Delhi District Court
State vs . Baldev Singh @ Sabir Ali & Ors. Sc No. ... on 11 August, 2016
State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10
IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS
PATIALA HOUSE COURTS: NEW DELHI
SC No. 22/10
ID No. 02403R0312742010
FIR No. 03/10
PS Special Cell (Kotwali)
u/s 20/21/24 of NDPS Act
489B & C/120B IPC
14 Foreigner Act
State Vs. 1. Baldev Singh @ Sabir Ali
S/o Late Sh. Thakur Singh
R/o H.No. U108, Gali No.5,
Budh Bazaar Road, Arvindpuri,
Gautam Vihar, Ghonda, Delhi.
2. Sanaullah Meer
S/o Sh. Gulam Khadir Meer
R/o VillageItchgaon, PS and PO and
Distt. Badgaon, Srinagar, J & K.
3. Janail Singh @ Sarpanch
S/o Sh. Gurbax Singh
R/o Village Jogewala, PS Makhu,
TehsilZira, Distt. Ferozpur, Punjab.
4. Javed Ahmed Bhat
S/o Sh. Gulam Ahmed Bhat
R/o Aram Masjid, PS Khaniyar,
Srinagar, J & K.
5. Arbaz @ Raju @ Pintu
S/o Late Sh. Babu Khan
R/o H.No. U108, Gali No.5,
Budh Bazaar Road, Arvindpuri,
Gautam Vihar, Ghonda, Delhi.
FIR No. 03/10 PS Special Cell Page 1 of 41
State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10
6. Anees Khan @ Guddu
S/o Sh. Aziz Ahmed Khan
R/o H.No. U108, Gali No.5,
Budh Bazaar Road, Arvindpuri,
Gautam Vihar, Ghonda, Delhi.
Date of Institution : 02.11.2010
Judgment reserved on : 14.05.2016
Date of pronouncement : 11.08.2016
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21, 20, 23 r.w.s 29 and 25 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act'), u/s 489B, 489C and 120 B of the Indian Panel Code ( hereinafter referred to as 'IPC') and u/s 14 Foreigners Act.
2. Briefly stated the allegations made against the accused persons that can be culled out from the contents of the chargesheet and the documents filed with the same are as follows:
(a) On 2/1/2010 SI Dina Moni, Meghalaya Police had lodged a complaint at PS Kotwali, Delhi to the effect that three Pakistani nationals Abdul Razzaq, Mohd. Saddique and Rafakat Ali who had been brought from Lampur Seva Sadan (FRRO detention centre) on 1/1/2010 to Guru Nanak Eye Hospital for their medical examination had escaped while they were being taken back on the said date.
(b) The investigation of the said complaint was handed over to SI Rakesh Kumar as per the direction of SHO, PS Kotwali, Insp. P.S. Chehal. SI Rakesh Kumar along with the complainant SI Dina Moni visited the spot of escape i.e. Esplanade Road, Chandni Chowk. Photographs of the three absconding FIR No. 03/10 PS Special Cell Page 2 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 Pakistani nationals were circulated and intimation to this effect was sent to FRRO for LOC.
(c) On 3/1/2010 the investigation was transferred to SI Ramesh Sharma, Special Cell, NR for investigation. SI Ramesh Sharma along with Insp.
Brahamjeet, Insp. R.K. Singh, HC Bharat Singh and HC Suresh went to Lampur Seva Sadan and from there they collected the photocopies of the detention orders of the said Pakistani nationals issued by DCP Special Cell. IO had also seized visitor register of year 2009 which was maintained by Meghalaya Police. The entries in the said register made on 28/9/2009 to 02/01/2010 revealed that two persons namely, Anees Khan and Arbaz Khan had met Abdul Razzaq and Saleem on 29/12/2009 and 30/12/2009. During interrogation it was revealed by SI Dina Moni that before absconding on 1/1/2010, the three Pakistani national persons had after going to Gurunanak Eye Hospital were first taken to Jama Masjid and then one of them i.e. Abdul Razzak was taken by him to Seelampur near Jaffarbad to collect money from someone.
(d) Based on the aforementioned investigation Baldev Singh, Anees Khan and Arbaz were called in the Special Cell office and inquiries were made from them. During interrogation it was revealed that it was Baldev Singh who had given money to Abdul Razzaq at Seelampur before he had absconded.
(e) Though after interrogating all of them were set free, the officials of the Special Cell decided to keep their mobile numbers 9711815116, 9999147338 and 9654122059 (numbers of Baldev), 9582172158 and 9811806568 (numbers of Anees) and 9555691682 and 9811374034 (number of Arbaz) under surveillance.
