Delhi District Court
State vs Ajay S/O Late Ram Kumar on 24 September, 2011
IN THE COURT OF MS. SANTOSH SNEHI MANN
SPECIAL JUDGE, NDPS (CENTRAL)
TIS HAZARI COURTS, DELHI
SC No. : 99/2008
FIR No. : 111/2008
U/s : 21 NDPS Act
PS : Narcotics Branch
State Versus Ajay S/o Late Ram Kumar
R/o House no. 4902, Six Tooti Chowk,
Paharganj, Delhi
Date of filing of Charge Sheet : 17.12.2008
Date of taking up matter for the first time : 14.12.2009
Date of conclusion of arguments : 24.09.2011
Date of Judgment : 24.09.2011
Sh. Rajiv Mohan, Ld. Addl. PP for the State.
Ms. Seema Gulati Advocate, Amicus Curie for the accused.
JUDGMENT:
Accused has been chargesheeted and faced trial for committing the offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as NDPS Act) on the allegations that on 18.11.2008 at about 12 O'clock in the noon time near the gate of Srilanka Pilgrim Rest Bhawan, New Delhi, he was found in possession of 510 FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 1 of 21 grams of contraband, identified as Heroine, in contravention to the provisions of the NDPS Act.
2. Brief facts:
a. On 18.11.2008, SI Bhagwan Singh received an information through an informer that a person by the name of Ajay, with previous history of involvement in supplying Smack, would come to supply Smack between 11.45 -
12.15 in the noon near gate of Srilanka Pilgrim Rest Bhawan. He communicated this information to SHO who further gave this information to ACP. Information was recorded in writing and raiding party was constituted by SI Bhagwan Singh including himself, Ct. Satpal and HC Mukesh Singh.
b. Raiding party reached at the disclosed spot taking along the secret informer. On the way efforts were made by SI Bhagwan Singh to join the public persons but nobody agreed. Accused was apprehended on the identification and pointing out of the secret informer.
FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 2 of 21 c. In his body search of the accused, a polythene bag containing 510 grams of brown powdery substance was recovered which tested positive for heroine on the field testing kit. Two samples were drawn and sealed separately in pullandas. Remaining contraband was sealed in another pullanda. Form FSL was filled at the spot and pullandas of the case property was seized which were handed over to SHO at the police station.
d. On the basis of tehrir prepared by SI Bhagwan Singh, FIR was registered at police station and further investigation was assigned to SI Paramjeet Singh who reached at the spot and completed the proceedings. After completion of the investigation chargesheet was filed in the Court.
3. Copies were supplied to the accused. Prima facie offence punishable under section 21 of NDPS Act was found to be made out against him by Ld. Predecessor. Charge was framed to which accused pleaded not guilty and claimed trial. However, FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 3 of 21 during final arguments it was found that quantity of the contraband was wrongly mentioned in the body of the charge and thus charge was amended on 22.09.2011. Amended charge was read over to the accused again to which he pleaded not guilty and claimed trial.
4. Prosecution examined 9 witnesses to prove its case:
PW1 Ct. Harender had received one sample parcel bearing seals of 'BS' and '1SHO NBR' from MHC(M) HC Mahesh Kumar vide RC no. 112/21 on 26.11.2008 and deposited at FSL against the receipt Ex. PW1/A which he handed over to MHC(M).
