recovery was effected at point "A" which is just in front of the school. Recovery place is 100 ft. wide road leading to Sultanpuri bus terminal on one side and sector 21 and 22 Rohini on the other side. These documents and evidence prove that the recovery of heroin was effected from a public place. As per section 43 of NDPS Act, no authorization or warrants or recording of ground of belief is required if recovery has been effected from public place. It was held by hon'ble Supreme Court in State of Punjab Vs. Baldev Singh, 1999, Cr.Law Reporter (SC) 457 that the material difference between the provisions of section 43 and 42 is that whereas State Vs. Kusum FIR No. 11/12 PS Crime Branch page 34 of 56 section 42 requires recording of reasons of beliefs and for taking down information received in writing with regard to the commission of offence before conducting search and seizure, section 43 does not contain any such provision and as such while acting u/s 43 of the Act, the empowered officer has the power of seizure of the article etc., and arrest of a person, as is found to be in possession of any NDPS in a public place where such possession appears to him to be unlawful. So, it is held that due to recovery of heroin from accused on a public place, provisions of section 42 NDPS Act are not applicable and hence, their arises no question of their breach.
22. SECTION 50(i) & 50(4) NDPS ACT Ld. defence counsels argued that it has come in the evidence of PW2 that he prepared notice u/s 50 at 7.35pm whereas accused had arrived there at 8.25pm. It means that everything was ready when the accused arrived there. The police officers did not make accused understand the contents of the notice and wrote refusal reply on their own. The counsels stressed heavily upon the evidence of PW11 who deposed in second examinationinchief recorded on 29.11.13 that first she searched the accused and thereafter, PW2 gave accused notice u/s 50 NDPS Act. The counsels further argued that number of DD has not been mentioned on the notice and it suggests that DD no. 24 i.e., secret information in writing was not in existence State Vs. Kusum FIR No. 11/12 PS Crime Branch page 35 of 56 at the time of preparation of notice. It is next argued that as per section 50(1), accused is to be searched by an officer who is authorized u/s 42 but she was searched by PW11 Rajbala who was merely a constable and hence, not an authorized officer. Section 50(4) has also been violated because the accused was searched in the presence of male police officers in the public place.
23. It s correct that PW2 SI Sunil Kumar deposed that he had prepared notice u/s 50 at 7.35pm. It is also true that prosecution case is that accused had arrived at the spot at 8.25pm. The secret information Ex.PW1/A was to the effect that accused alongwith her sister Mala @ Mamta was to come near school between 7.30 and 8.30pm to deliver heroin in huge quantity. Accused is a notorious criminal. Before the present case, several other cases were registered against her under NDPS Act and in some cases she was convicted also. So, police officers were already aware of the notoriety of the accused and they were taking the secret information as gospel truth. Tract record of Mala @ Mamta, sister of accused, was not history sheeter under NDPS Act. That is why, police officers were sure only about Kusum by that time and that is why they had prepared notice u/s 50 NDPS Act against her even before her arrival.
Examinationinchief of PW11 was recorded twice. In first examinationinchief recorded on 09.09.13, she deposed State Vs. Kusum FIR No. 11/12 PS Crime Branch page 36 of 56 that notice u/s 50 NDPS Act was given to the accused by SI Sunil Kumar but she (PW11) was not aware of its contents. Thereafter, she took the search of the accused in the car. In second examinationinchief recorded on 29.11.13, she deposed that she searched the lady in the car and she was found carrying cream color cloth bag having chain. At that time only she and accused were in the car. She further deposed that she handed over the cloth bag to SI Sunil and thereafter, notice u/s 50 NDPS Act was given to her. The subsequent examinationinchief of PW11, created controversy whether notice was given before or after the search of the accused. On that issue PW11 has contradicted herself with first examinationinchief. Consistent stand of other two recovery witnesses i.e., PW2 SI Sunil and PW3 Ct. Kanwar Pal is that notice was given before search of the accused. One stray line in the second examinationinchief of PW11 cannot wipe out her first examinationinchief and the consistent stand of PW2 and PW3.