FIR No. 03/10 PS Special Cell Page 3 of 41State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 (f) During the surveillance of the aforesaid numbers it was revealed that
they were in the business of drugs and fake currency notes. The said surveillance also revealed that three Pakistani national who had absconded were known to them and that they had even given money to them. In the said surveillance it was also revealed that Baldev Singh was in touch with one Khundewala on mobile number 9999147338 in which he had talked about the international smuggling of drugs.
(g) Based on the surveillance of the aforementioned mobiles, notices were served upon Baldev Singh, Anees Khan @ Guddu and Arbaz but they did not appear in Special Cell and hence informers were deployed.
(h) On 4/9/2010 at about 8:15 a.m. SI Ramesh Sharma, IO received a secret information through telephone that Baldev and Sannaullah Mir would come between 8:30 a.m. and 9:00 a.m. near Anukampa Banquet Hall, Mangol Puri Industrial area for delivery of charas and smack and after delivering charas there they would go to Vikas Puri area for delivery of smack.
(i) SI Ramesh Sharma telephonically informed ACP about the information received. ACP directed for the conduct of a raid. SI Ramesh Sharma lodged the information in DD No. 2 in this regard and as per the directions of the ACP, a raiding team comprising SI Ramesh Sharma, SI Pankaj Kumar, HC Suresh and other staff left the office of Special Cell and reached Anukampa Banquet Hall, Mangolpuri Industrial area at about 08:45 a.m.
(j) On reaching the sot, IO requested 34 public passersby to join the raiding party out of which one Moolchand s/o Mohan had agreed to join the raiding party. IO and the members of the raiding team positioned themselves at strategic points and started waiting. At about 8:50 a.m. one person was seen coming on foot towards Mangolpuri side, carrying a pink colour polythene bag.
FIR No. 03/10 PS Special Cell Page 4 of 41State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 The person was stopped and on asking he revealed his name Sanaullah Mir. In the meanwhile, raiding party noticed that Baldev Singh was standing 25 steps away and was parking his scooter bearing no. DL 3 SR 9403 Chetak. He was also stopped with the help of raiding team members.
(k) The IO introduced himself and the members of the raiding team to the said persons and apprised them about the information within his knowledge. Both were then informed about their legal rights and were issued notices u/s 50 of NDPS Act and were made to understand that they have a legal right to be searched before a Magistrate or a Gazetted Officer. Both the accused refused to exercise the said rights and accused Sanaullah wrote his refusal in his own handwriting however the refusal of accused Baldev was written by SI Pankaj Kumar.
(l) Thereafter, SI Ramesh Sharma conducted the search of the accused Sanaullah Mir and the pink colour polythene which was being held by this accused. On opening, the pink polythene was found containing three packets wrapped in yellow colour tape. Two packets were smaller than the third one. The big packet was then weighed and on weighing its weight came out to be 1.1 kg. The smaller packets were then weighed and on weighing their weight came out to be 475 grams each. All the said packets were smelling of charas. On opening, all the three packets were found containing black stick like (batti numa) substance.
(m) Two samples of 33 sticks (total six) were taken out from the big packet and their weight came out to be 28 grams each i.e. each 3 stick sample weighed 28 grams. The samples were kept in two small plastic dibbis and was given mark S1 and S2. The remaining contents of the big packet were given mark 1. Two samples of 25 grams each were also taken out from each of the small FIR No. 03/10 PS Special Cell Page 5 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 packet and given mark S3, S4, S5 and S6. The small packets were given sl. no. 2 and 3. The pullandas mark 1, 2 and 3 were converted into a cloth pullanda with polythene and sealed with the seal of RK. Form FSL was filled up. Seizure memo was prepared.
(n) Thereafter accused Baldev on his own informed the raiding party that there is contraband in the dickey of his scooter also and he took out one transparent polythene. The said polythene on opening was found to contain light brown substance. On weighing, its weight came out to be one kg. The said powder was smelling and looking like heroin.
(o) Two samples of 5 grams each were taken out from the recovered smack/heroin put into small plastic container (dibbi) and thereafter, converted into pullandas with the help of doctor/medicated tape and given mark S7 and S8. The remaining smack/heroin was put into polythene out of which it was recovered and converted into pullanda with the help of cloth and was given Sl. no. 4. All the pullandas were sealed by the IO with the seal of RK. Form FSL was filled up. Seal of RK was also affixed on the same. Seizure memo was prepared. Seal after use was handed over to public witness Moolchand.
(p) Accused persons were then arrested. Scooter was also taken into possession. After completion of the investigation at the spot IO along with accused Baldev and Sanaullah Mir and other members of the raiding team reached the PS Special Cell Lodhi Colony where both the accused persons and case property were produced before the SHO and SHO affixed his seal on all the pullandas and documents and deposited the same with MHCM.