PW2 HC Mahesh Kumar was on duty as MHC(M) at PS Narcotics Branch on 18.11.2008. At 3.50 pm he had received 3 pullandas alongwith form FSL, all sealed with the seals of 'BS' and '1SHO NBR DELHI' from Inspector M. L Sharma for depositing in the malkhana. He made entry in this regard at serial no. 882 in register no. 19 (copy Ex. PW2/A). On the same day he received personal search articles of the accused from ASI Paramjit Singh for depositing in the malkhana and he made entry to this effect at point A. According to this witness on 26.11.2008 he handed over sealed pullanda MarkA alongwith form FSL to PW1 for depositing at FSL Rohini vide RC no. 112/21 (Ex. PW2/B). He received the receipt of the acknowledgment from PW1 vide Ex. PW1/A. On FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 4 of 21 27.01.2009 he received the parcel MarkA alongwith the result sealed with the seals of 'MS FSL' through Ct. Om Prakash. He deposited the sample parcel in the malkhana and handed over the result to IO. He made entry to this effect in the register no. 19 at pointB. PW4 HC Om Prakash produced the record from the office of ACP Narcotics Branch. As per record produced, on 18.11.2008, DD no. 11A dated 18.11.2008 (Ex. PW4/A) was received in the office of ACP Narcotics Branch vide diary no. 1592, which was placed before ACP M. S Dabas who had put his signatures at pointA. On 19.11.2008 two reports under section 57 of NDPS Act (Ex. PW4/B and Ex. PW4/C) were received in the office vide diary no. 1598 and 1599 which were also placed before the ACP who signed on them at pointA. Witness produced the original diary and filed the photocopy of the entries 1592,1598 and 1599 as Ex. PW4/D. PW5 HC Mahesh Chand was the duty officer at PS Narcotics Branch on 18.11.2008, who at about 11.00 am had recorded the DD 11A (carbon copy Ex. PW5/A), at about 11.15 am recorded DD no. 12A (true copy Ex. PW5/B), at about 3.30 pm recorded DD no. 17A (true copy Ex. PW5/C), at about 4.10 FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 5 of 21 pm recorded DD no. 18A (true copy Ex. PW5/D), at about 5.00 pm recorded DD no. 19A (true copy Ex. PW5/E) and at about 8.50 pm recorded DD no. 23A (true copy Ex. PW5/F). According to this witness at about 3.30 pm he received a rukka sent by SI Bhagwan Singh through Ct. Satpal on the basis of which he recorded FIR vide Ex. PW5/G and made endorsement on the rukka vide Ex. PW5/H and thereafter sent the copy of FIR alongwith rukka to ASI Paramjeet Singh to whom further investigation was assigned.
PW3 Ct. Satpal, PW6 SI Bhagwan Singh and PW7 HC Mukesh Singh are the witnesses of search, recovery and seizure.
PW9 Inspector M. L Sharma was the SHO PS Narcotics Branch on the date of incident.
PW8 SI Paramjeet Singh is the investigating officer (IO).
5. All the incriminating evidence on record was put to the accused. He was examined in the Court and his statement was recorded under section 313 Cr. P.C without oath. Accused denied the incriminating evidence against him about recovery of the contraband from his possession on the alleged date, time and FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 6 of 21 place. He claimed that he was apprehended by the police from New Delhi Railway Station where he was consuming Smack. He claimed to be falsely implicated by the police because he had refused to work as a police informer to assist the police in arresting drug peddlers. However, he did not wish to lead evidence in defence.
6. I have heard Mr. Rajiv Mohan, Ld. Addl. PP for the State and Ms. Seema Gulati Advocate, Amicus Curie for the accused. I have carefully gone through the record.
7. The three witnesses of recovery examined by the prosecution are PW3 Ct. Satpal, PW6 SI Bhagwan Singh and PW7 HC Mukesh Singh. As deposed by PW6, on 18.11.2008 at about 10.30 am when he was present at police station Narcotics Branch, an informer came and informed him that a person by the name of Ajay R/o Paharganj with the history of involvement in case under a NDPS Act, was involved in supplying the Smack in the area of New Delhi Railway Station. As per the information given by the informer the said person was to come that day to deliver Smack near gate Srilankan Pilgrim Bhawan between 11.45 am to 12.15 pm. After satisfying himself about the information, PW6 produced the informer before SHO Inspector M.L Sharma at about FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 7 of 21 10.45 am who inquired from the informer and after satisfying himself, communicated this information telephonically to ACP Narcotics Branch who instructed to conduct raid. At about 11.00 am information was reduced into writing by this witness vide DD no. 11A (copy Ex. PW4/A) and was sent to senior officers through SHO. The raiding party was prepared by PW6 including himself, HC Mukesh Singh (PW7) and Ct. Satpal (PW3), which left the police station taking along the secret informer through Government vehicle, at 11.15 am vide DD no. 12A (Copy Ex. PW5/B).