24. It is also true that PW3 deposed in crossexamination that it was not told to accused that it was her legal right to be searched before gazetted officer or magistrate. Taking protection of that line, the ld. defence counsels argued that the word legal was not written in the notice and hence, the notice is defective. Argument of the defence counsels on that issue cannot be sustained in view of the testimony of PW2 and PW11 who State Vs. Kusum FIR No. 11/12 PS Crime Branch page 37 of 56 deposed that it was told to the accused that it was her legal right to be searched before gazetted officer or magistrate. Moreover, perusal of original notice Ex.PW2/B shows that accused was told that she had legal right to be searched in the presence of gazetted officer or magistrate.
Non mention of number of DD (secret Information) on the notice does not mean that DD no. 24 was not in existence because DD no.24 Ex.PW11/A shows that it was written at 6.30pm whereas the notice was written at 7.35pm. It has been deposed by PW1 Inspr. Rajesh Sharma that he forwarded the said DD to senior police officers. Senior police officer, i.e., Addl. DCP Mr. Joy Tirky deposed as PW8 that the said DD had reached in his office vide entry no.54 Ex.PW8/D.
25. Ld. defence counsels took the protection of following citations of Hon'ble Bombay High Court:
(i) Iyuma Chinu Devendra Vs. State of Rajasthan, Cr.App. No. 177/93 decided on 11.06.14.
(ii) Veneela Tilak Vs. Sachahasa vs. Asst. Collector of Customs & Ors., Cr.Apl. No.586/1993, decided on 08.06.96.
(iii) Mrs. Temitop Oreluwa Oladiniji Vs. State of Maharashtra, Cr.Appl. No. 374/11 decided on 07.01.13.
The defence counsels argued that in above cases, women accused were searched by lady police officials in the presence of male police officials in the public place and hence, State Vs. Kusum FIR No. 11/12 PS Crime Branch page 38 of 56 the Hon'ble High Court of Bombay held that police had breached the provisions of section 50(4) of NDPS Act.
26. In the case in hand, the accused was searched by PW11 Ct. Rajbala. She deposed in first examinationinchief dtd. 09.09.13 that IO SI Sunil Kumar asked her to take search of the accused. She searched the accused in the car. In subsequent chief dtd. 29.11.13, she deposed that on the instructions of SI Sunil, she apprehended the lady and she was told about the secret information etc. Thereafter, she searched the lady by sitting in the car. At that time she and accused were the only persons in the car. PW2 SI Sunil deposed that accused was searched by Ct. Rajbala inside the car on his instructions. To the same effect is the evidence of PW3 Ct. Kanwar Pal. Testimony of these three witnesses establish that the accused was searched by lady police officer in a secluded place at a time when no male police officer was near them whereas in the cited cases, the accused were searched by lady police officers in the public place in the presence of male police officers. So, facts of the present case and cited cases are not comparable and hence, citations are not applicable.
27. Ld. defence counsels relied upon Ayubkhan Vs. State of Rajasthan, 2002 Cr.LJ 2013 to argue that police has violated section 50(1) NDPS Act because search of the accused was to be conducted by the officer authorized u/s 42 of the Act whereas State Vs. Kusum FIR No. 11/12 PS Crime Branch page 39 of 56 she was searched by Ct. Rajabala who was not an authorized officer. In the cited case, the accused was searched by constable on the instructions of SHO and smack was recovered from him. Hon'ble High Court of Rajasthan allowed the appeal and set aside the conviction.
In the case in hand only three police officials were in the raiding team. They are PW2 Sunil, PW3 Ct. Kanwar Pal and PW11 Ct. Rajbala. So, there was only one female officer in the raiding team. Moreover, it is clear from the IInd examinationin chief of PW11 that except her, no female police official was available on 11.01.12 in the cell. As per section 50(4) of the Act, the accused, if female, cannot be searched by anyone excepting a female. So, mandate of section 50(4) is that female accused should be searched by female necessarily. In the absence of any female police officer above the rank of constable, PW2 was constrained to get the accused searched from PW11 who was merely a constable. He did so under the compulsion of section 50(4) of the Act. Moreover, bare reading of section 50(1) of the act shows that when an officer duly authorized u/s 42 is about to search any person, he shall, if such person so desires, take him/her to the nearest gazetted officer or magistrate of the area. So, requirement of subsection (1) of the section 50 of the Act is that the notice u/s 50 is to be prepared by the empowered officer u/s 42 of the Act and if the accused so requires, the State Vs. Kusum FIR No. 11/12 PS Crime Branch page 40 of 56 empowered officer is further required to take the accused to the nearest gazetted officer or magistrate of the area for search. In the case in hand, it is not in dispute that the notice u/s 50 of the Act was prepared by PW2 SI Sunil Kumar who had been authorized by PW8 Addl. DCP Mr. Joy Tirky. The accused refused her search in the presence of Gazetted officer or magistrate and hence, there was no requirement for PW2 to take her to the gazetted officer or magistrate of the area. So, there is no violation of the section 50(1) of the NDPS Act.