(q) Accused Baldev and Sanaullah Mir were interrogated separately upon which accused Baldev Singh had disclosed that he was in the business of drugs and fake currency notes along with his associates Anees, Arbaz, Jarnail and FIR No. 03/10 PS Special Cell Page 6 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 Sanaullah and that Jarnail Singh @ Sarpanch was to come on 4/9/2010 at about 04:00 p.m. to meet him at bypass G.T. Karnal road and that he would be having heroin and fake currency notes in his possession. He had also disclosed that on an earlier occasion Jarnail Singh had delivered about Rs. 2 lakhs in fake currency notes to him and that out of the same he had handed over Rs. 50,000/ to Sanaullah, Rs.25,000/ to Anis and Rs. 20,000/ to Arbaz. Accused Sanaullah had disclosed that he along with Baldev and the other associates including Javed were in the business of fake currency notes and drugs/heroin and that he had handed over Rs. 50,000/ fake currency to Javed and that he could lead the police to the residence of Javed.
(r) Thereafter in pursuance of disclosure statement of accused Baldev Singh, SI Ramesh Sharma along with accused persons and raiding staff reached G.T. Karnal Road. On the way at Samaipur Badli bus stand, SI Ramesh Sharma requested 23 passersby to join the proceedings but none agreed. On reaching the spot at about 4:00 p.m. accused Baldev Singh pointed out towards a person who was standing on the other side of the road and SI Ramesh Sharma along with SI Pankaj Kumar and HC Suresh crossed the road and apprehended that person. On inquiry the said person revealed his name as Jarnail Singh.
(s) The IO introduced himself and the members of the raiding team to the Jarnail Singh and apprised him about the disclosure given by Baldev Singh and Sanaullah Mir and also that his search is required to be taken and that he can take search of the members of the raiding team before his search is conducted however, he refused to take search of raiding party. Thereafter accused Jarnail Singh took out one bundle fake currency notes each from both side of pockets of the pant worn by him. IO checked both the bundles (100 notes of Rs. 500/ FIR No. 03/10 PS Special Cell Page 7 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 denomination) and after finding it fake kept the same in transparent polythene and converted into pullanda with the help of doctor tape and sealed the same with the seal of PK. Seizure memo was prepared. Accused Jarnail Singh was arrested. One mobile phone, bearing no. 9814338816, make Nokia having SIM card of Spice was recovered from the possession of accused Jarnail Singh which was also seized.
(t) Thereafter in pursuance of disclosure statement of accused Sanaullah Mir, SI Ramesh Sharma along with accused persons i.e. Baldev Singh, Sanaullah Mir and Jarnail Singh and raiding staff reached the house of Javed i.e. at ground floor of H.No. 7, Bazar Lane, Bhogal. On reaching the the house accused Javed was found present in his house. The IO introduced himself and the members of the raiding team to Javed and apprised him about the facts of the case and disclosure given by Baldev Singh and Sanaullah Mir and also that his search is required to be taken and that he can take search of the members of the raiding team before his search is conducted however, he refused to take search of raiding party. Thereafter accused Javed took out one bundle of 100 note of Rs. 500 denomination under the pillow of his bed. The abovesaid notes were put in transparent plastic paper and sealed with the seal of PK. Seizure memo was prepared. Accused Javed was arrested. One mobile phone, bearing no. bearing no. 9718832430, make Nokia was recovered from the possession of accused Javed which was also seized.
(u) Thereafter, SI Ramesh Sharma along with accused persons and raiding staff reached the house of Arbaz i.e. H.No. U108, Gali no. 5, Arvind Nagar, Gautam Vihar, Gonda where accused Baldev pointed out towards accused Arbaz. The IO introduced himself and the members of the raiding team to Arbaz and apprised him about the facts of the case and also that his search is FIR No. 03/10 PS Special Cell Page 8 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 required to be taken and that he can take search of the members of the raiding team before his search is conducted however, he refused to take search of raiding party. Thereafter, accused Arbaz took out a pant which was hanging behind the door and took out 40 notes of Rs.500/ denomination from the said pant and handed over to IO. The abovesaid notes were put in transparent paper polythene and sealed with the seal of PK. Seizure memo was prepared. Accused Arbaz was arrested. One mobile phone, bearing no. bearing no. 9555691682 was recovered from the possession of accused Arbaz which was also seized.