8. According to PW6, on the way he asked four passengers at the bus stop, Pusa Road and five passers by after reaching at the spot in the front of reservation office, New Delhi Railway Station to join the police party but none agreed. The police party formed a picket at about 11.50 am. At about 11.55 am accused was seen coming from Paharganj side who was identified by the informer. Accused stood in front of the gate of Srilanka Pilgrim Rest Bhawan for about 34 minutes in wait of somebody and was apprehended at about 12 O'clock by the police party when he started walking away from the spot. According to PW6, he introduced the raiding party to the accused and told him about FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 8 of 21 the secret information with the police. Accused was also told about his legal right to give his search in the presence of Gazetted Officer or the Magistrate. Accused was also offered to search the police party and the Government vehicle, but he refused to avail the offer. A written notice under section 50 of NDPS Act was given to the accused vide Ex. PW3/A and his refusal was recorded vide Ex. PW3/B. The contents of the notice were explained to the accused.
9. PW6 deposed that, in the body search of the accused a transparent polythene containing "mudmela" powdery substance was recovered from the right side dubb below the shirt of the accused. The substance tested positive for heroine on the field testing kit and total weight of contraband was found to be 510 grams out of which two samples of 5 grams each were taken and kept in separate polythenes which were converted into 2 separate pullandas and were given MarkA and MarkB. The remaining heroine was kept as it is in the polythene and was converted into a separate pullanda MarkC. The witness has deposed that form FSL was filled at the spot and he affixed his seal of 'BS' on all the 3 pullandas and form FSL. Thereafter he handed over his seal to HC Mukesh Singh (PW7) and seized the pullandas of the case FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 9 of 21 property alongwith FSL form vide memo Ex. PW3/C.
10. According to PW6 he prepared the tehrir Ex. PW6/A which he handed over to PW3 Ct. Satpal alongwith three sealed pullandas, form FSL and copy of seizure memo with direction to hand over the tehrir to the duty officer and other articles to the SHO. PW3 is stated to have left the spot in the Government vehicle at 3.00 pm.
11. PW3 Ct. Satpal and PW7 HC Mukesh Singh have deposed on the lines of PW6 about they being the members of the raiding party constituted by PW6 pursuant to a secret information, apprehension of the accused on the identification of the secret informer and recovery of 510 grams contraband, identified as Heroine, from the possession of the accused.
12. Ld. Amicus Curie argued that testimony of the police witnesses cannot be believed to hold the accused guilty in the absence of corroboration by independent public witness.
13. The issue of nonjoining of public witnesses has been considered by the superior courts in number of cases. It is the settled legal position is that ordinarily independent public witnesses should be joined in the proceedings to corroborate testimony of police witnesses about the search, recovery and FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 10 of 21 seizure of contraband under the NDPS Act, but if the public witnesses refuse to join the proceedings despite efforts made by the police, testimony of the police witnesses cannot be discarded merely for the reason that there is no corroboration from independent witnesses. Testimony of police witnesses can be relied for recording finding of guilt of the accused without corroboration by independent public witness, if their testimony is found credible and trustworthy. {Reference to Apex Court's decision in "Ajmer Singh V/s State of Haryana, 2010(1) Drugs Cases (Narcotics) 99" and decision of High Court of Delhi in "Ramesh Kumar Rajput V/s State of NCT of Delhi, 2009(1) Drugs Cases (Narcotics) 289" and "Gopal V/s State, 2009(1) Drugs Cases (Narcotics) 301"}.