28. SECTION 43 Ld. defence counsels for the accused argued that as per section 43 of the Act, the accused should have been searched by the officer who was authorized one u/s 42 of the Act, if there is no applicability of section 42 of the Act but accused was searched by the Ct. Rajbala who is not authorized officer u/s 42 of the Act.
Raiding team was comprising of three police officers. One of them was SI and two were constables. Two officials were male and one was female. Moreover, it is clear from the IInd examinationinchief of PW11 that except her, no female police official was available on 11.01.12 in the cell. As per section 50(4) of the Act, the lady accused is to be searched mandotarily by a female. At that time no lady police officer above the rank of constable was available with PW2 SIT cell. Juxtaposing sections State Vs. Kusum FIR No. 11/12 PS Crime Branch page 41 of 56 43 and section 50(4) of the Act, the reasonable conclusion is that PW11 was directed by PW2 to search the accused under the compulsion of section 50(4) of the NDPS Act. In these compelling circumstances, PW2 did not commit breach of the section 43 of the Act.
29. SECTION 165(3) CR.PC.
Ld. defence counsels argued that PW2 should have recorded reasons in writing for not conducting the search of the accused personally and also he should have instructed sub ordinate officer in writing to conduct the search but PW2 neither recorded reasons nor instructed PW11 in writing to search the accused.
Section 165 CrPC pertains to the search by SHO or IO. As per subsection (2), SHO or IO should conduct the search personally. If they are unable to conduct search in person, they should record reasons in writing and authorize any person subordinate to them in writing to conduct the search. Sub section (3) comes into play when the SHO or IO are unable to conduct the search in person due to personal disability. It is not applicable in cases where the disability is legal one. In the case in hand, PW2 could not have searched the accused because she was a lady and because as per section 50(4) NDPS Act she was to be searched by another lady. Inability of PW2 to search accused is palpable in section 50(4) NDPS Act. So, there is no State Vs. Kusum FIR No. 11/12 PS Crime Branch page 42 of 56 violation of section 165(3) CrPC. Additionally, provisions of section 165(3) CrPC are not applicable in the personal search of the accused. Subsection (1) makes clear that the section is applicable only in the search of a place.
30. DD NO. 24Ld. defence counsels argued that prosecution case is that secret information was reduced into writing in the form of DD no.24 but that DD has gone unproved because neither its original copy was brought in the court nor scribe was examined.
As per section 74 of Indian Evidence Act, DDs and FIRs are public documents. As per section 77 of that Act, certified copies of the public documents may be produced in proof of the contents of the pubic documents or parts of the pubic documents of which they purport to be copies. DD no.24 Ex.PW1/A has been attested by Addl. DCP. It was recorded by PW2 and has been exhibited in evidence by him. So, defence counsels are not justified to say that scribe has not been examined. Another copy of DD no.24 was sent to the office of Addl. DCP PW8 Mr. Joy Tirky and he proved that copy as Ex.PW8/A. Contents of Ex.PW1/A and Ex.PW8/A are exactly the same. Hence, prosecution has duly proved the secret information into writing vide DD no. 24.
31. TAMPERING OF THE CASE PROPERTY The defence counsels argued that there is possibility State Vs. Kusum FIR No. 11/12 PS Crime Branch page 43 of 56 of tampering of the case property because as per PW7 MHC(M) when case property was deposited with him, the pullandas were bearing one seal each of SK and CRM but as per FSL report Ex.PW9/C, the pullanda sent to FSL was bearing one seal of SK and two seals of CRM.