(v) Thereafter, SI Ramesh Sharma along with accused persons and raiding staff went to first floor of the same premises where accused Baldev Singh pointed out towards accused Anis @ Guddu. The IO introduced himself and the members of the raiding team to Anis @ Guddu and apprised him about the facts of the case and also that his search is required to be taken and that he can take search of the members of the raiding team before his search is conducted however, he refused to take search of raiding party. Thereafter, accused Anis took out from the drawer of the TV cabinet, 50 notes of denomination of Rs.500/ and handed over the same to IO. The abovesaid notes were put in transparent paper polythene and sealed with the seal of PK. Seizure memo was prepared. Accused Anils @ Guddu was arrested. One mobile phone, bearing no. 9582172158 was recovered from the possession of accused Anis @ Guddu which was also seized. Accused Baldev also produced a mobile phone bearing no. 9711815116 from a room opposite to the room from where accused Anis had been arrested.
(w) Thereafter SI Ramesh Sharma along with accused persons and other staff reached at Sheeshe Wali Masjid, Yamuna Vihar where accused Sanaullah FIR No. 03/10 PS Special Cell Page 9 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 Mir produced his mobile phone black cherry bearing no. 9582784151 and same was also seized. Thereafter raiding team along with the accused persons went to PS Special Cell and had deposited the fake currency notes, mobile phones and personal search articles in the malkhana at PS Special Cell, Lodhi Colony.
(x) An application was also filed for taking the voice samples of all the accused persons and after getting permission voice samples of all the accused persons were taken. Statement of witnesses u/s 161 Cr.PC were recorded and report u/s 57 NDPS Act was prepared. During the course of investigation, call detail records of the mobile numbers recovered from the accused persons were obtained.
(y) Thereafter the sample pullandas S1, S3, S5 and S7 and pullandas of currency notes were sent to FSL, Rohini and after receiving the reports from FSL that the currency notes recovered were counterfeit and the sample pullandas S1, S3, S5 gave positive test for cannabinoids including tetrahydrocannabinol and sample S7 was found to contain paracetamol, caffeine, phenobarbital and diacetylmorphine and the percentage of diacetylmorphine and phernobarbital were found to be 4.5% and 7.2% respectively, the present chargesheet was filed
3. On the basis of material placed on record, charges were framed by the Ld. Predecessor of this court vide order dated 07.01.2011. All the accused persons were charged for the offences u/s 29 r.w.s. 21, 20 and 23 of the NDPS Act and accused Baldev Singh was separately charged for the offence u/s 21(c), 25A of the NDPS Act and accused Sanaullah Mir was separately charged for the offence of u/s 20 (b) (ii) (C) of the NDPS Act. All the accused persons were also charged for the offences u/s 489 C r.w.s. 120B IPC. All the accused persons pleaded not guilty to the said charges and claimed trial.
FIR No. 03/10 PS Special Cell Page 10 of 41State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10
4. In order to prove its case against the accused persons, the prosecution has examined 39 witnesses in all.
5. PW8 SI Ramesh Sharma, PW17 HC Bharat Singh and PW22 HC Suresh are the members of the team who reached Lampur Seva Sadan where they met Ct. Dharmender Kumar and collected from him the photocopies of the detention orders of the Pakistani nationals issued by DCP Special Cell Sh. Alok Kumar. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet.
Thereafter on receipt of secret information PW8 along with PW26 SI Pankaj Kumar, PW22 HC Suresh and other staff reached Anukampa Banquet Hall, Mangolpuri Industrial area and accused Baldev Singh and Sanaullah Mir were arrested. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, DD No. 2, in which the secret information was reduced has been exhibited as Ex.PW16/A. The notices issued to the accused Baldev Singh and Sanaullah Mir u/s 50 of the NDPS Act have been exhibited as Ex.PW26/C and Ex.PW26/A respectively and the refusal written by accused persons on the said notices have been exhibited as ExPW26/D and ExPW26/B respectively. The seizure memo prepared with respect to the recovery from both the accused persons have been exhibited as ExPW26/F and Ex.PW26/E respectively. The arrest memos and personal search memos of both the accused persons have been exhibited as ExPW26/I, ExPW26/H, ExPW26/J and ExPW26/K respectively. The seizure memo prepared with respect to Scooter has been exhibited as ExPW26/G. Disclosure statements of accused Baldev singh and Sanaullah Mir have been exhibited as ExPW22/A and ExPW22/B respectively. Thereafter pursuant to disclosure made by accused Baldev Singh and Sanaullah FIR No. 03/10 PS Special Cell Page 11 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 Mir, he along with PW22 and PW26 and other police officials had reached railway flyover, outer ring road G.T. Karnal Road from where accused Jarnail Singh was apprehended on the pointing of accused Baldev Singh and recovery of fake currency notes was effected from the possession of accused Jarnail Singh. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. Seizure memo of fake currency notes has been exhibited as ExPW22/C. Arrest memo, personal search memo and disclosure statement of accused Jarnail Singh have been exhibited as ExPW22/B, ExPW22/F and ExPW22/G respectively. Mobile phone of accused Jarnail Singh was taken into possession vide memo ExPW22/D.