14. PW6 was the head of the raiding party. It has come in his deposition that he made efforts to join the public witnesses in the proceedings on couple of occasions but none agreed. PW3 and PW7 have corroborated him on this fact. Though these witnesses have admitted that railway employees or shopkeepers were not asked to join the proceedings, but the courts are not oblivious that public persons are generally reluctant to join the police proceedings, untill and unless there are compelling FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 11 of 21 circumstances. Evidence of the police witnesses leave no doubt that due efforts were made to join the public persons at different places and therefore no adverse inference can be drawn merely on the ground that there are no independent witnesses of search, recovery and seizure.
15. Keeping in view the stringent provisions of the NDPS Act and severity of the punishment in the statute, various safeguards have been provided in the act itself to rule out false implications. Relevant provision of the safeguards in the present context are in sections 42, 43 and 50 of NDPS Act. Sections 42 and 43 provides power and procedure for search, seizure and arrest for the purposes of offences under the NDPS Act. While section 42 of NDPS Act provides the procedure for search, seizure and arrest in any building, conveyance or enclosed place, section 43 of NDPS Act provides the procedure for the above purposes in any public place. According to these provisions only an empowered officer can act and conduct search, seizure and arrest. Section 50 of NDPS Act lays down the conditions under which search of a person shall be conducted, which includes search by a duly authorized person and if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 12 of 21 purposes of search.
16. As per the evidence on record, search was conducted by PW6 SI Bhagwan Singh in the presence of PW3 and PW7. Vide government notification no. F.10(76)/85 Fin.(G), dated 14.11.1985, PW6 is an empowered officer to take action under section 42 and 43 of NDPS Act, by virtue of his rank and thus was duly authorized to conduct search of the accused. When there is prior information with authorized officer that any narcotics drug or psychotropic substance or controlled substance in respect of which an offence under the NDPS Act has been committed and as per the information, the substance is kept in any building, conveyance or enclosed place, the information is required to be reduced into writing before proceedings to take action, a copy of which is required to be sent by him to the immediate superior official within 72 hours. However, reducing the information into writing and conveying it to the senior officer is not a precondition when the seizure and the arrest is made by the empowered officer at a public place. (Reference to "State of Punjab Vs. Baldev Singh, (1999) 6 Supreme Court Cases 172"; "M. Prabhulal V/s Assistant Director, Directorate of Revenue Intelligence, (2003) 8 Supreme Court Cases 449" and "Karnail Singh V/s State of FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 13 of 21 Haryana, (2009) 8 Supreme Court Cases 539").
17. The oral and documentary evidence on record shows that information about the accused was specific by his name and the place, which is a public place. Therefore, since recovery, seizure and arrest was to be conducted at public place, section 43 of NDPS Act was applicable which do not require recording the information into writing and its communication to the immediate superior official. Despite the fact that PW6 was not required to record the information into writing, as abundant precaution, he reduced this information into writing vide DD no. 11A, (Ex. PW4/A) which was forwarded to the ACP Narcotic Branch by SHO. PW9 Inspector M. L Sharma who has corroborated PW6 on this fact. The receipt of this information in the office of ACP has been proved by the record produced by PW4 HC Om Prakash, according to which this information was received vide diary no. 1592, (Ex. PW4/D). Therefore, the oral and documentary evidence on record shows due compliance of sections 42 and 43 of NDPS Act.