PW7 had entered the case property details in register no.19 and had made entry no. 1161 Ex.PW7/A. He had handed over pullanda mark A and FSL form to the pullanda carrier on 23.01.12 vide RC Ex.PW7/B. In Ex.PW7/A and Ex.PW7/B, PW7 did not write the number of seals appearing on the pullandas. There is always one MHC(M) in one PS. PS crime branch covers the territory of whole Delhi. Case properties of the cases registered in PS Crime branch are deposited with one MHC(M). So, the MHC(M) is required to deal with case properties of number of cases. He cannot be presumed to know the minute and mathematical details of the case property. Variation is only in respect of seal of CRM. As per PW7, pullandas were bearing one seal of CRM and as per FSL report, pullanda mark A was bearing two seals of CRM. It is mentioned in FSL report itself that seals were found intact and tallied as per forwarding authorities specimen seals i.e., FSL form. That report rules out tampering of the case property. Moreover, it was the duty of the accused to get it clarified from PW4 C.R.Meena whose number of seals are in doubt as to how many seals he had affixed but not State Vs. Kusum FIR No. 11/12 PS Crime Branch page 44 of 56 a single question was asked from him on that issue.
32. FSL FORM NOT SENT TO THE LABORATORY Ld. defence counsels argued that it is not mentioned in the FSL report Ex.PW9/C that FSL form was also sent to it with pullanda Mark A. It has been deposed by PW2 that he sent Ct. Kanwar Pal to PS with rukka and case property with direction to handover rukka to DO and case property to SHO. PW2 Ct. Kanwar Pal deposed that he handed over rukka to duty officer and case property to SHO who affixed his own seal of CRM on pullanda and also wrote case particulars. It has been deposed by PW2 and PW3 that PW3 had taken FSL form also to PS. PW4 C.R.Meena deposed that HC Kanwar Pal came to his office and produced before him three cloth parcels Mark A, B and C, FSL form and carbon copy of seizure memo. He deposited all these articles with the MHC(M). PW7 MHC(M) also deposed that PW4 had deposited with him three pullandas mark A, B, C and FSL form. PW6 HC Jai Singh deposed that on 23.01.12, he took delivery of parcel A and FSL form from MHC(M) vide RC no. 36/21/12 and deposited the same in FSL on the same day. AS per register no.19 Ex.PW7/A, the FSL form was deposited in the malkhana. As per RC Ex.PW7/B, the FSL form was sent to the laboratory on 23.01.12 through PW6. All these facts and documents prove that FSL form was also sent to the lab with State Vs. Kusum FIR No. 11/12 PS Crime Branch page 45 of 56 parcel mark A. There is mention in FSL report Ex.PW9/C that seals on parcel A were tallying with the forwarding authorities specimen seals. The words, "forwarding authorities specimen seals" refer only and only to FSL form. There is nothing on the file to suggest that FSL form was not sent to laboratory with parcel mark A.
33. FSL REPORT NOT GENUINE?
The Ld. defence counsels submitted that FSL report was brought by Ct. Suresh on 20/21/12 and was handed over to the MHC(M) and MHC(M) delivered that report to the IO. The counsels submitted that FSL report was not shown to the MHC(M) if it was the same report which was handed over to him by Ct. Suresh and which he handed over to the IO.
Arguments of the counsels on this issue are quiet astonishing. In FSL report Ex.PW9/C following particulars of the case are mentioned: "FIR no.11/12 PS Crime Branch dtd. 12.1.12 u/s 21 NDPS Act."
FIR Ex.PW10/A was registered by PW10 on receipt of rukka brought by PW3 Ct. Kanwar Pal sent by SI Sunil. It was registered in PS Crime Branch on 12.01.12 u/s 21 NDPS Act against the accused. Particulars of the FIR Ex.PW10/A and FSL report Ex.PW9/C are tallying with each other. What else State Vs. Kusum FIR No. 11/12 PS Crime Branch page 46 of 56 particulars are required by the accused to say that the FSL report pertains to the present case?