6. Thereafter PW8 along with the staff had reached the house of accused Javed i.e. No. 7, Bazar Lane, Bhogal from where recovery of fake currency notes (Rs. 50,000/) was effected. Seizure memo of fake currency notes has been exhibited as ExPW22/H. Mobile phone of accused Javed was taken into possession vide memo ExPW22/I. Arrest memo, personal search memo and disclosure statement of accused Javed have been exhibited as ExPW22/J, ExPW22/K and ExPW22/L respectively.
7. Thereafter PW8 along with the staff had reached a house i.e. U198, Gali no. 5, Arvind Nagar, Gautam Vihar, Gonda from where recovery of fake currency notes (Rs. 20,000/) was effected from accused Arbaz and fake currency notes (Rs. 25,000/) were effected from accused Anis. Seizure memos of fake currency notes recovered from accused Arbaz and Anis have been exhibited as ExPW22/M and ExPW22/O respectively. Mobile phone of accused Arbaz and Anis were taken into possession vide memos ExPW22/N and ExPW22/P respectively. Arrest memos, personal search memos and disclosure statement of accused Arbaz and Anil have been exhibited as ExPW22/Q, ExPW22/S, FIR No. 03/10 PS Special Cell Page 12 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 ExPW22/R, ExPW22/T ExPW22/U and ExPW22/V respectively. Mobile phone of accused Baldev was also taken into possession vide memo ExPW22/W. Mobile phone of accused Sanaullah Mir was also taken into possession vide memo ExPW22/X. Special Report u/s 57 of NDPS Act has been exhibited as ExPW8/G. Applications for taking voice samples of accused persons have been exhibited as ExPW8/F, ExPW8/H and ExPW8/ J. Supplementary statements of accused Baldev Singh, Anis and Jarnail Singh have been exhibited as ExPW22/Z, ExPW22/Y and ExPW22/Z1 respectively. Notices issued to Nodal Officers have been duly exhibited.
8. PW 1 Sh. Dharmender has inter alia deposed that he is running the business of Tours and Travels by the name of Mahi Tours and Travels at village Lampur, Narela and that Maruti van no. DL3C AG 9687 belongs to him and is run on hire. This witness has further deposed that 01/01/2010 the driver of the said vehicle was PW2 Rohit who on his instructions had taken the abovesaid maruti van to Sewa Sadan, Lampur where one SI Deena Moni along with three other persons had taken the van to Guru Nanak Hospital at about 9:00 a.m. PW2 Sh. Rohit has inter alia deposed that after leaving them in the hospital he had parked his van in the hospital parking and around 12 or 12:30 p.m. they had all returned back and on the instructions of SI Deena Moni he had taken them to Jama Masjid as they wanted to take food. This witness has further deposed that they all returned back at about 3:00 p.m. after taking food and two of them waited on the road side near the parking while two other i.e. SI Deena Moni and other went away. After sometime these two persons also left the parking area. PW2 has stated that he kept waiting for them for quite long time and then at about 6:00 p.m. he called up his employer PW1 Dharmender and thereafter PW1 Dharmender contacted the SI and at about 10:00 p.m. and came FIR No. 03/10 PS Special Cell Page 13 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 in the santro car accompanied by three police officials and two other Pakistani nationals and asked PW2 to follow them to Jafrabad, Seelampur near STD booth where SI Dina Moni was waiting there and met them and told them that those three people who had come with him in the morning had escaped. Seizure memo with respect to seizing of one register ExPY and bill book ExPX has been exhibited as ExPW1/A.
9. PW3 Ct. Dharmender Kumar has inter alia deposed that on 3/1/2010 he was on duty as care taker at the Lampur Centre from 8:00 a.m. to next day 8:00 a.m. and on that day some police officers from Special Cell came at the centre and on the directions of the officials he handed over copy of the roznamcha, copy of movement register, arrival register, visitor register 2009 of the Meghalaya police force, out and in register and photocopies of the detention orders of the Pakistani nationals. These documents have been exhibited as ExPW3/A to ExPW3/G.
10. PW4 Sh. Raj Bhatt and PW5 Sh. Sharvan Kumar public witnesses who are stated to have witnessed the voice recording proceedings of accused Baldev Singh, Anish Khan and Jarnail Singh, have supported the version put forward by the State and have identified their signatures on the seizure memo ExPW4/A of voice recording cassette.