18. With respect to compliance of section 50 of NDPS Act, testimony of PW6 corroborated by PW3 and PW7 has remained unshaken that prior to search of the accused, he was duly FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 14 of 21 informed about his legal right to exercise the option to give his search before a Gazetted Officer or the Metropolitan Magistrate. Testimony of PW6 on this fact is supported by the document Ex. PW3/A, which is a written notice given to the accused under section 50 of NDPS Act which clearly shows that accused was informed about prior information with the police about Smack in his possession, necessity of his search and his legal right to give search in the presence of a Gazetted Officer or the Magistrate. The notice bears signatures of the accused and there is nothing on record to disbelieve service of written notice under section 50 of NDPS Act to the accused. It has specifically come in the testimony of all the recovery witnesses that accused had refused to avail this offer which was recorded vide Ex. PW3/B. Nothing has come in the crossexamination of these witnesses to create any doubt about their testimony about this aspect. Therefore, the evidence on record shows that conditions laid down in section 50 of NDPS Act were duly followed by PW6, an authorized and empowered officer, before conducting body search of the accused.
19. Testimony of PW6 has already been taken note of in the earlier part of the judgment about recovery of a transparent polythene bag containing powdery substance from the right side FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 15 of 21 dubb of the track pant worn by the accused under his shirt. Nothing has come in his crossexamination to shake his testimony about recovery which has been corroborated by PW3 and PW7, other two members of the police party, who also withstood the crossexamination. As per deposition of the three police witnesses corroborated by the seizure memo Ex. PW3/C, it is proved that 510 grams contraband was recovered from the possession of the accused, which tested positive for heroine at the spot on the field testing kit.
20. Evidence of PW3, PW6 and PW7 is consistent on the fact that two samples of 5 grams each were taken out from the recovered contraband at the spot, which were converted into two separate pullandas, MarkA and MarkB. Remaining contraband was converted into a third pullanda, MarkC and all the pullandas were sealed by PW6 with his seal of 'BS' at the spot. It is also established by the deposition of PW3, PW6 and PW7 that FSL form was filled at the spot by PW6 on which he had put his seal impression 'BS'.
21. According to PW6 he had prepared tehrir Ex. PW6/A, which was written by PW7 HC Mukesh Singh. This tehrir was taken by PW3 to the police station for registration of FIR alongwith FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 16 of 21 sealed pullandas of the case property, FSL form and copy of seizure memo. PW3 and PW7 have also corroborated them. Testimony of these witnesses on above facts has remained unshaken.
22. According to PW3 he handed over the tehrir (Ex. PW6/A) to the duty officer at the police station. He has been corroborated by PW5 HC Mukesh Chand working as Duty Officer at the police station on this fact, who had recorded FIR Ex. PW5/G on the basis of the tehrir, on which he made endorsement Ex. PW5/H.
23. PW3 further deposed that he handed over the three sealed pullandas alongwith form FSL, copy of seizure memo to SHO Inspector M. L Sharma in his office, who after checking them affixed his seal of '1 SHO NBR Delhi' on them and mentioned the FIR no. He has been corroborated by PW9 Inspector M. L Sharma on the above fact, who deposed that after affixing his own seal on the sealed pullandas of the case property and form FSL, he handed over them to MHC(M) for depositing in the malkhana with respect to which entries were made by MHC(M) in register no. 19 vide Ex. PW2/A. PW9 identified his signatures at pointX in this entry and deposed further that he lodged DD in this regard, FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 17 of 21 which is DD no. 18A dated 18.11.2008 proved as Ex. PW5/D.
24. Deposition of case property in the malkhana by SHO PW9 is corroborated by PW2 HC Mahesh Kumar, who was the mHC(M) on the said date. Recording of a DD by PW9 on this fact is corroborated by PW5 HC Mahesh Chand, who was the duty officer at the relevant time. Nothing has come in the cross examination of any of the witnesses to create any doubt on these facts. Moreover testimony of PW2 and PW5 has gone unassailed on the above facts and testimony of PW9 is not unshaken in the crossexamination. Therefore, it is established on record that "three" sealed pullandas of the case property were given in the charge of SHO PW9 in the sealed condition alongwith form FSL and carbon copy of seizure memo, which were deposited in the malkhana by PW9 after affixing his seal on them. Oral testimony of the witnesses about deposition of the sealed pullandas of the case property alongwith form FSL in the malkhana is corroborated by the documentary evidence i.e malkhana record (Ex. PW2/A). The compliance of section 55 of NDPS Act is duly proved on record.