34. PREVIOUS ENMITY BETWEEN THE ACCUSED AND FIRST AND SECOND IO?
DW8 Mamta is wife of Vinod Kumar and sister of accused Kusum. She deposed that on 10.11.11 at 9.00 am, when she was going to his factory situated in Vijay Vihar on scooty, a policeman namely Sunil Kumar stopped her scooty and asked if she was Mala. When she replied in affirmative, he called other policemen Harcharan, K.P.Singh and a lady cosntable and they took her and her husband to the office of SIT, Sector 18. Before it, her house had been searched by them. In office, the police officials enquired about her sister Kusum. When she did not tell them about Kusum, she and her husband were beaten and an amount of Rs.1 lac was demanded for their release. Her husband arranged a sum of Rs.60,000/, gave it to the police officials and they were released. Harcharan Singh had threatened them not to open mouth before anybody otherwise she and Kusum would be falsely implicated in NDPS case. She further deposed that her husband was scared and stopped her from filing any complaint. She filed a complaint in the office of Commissioner of Police on 16.01.12 after arrest of her sister accused Kusum.
Version of DW8 is not digestible. If her testimony is believed, she and her husband were abducted from a pubic State Vs. Kusum FIR No. 11/12 PS Crime Branch page 47 of 56 place. Somebody might have informed the local police or PCR van by dialing 100 number. No such PCR form is on the file. The incident with DW8 had taken place on 10.11.11 but she filed complaint on 16.01.12 i.e., after two months and week and also after arrest of her sister. Her complaint Ex.DW9/A is clearly motivated one. It was obligatory on her part to lodge complaint against the police officials at the earliest because she was threatened to be falsely implicated with Kusum in a case for which they were planning long ago.
ABDUCTION OF ACCUSED AND PAYMENT OF GRAFT OF RS.5 LACS?
35. DW6 Pooja is bhabhi of accused Kusum. She deposed that on 11.1.12 at 7.007.30pm, her nanad Kusum was at her (DW6) house when 45 police officials alongwith one lady police official came there and tried to take Kusum forcibly but they raised noise and so she, Kusum, Lata and her daughter Toshi were also abducted to the office of SIT, Sector 18, Rohini. She further deposed that police officials contacted her husband Dinesh on phone and asked for Rs.5 lacs for release. Her niece Pooja i.e., daughter of Kusum alongwith her motherinlaw Rita came to the office of Crime Branch and requested police officials to release their family members but Rs.5 lacs were demanded from them. Pooja etc., left the office and returned at 2.30 3.00am and handed over money to Inspr. Rajesh and ASI State Vs. Kusum FIR No. 11/12 PS Crime Branch page 48 of 56 Harcharan Singh and only after payment, she, her daughter and sister Lata were released but Kusum was kept captive. She came to know next afternoon that Kusum had been falsely implicated.
DW7 Pooja is daughter of accused Kusum. She deposed that her maternal uncle Dinesh i.e., husband of DW6 informed her on phone on 11.01.12 that her mother Kusum, Kusum's bhabhi Pooja, sister Lata and Pooja's daughter had been lifted illegally by police officials from his house at 9.00pm. She alongwith her motherinlaw Rita reached the office of Crime Branch and met ASI Harcharan Singh. He asked her to arrange Rs. 5 lacs for their release. He further instructed her to accompany one Dabbu, who was present in the office, to manage the money. She returned home, collected her gold ornaments and went to one Rahul at Sector11, Rohini with Dabbu and gave gold articles to Rahul who, in turn, gave her Rs.5 lacs. She alongwith her motherinlaw, Rahul and Dabbu went to Crime branch office and gave Rs.5 lacs to ASI Harcharan Singh in the presence of Inspt. Rajesh Sharma. After half an hour, her mami Pooja and other two ladies were released but her mother Kusum was kept confined. When her mother was not released in the morning, she again went to the office of Crimebranch at 6.00 7.00AM and at that time ASI Harcharan told that they had compulsion from senior officers to falsely implicate Kusum and State Vs. Kusum FIR No. 11/12 PS Crime Branch page 49 of 56 that is why she cannot be released. She further deposed that when her mother was produced in the court she filed complaint Ex.DW7/A against police officials.