11. PW6 Sh. Ganesh Aggarwal has deposed that he had let out two room sets on rent to Bilal Ahmad and Javed and Bilal Ahamd used to reside in the said house. This witness has identified the accused Javed in the court and proved original lease agreement, police verification forms, photocopy of driving license and election card of accused Javed as ExPW6/B to ExPW6/E which was given to him by Bilal Ahmad at the time of taking the premises on rent.
FIR No. 03/10 PS Special Cell Page 14 of 41State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10
12. PW7 Joginder Singh and PW15 Sh. Rana Pratap Singh public witnesses who are stated to have witnessed the voice recording proceedings of accused Arbaz, Javed Ahmad and Sanaullah Mir, have supported the version put forward by the State and have identified their signatures on the seizure memo ExPW7/A of voice recording cassette.
13. PW9 Mohd. Mustakeen was the owner of house situated at Gali no. 5, 15 near Sheeshe Wali Masjid, North Ghonda in which Sanaullah Mir was resided as a tenant. According to this witness Baldev Singh who was known to him had introduced Sanaullah Mir to him and on his request he had given the top floor of his house to Sanaullah at a rent of Rs.1500/. This witness has identified the accused in the court and proved copy of ICard of accused Sanaullah as ExPW9/B which was given to him by the accused at the time of taking the premises on rent which was seized by police vide seizure memo ExPW9/A. This witness has further deposed that on 25/9/2010, son of Sanaullah Mir and son of Baldev had come and vacated the said room.
14. PW10 Sh. Sachin Singhal has deposed that he was not using the mobile number 9999147338 at any point of time and though the photocopy of the driving license ExPW10/B is his driving license but the CAF ExPW10/A was not deposited by him with the concerned mobile company nor are the details therein filled in his handwriting or he had never used the said sim number and someone has misused his photograph and the copy of the driving license.
15. PW11 Sh. Vimal Jain Statistical Assistant, Guru Nanak Eye Centre has deposed that as per record of OPD register of the year 2010 vide entry no. 109, 110 and 111 patients Rafakat, Saddique and Abdul Razak came to the hospital and they were referred to room number 113, 114 and 116 respectively. The relevant entries has been exhibited as ExPW11/A. FIR No. 03/10 PS Special Cell Page 15 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10
16. PW12 Sh. Ranbir Singh Record Keeper State Transport Office, Sheikh Sarai has deposed that that per record the scooter bearing no. DL 3 SR 9403 make Bajaj Chetak is in the name of Sher Singh s/o Jiley Singh r/o 10/06, Tunda Nagar, New Delhi 94. The certificate issued by Motor Vehicle Inspector at STA, Sheikh Sarai to this effect has been exhibited as ExPW12/A.
17. PW13 ASI Rajpal, duty officer has interalia deposed that he was the duty officer on 2/1/2010 and that on this date he had received the rukka of the present case through SI Rakesh Kumar and had registered the FIR, Ex.PW13/A u/s 14 Foreigners Act and had made his endorsement Ex.PW13/B thereon.
18. PW14 Sh. Rajiv Sahini has deposed that he was not using the mobile number 9811374034 at any point of time and the CAF ExPW14/A was not deposited by him with the concerned mobile company nor are the details therein filled in his handwriting and someone had misused his ID card ExPW14/B.
19. PW16 ASI Bhoop Singh, duty officer has interalia deposed that he was the duty officer on 4/9/2010 and that on this date SI Ramesh Sharma had lodged DD no.2 in the rojnamcha pertaining to secret information received by him. DD no. 2 has been exhibited as ExPW16/A.
20. PW18 SI Gyan Chand, SO to ACP, Special Cell, NR. As per the record produced by this witness, on 4/9/2010 DD no. 2 regarding secret information and on 5/9/2010 reports u/s 57 NDPS Act regarding seizure and arrest of accused persons prepared by SI Ramesh Sharma were received in the office of ACP and that the said report was put before ACP. The reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW18/A to Ex.PW18/D.
21. PW19 HC Amit Kumar has deposed that on 14/09/2010 on the directions of IO, he had gone to PS Special Cell, Lodhi Colony and had taken four plastic FIR No. 03/10 PS Special Cell Page 16 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 containers along with FSL form and four sealed pullandas along with FSL form from MHC(M) and had got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M). According to this witness, on 29/09/2010 on the directions of IO, he had again gone to PS Special Cell, Lodhi Colony and had taken six pullandas containing audio cassettes along with FSL form from MHC(M) and had got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M).
22. PW20 SI Rakesh Kumar has deposed that on 2/1/2010 he had received the complaint of SI Dina Moni and had made his endorsement on the same, Ex.PW20/B. Complaint has been exhibited as ExPW20/A. According to this witness on the directions of SHO he along with SI Dina Moni had visited the spot i.e. Esplande Road, Chandni chowk and inspected the site. Site plan has been exhibited as ExPW20/C.