25. It is noteworthy that there is inconsistency in the record produced by PW2 vide Ex. PW2/A about the number of sealed FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 18 of 21 pullandas deposited where number of pullandas deposited is mentioned as "two" whereas as per the prosecution story number of pullandas deposited was "three". However benefit of this inconsistency would not go to the accused as PW2, who had written the record, was not given the opportunity to explain the record. More so, when his deposition in the Court that "three" pullandas were deposited in the malkhana has gone unassailed. Further, testimony of all the witnesses who handled the case property at different stages of the investigation is consistent on the fact that case property comprised of "three" sealed pullandas.
26. After registration of FIR, investigation was assigned to PW8 SI Paramjeet Singh who reached at the spot and conducted further proceedings. His testimony about preparation of the site plan Ex. PW6/B, arrest of the accused vide memo Ex. PW6/C and his personal search vide memo Ex. PW6/D has gone unrebutted. Evidence of PW6 and PW8 SI Paramjeet Singh has gone unassailed on the fact that separate reports about recovery of contraband and arrest of the accused under section 57 of NDPS Act were sent by them to the senior officers vide Ex. PW4/B and Ex. PW4/C respectively.
27. Testimony of PW1 has gone unrebutted on the fact that FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 19 of 21 sample pullanda bearing the seals of 'BS' and '1 SHO NBR Delhi' alongwith form FSL was received by him from MHC(M) HC Mahesh Kumar (PW2) for depositing at FSL Rohini, which he deposited in the laboratory against the receipt Ex. PW1/A. Besides unassailed testimony of PW1 on the above facts, he is corroborated by PW2 whose testimony has also gone unassailed. PW1 and PW2 have been corroborated by the documentary evidence Ex. PW2/A, according to which a sealed pullanda MarkA bearing seals of 'BS' and '1 SHO NBR Delhi' was handed over to PW1 by PW2 alongwith form FSL on 26.22.2008 for depositing at FSL vide RC no. 112/21 (Ex. PW2/B).
28. The accused was identified by the police witnesses of recovery and they also identified the contraband produced in the sealed pullanda MarkC (Ex. P1) as a heroine recovered from the possession of the accused, contents of sealed pullandas MarkA (Ex. P3) as the remnant sample and the sealed pullanda MarkB bearing the seals of 'BS' and '1 SHO NBR Delhi' as second sample pullanda.
29. According to PW8 sample was sent to FSL for examination and report to this effect was received vide Ex. PX, which is the report of Dr. Madhulika Sharma, Assistant Director FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 20 of 21 (Chemistry), Forensic Science Laboratory which is perse admissible under section 293 Cr. P. C. As per this report, the sealed parcel MarkA, bearing the seals of 'BS' and '1 SHO NBR Delhi', which were intact and tallied with the specimen seals as per forwarding letter (FSL form), was received, which was found containing approximately 5 grams brown colour powdery material in a polythene. On the basis of chemical tests, chromatography and instrumental methods, the substance was found containing 14.30 % "diacetylmorphine" (chemical name of heroine). Accordingly, the total weight of the "diacetylmorphine" in 510 grams contraband recovered from the accused is 72.93 grams. As per entry no. 56 of the notification no. S.O. 1055(E) dated 19.10.2001, the recovered quantity of heroine is more than small but less than the commercial quantity.
30. In view of the above observation, discussion and findings on the basis of evidence on record, accused is held guilty for committing the offence punishable under section 21(b) of the NDPS Act.
Announced in the open Court (Santosh Snehi Mann) 24th of September, 2011 Special Judge, NDPS (Central) Tis Hazari Courts, Delhi FIR No. 111/2008; PS Narcotics Branch; State V/s. Ajay Page No. 21 of 21