36. DW6 is claiming that she was also lifted by the police with accused Kusum. Not only she, her daughter Toshi and sister Lata were also taken to the office of crime branch. All this happened at 7.007.30pm on 11.01.12. It is quiet surprising that information of their abduction was not lodged in local PS or PCR (HQ). It is needless to mention that DW6, DW7 and DW8 belong to large families whose members reside within a radius of 2 kms. Several male members would have been present in their house. Had DW6 been abducted with accused, the incident could not have gone unreported. DW7 is claiming that she gave Rs.5 lacs to Inspr. Rajesh Sharma and ASI Harcharan Singh. She had taken that amount from Rahul with the help of Dabbu. Rahul and Dabbu were independent witnesses free from the influence of accused and complainant party. They have not been examined in defence creating suspicion on the story of DW6 and DW7. If DW7 is believed, she reached the PS at 12.30am and amount of Rs.5 lacs was paid at 3.00am. FIR Ex.PW10/A had already been registered at 12.45am and Kusum had been arrested at 1.30am. After registration of FIR and arrest in a commercial quantity NDPS case, there was no occasion for DW7 to give graft money to the police officials.
State Vs. Kusum
FIR No. 11/12 PS Crime Branch page 50 of 56
37. CDRs
Ld. defence counsels argued that PW3 Ct. Kanwar Pal and PW2 SI Sunil Kumar were using mobile phone nos. 9810116803 and 9818210105 respectively. Second IO Harcharan Singh was using mobile no. 9899068631. Vinod husband of DW8 was user of mobile no. 9289561331. Ld. counsels further submitted that location of mobile phone of PW3 was in the area of Khureji Khas near Govindpuri on 11.01.12 at 6.32, 6.34 and 6.43pm and in the area of Kirari Suleman at 08.03, 08.04, 08.05pm. At that time, location of phone of SI Sunil Kumar was also in the area of Kirari Suleman Nagar. Lastly, it is argued that location of mobile phone of ASI Harcharan Singh on 11.01.12 from 10.06pm to 11.45pm was in Ghaziabad and so he cannot be expected to reach the spot at 11.55pm after handing over of further investigation to him.
CAF shows that mobile no. 9810116803 is in the name of Kanwar Pal. Mobile no. 9818210105 is in the name of a lady namely Geeta. Contention of accused party is that Geeta is wife of SI Sunil Kumar and her phone was being used by Sunil Kumar. Mobile no. 9899068631 is in the name of Subhash Jain.
Though, as per CAF, mobile no. 9810116803 is in the name of Kanwar Pal but except name, there is no other particular to suggest that owner is Ct.Kanwar Pal PW3. In the same way there is nothing on the file to say that Geeta is w/o State Vs. Kusum FIR No. 11/12 PS Crime Branch page 51 of 56 PW2 SI Sunil Kumar. Even a single question was not put to PW2 and PW3 about those mobile phone nos. Geeta was not examined in defence. In the absence of proof, this court cannot presume that users of those two members were PW3 and PW2 respectively. Even if it is presumed that those numbers were being used by PW3 and PW2, their location on 11.01.12 at 8.03, 8.04, 8.05 pm was in the area of Kirari Suleman Nagar. That area is only 2.53kms from sector 20, Rohini i.e., from the place of recovery. It is pertinent to mention that raiding team members had reached there by 7.30pm.
In the same way the defence has failed to prove that mobile no. 9899068631 was being used by ASI Harcharan Singh. As per CAF, its owner was Subhash Jain. Mr. Jain has not been examined to explain how this SIM was being used by somebody else.
38. FIR AGAINST ASI HARCHARAN SINGH Last argument of the defence counsels is that the evidence of PW9 ASI Harcharan Singh is of tainted nature because FIR no. 11/14 u/s 384 IPC Ex.PW10/A had been registered against him for demanding money from the accused of an NDPS case.
DW9 Vishram Singh is Ahlmad in the court of Mr.Ashish Aggarwal, Ld. CMM North, Rohini Courts, Delhi. He proved the complaint titled as Hardeep Singh Vs. ASI Harcharan State Vs. Kusum FIR No. 11/12 PS Crime Branch page 52 of 56 Singh. That complaint was sent to PS for registration and investigation of the case consequent to which FIR Ex.DW10/A was registered against Harcharan Singh.