23. PW21 ASI M. Baxla Malkhana Incharge has inter alia deposed about the deposit of the case property/jamatalashi articles with the malkhana on various dates and has also proved the relevant entries thereof in the malkhana register.
24. PW23 HC Rajesh Kumar has proved the letters dated 30/4/2009, 21/10/2009 and 24/10/2009 vide which the Pak nationals namely Rafakat Ali, Mohd. Sadiq and Abdul Razzak who had been released from the Central Jail, Tihar were restricted movements of Sewa Sadan Lampur till the completion of their deportation formalities. Photocopies of the detention orders of the said Pakistani nationals issued by DCP Special Cell Sh. Alok Kumar, notification issued by Sh. Deshraj, US , Delhi Administration and amendment order of August 1970 passed by the US (Passport Delhi Administration) have been exhibited as ExPW23/A to ExPW23/E. FIR No. 03/10 PS Special Cell Page 17 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10
25. PW24 SI Ranbir Singh has deposed on 27/9/2010 he got downloaded through ASI Heera Lal, six copies of CDs containing conversation calls and given them mark Q1 to Q6 (ExR3, ExR6, ExR9, ExR12, ExR15 and ExR18) and had deposited all the six pullandas containing CDs along with form FSL in the malkhana. Seizure memo has been exhibited as ExPW24/A. Seal after use was handed over to PW34. Form FSL was filled. According to this witness he had also obtained transcript of the conversation of accused in the said CD by ASI Heera Lal. Transcript has been exhibited as ExPW34/A.
26. PW25 SI Suresh Kumar has proved the office record pertaining to conviction of accused Baldev Singh in case FIR no. 133/85 u/s 16/1/14 Excise Act, PS Alipur. Record has been exhibited as ExPW25/A.
27. PW27 Sh. Vijender Singh, SSO Documents, FSL, Rohini has deposed that has inter alia deposed that on 14.09.2010, he had received the four packets containing 390 currency notes each in denomination of Rs.500/ (mark X1 to X390) and after examination, opined that the same were counterfeit in nature. The report prepared by the said expert in this respect has been exhibited as Ex.PW27/A. The enlarged print of currency notes were given mark X323 has been exhibited as ExPW27/B and ExPW27/C.
28. PW28 Dr. Madhulika Sharma, Deputy Director, FSL, Rohini has proved the report prepared by her with respect to the analysis conducted by her of the samples sent to FSL. The said report has been exhibited as Ex. PW28/A
29. PW29 Sh. Inspector Rajender Sehrawat has interalia deposed that on 4/9/2010, he was posted as SHO, PS Special Cell and on that day at about 12:40 PM, SI Ramesh Sharma had produced before him accused Baldev Singh and Sanaullah Mir and twelve pullandas, two FSL Forms and two carbon copies of seizure memos. As per the deposition of this witness, he had put his FIR No. 03/10 PS Special Cell Page 18 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 initials and his seal 'RSS' on all the pullandas and the FSL forms and then got the said property deposited in the Malkhana.
30. PW30 Sh. Pawan Singhal, Nodal Officer, Idea Cellular Ltd. has proved on record the call details pertaining to mobile number 9718832430 for the period 26/7/2010 to 3/9/2010 and the same has been exhibited as Ex.PW30/C. The said witness has also produced the customer application forms and copy of identity proof with respect to the said number Ex.PW30/A and ExPW30/B respectively. According to this witness as per CAF mobile number was subscribed in the name of Javed Gul s/o Gulam Mohd. Bhat.
31. PW31 Sh. Anuj Bhatia, Nodal Officer Vodafone Mobile Services proved the CDR ExPW31/R2 of mobile no. 9711815116, CDR ExPW31/R5 of mobile number 9999147338, CDR ExPW31/R8 of mobile number 9654122059, CDR ExPW31/R11 of mobile phone no. 9582784151, CDR ExPW31/R14 of mobile phone no. 9582172158, CDR ExPW31/R17 of mobile phone no. 9811374034, CDR ExPW31/R20 of mobile no. 9811806568 and CDR ExPW31/R23 of mobile no. 9654498763 w.e.f. 1/1/2010 to 5/10/2010.
32. PW32 Sh. M.N. Vijayan, Nodal Officer, Idea Cellular Ltd. has proved on record the call details pertaining to mobile number 9268475273 for the period 1/1/2010 to 2/1/2010 and the same has been exhibited as Ex.PW32/C. The said witness has also produced the customer application forms and copy of identity proof with respect to the said number Ex.PW32/A and ExPW32/B respectively. According to this witness as per CAF mobile number was subscribed in the name of Rohit Kumar s/o Sh. Rajender Kumar.