ASI Harcharan Singh is the second IO of the present case. Except arresting the accused, he did nothing. Even if his evidence is ignored, it would not help the case of the accused. Moreover, the FIR against him was registered in the year 2014 whereas the recovery in the present case was effected on 11.01.12. Conduct of ASI Harcharan Singh reflected in FIR no. 11/14 is distantly related to the present case. Also, it cannot be said that he was dishonest at the time of investigation of this case also.
39. CONCLUSION In view of the above discussion, the accused is held guilty u/s 21(C) of NDPS Act. She shall be heard on the point of sentence.
Announced in the open court Today i.e. on 20th day of January, 2015 (UMED SINGH GREWAL) ASJ/SPECIAL JUDGE (NDPS) NORTH:ROHINI COURTS:DELHI State Vs. Kusum FIR No. 11/12 PS Crime Branch page 53 of 56 IN THE COURT OF SHRI M.R. SETHI: ASJ, SPECIAL JUDGE (NDPS) NORTH, ROHINI COURTS, DELHI.
SC No.27/12 FIR No.11/2012U/s 21/61/85 NDPS Act PS Crime Branch State Versus Ms. Kusum ORDER ON SENTENCE:
1 Vide judgment dated 20.1.2015, the convict was found guilty for having committed offence punishable U/s 21 (C) NDPS Act. As per case of the prosecution, the convict was found in possession of 500 gram of heroine on 11.1.2012 at about 8.30 PM on 100 Ft. Road, Sector-20, Rohini. 2 During course of his submissions on quantum of sentence, it was submitted by Ld. PP that the convict had been found in possession of 500 gram heroine which was commercial quantity and it was also submitted that as per NDPS Act Notification, any quantity of heroine which is more than 250 grams is commercial. It was prayed that as the convict is also involved in other cases under NDPS Act, the maximum provided sentence should be imposed upon her.
State Vs. Kusum FIR No. 11/12 PS Crime Branch page 54 of 56 3 Ld. counsel for the convict on the other hand has submitted that convict is a widow and has three daughters and one son out of whom only one daughter is married while other children are unmarried. It was claimed that two of her children were minors. It was further submitted that besides the present case, the convict was facing trial only in one other matter while she had already been acquitted in yet another case and had been sentenced to period already undergone by her in another case. It was claimed that she was not facing trial in any other matter nor had she been convicted in any other matter. On asking of this court, it was submitted that the convict had earlier been convicted in a NDPS Act matter. During course of his submission on quantum of sentence, Ld. counsel has placed reliance on State Vs. Mohd. Yasin [2014 (2) JCC (Narcotics) page 46]; State Vs. Fatima [2014 (2) JCC (Narcotics) page 49] & State Vs. Kuldip Saxena [2014 (2) JCC (Narcotics) page 33]. On basis of the said judicial pronouncements it was sought to be submitted that as percentage of Diacetylmorphine in the recovered contraband was only 36.3 %, the convict cannot be said to have been found in possession of commercial quantity and rather was only in possession of intermediate quantity. It was prayed that in view of family circumstances of the convict, she be dealt with leniently. 4 This court has given thoughtful consideration to arguments advanced and has also perused the judgments relied upon by Ld. counsel for the convict. Provisions of Section 31 NDPS Act have also been perused. 5 As the convict has been found to have been in possession of 500 gram contraband which on being tested was found to contain 36.3 % diacetylmorphine, which translates to 181.5 gram diacetylmorphine, and in view of other facts and circumstances of the case enumerated herein above and position of law as discussed above, this court is of considered opinion that ends of justice would be met in case the convict is sentenced RI seven years and also directed to pay fine Rs.70,000/- in default SI seven months.
State Vs. Kusum
FIR No. 11/12 PS Crime Branch page 55 of 56
6 Fine not deposited. Custody warrant be prepared and it be mentioned
that accused has now been in custody for 2 years, 11 months and 4 days and is entitled to benefit of Section 428 Cr. P.C. 7 Attested copy of order of conviction and order on sentence be given to the convict.
Announced in open court (M.R. SETHI)
on 20.2.2015 ASJ, Special Judge(NDPS)
North, Rohini Courts, Delhi
State Vs. Kusum
FIR No. 11/12 PS Crime Branch page 56 of 56