33. PW33 Sh. Surender Kumar, Nodal Officer, Idea Cellular Ltd. has proved on record the call details pertaining to mobile number 9814338816 for the period 1/8/2011 to 22/8/2011 and the same has been exhibited as Ex.PW33/C. The FIR No. 03/10 PS Special Cell Page 19 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 said witness has also produced the customer application forms and copy of identity proof with respect to the said number Ex.PW33/A and ExPW33/B respectively. According to this witness as per CAF mobile number was subscribed in the name of Randeep Singh s/o Raghvir.
34. PW34 ASI Heera Lal has deposed that since January, 2010 some mobile phones and IMEI numbers were intercepted in their office and he along with SI Ramesh Sharma had heard the intercepted mobile conversation made by accused persons during the period January to September, 2010 and after hearing the said conversations, SI Ramesh Sahrma instructed him to prepare separate folders for each of the calls made by accused persons and he then saved the calls made by accused persons separately in six CDs Q1 to Q6. Seizure memo of the same has been exhibited as ExPW14/A. Transcript of the calls has been exhibited as ExPW34/A. According to this witness, on 28/10/2010 he got prepared the six DVD cassettes containing intercepted calls of all accused persons. Seizure memo has been exhibited as ExPW34/B.
35. PW35 D.K. Mishra, UDC Home Department has proved records i.e. order of Secretary (Home) Sh. Arvind Ray and Principal Secretary (Home) Sh. G.S. Pattnaik, Govt. of NCT of Delhi by which they had given permission for interception of the mobiles of accused persons. The said orders have been exhibited as ExPW35/A1 to A4 and ExPW35/A5 to A11.
36. PW36 Sh. Shishir Malhotra, Nodal Officer, Aircell Ltd. has proved on record the call details pertaining to mobile number 9716902062 for the period 1/1/2010 to 2/1/2010, CAF and two ID proofs and the same has been exhibited as Ex.PW36/C. According to this witness as per CAF mobile number was subscribed in the name of Krunson Nengminza Sangma.
FIR No. 03/10 PS Special Cell Page 20 of 41State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10
37. PW37 Sh. P.M. Muralidharen has proved the records i.e. orders issued by Sh. Gopal K. Pillai, the then Secretary to Govt. of India, Ministry of Home Affairs, Delhi dated 13.01.2010, 05.02.2010, 16.02.2010, 18.02.2010, 02.03.2010, 17.03.2010, 08.07.2010, 06.08.2010 and 26.08.2010 by which he had given permission for interception of the telephone numbers. The said orders have been exhibited as ExPW37/A1 to ExPW37/A10.
38. PW38 Col. A.K. Sachdeva, Nodal Officer, Reliance Communication Ltd. has proved on record the call details pertaining to mobile number 9555691682 for the period 1/1/2010 to 2/1/2010 and the same has been exhibited as Ex.PW38/B. The said witness has also produced the customer application forms with respect to the said number Ex.PW38/A. According to this witness as per CAF mobile number was subscribed in the name of Sunil A. S/o Sh. Bawhah Singh.
39. PW39 Sh. C.P. Singh, Assistant Director (Physics), FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the voice samples sent to FSL. The said report has been exhibited as Ex. PW39/A. As per his report the voice in the six CDs Q1 to Q6 matches with the voice samples given by accused persons.
40. The aforesaid incriminating evidence was put to the accused persons and their statements were recorded u/s 313 Cr.PC. All the accused persons in their statements u/s 313 Cr.PC have taken a defence that they have been falsely implicated in this case and that no contraband/counterfeit currency notes had been recovered from their possession or at their instance at any point of time. In particular accused Baldev Singh has stated that he originally belongs to Punjab and shifted to Delhi in 1984 due to political turmoil and terrorist activities in Punjab. In Delhi he started selling garments from a patri in FIR No. 03/10 PS Special Cell Page 21 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 Chandni Chowk but in the year 1984 the police officials of Maurice Nagar falsely arrested him on a mere suspicion that he was a terrorist. When their enquiry into his antecedents did not reveal anything incriminating against him, they planted contraband on him and falsely implicated him in a case under the Excise Act. After spending three years in the jail in the said case, he came out and started working as a driver for a transport company. During the said services a vehicle which he was driving was intercepted by DRI and contraband was recovered from the same. Though he had no knowledge and had nothing to do with the contraband concealed in the said vehicle, he was arrested by DRI and also subsequently convicted in the said case and again spent more than 10 years in judicial custody. After coming out from the jail after undergoing the sentence in the said case he again started his life afresh and started doing the business of pannis/plastics and started living with his children, his wife, his brother in law, Anees and Arbaz, the son of his second brother in law Babu Khan, in his house H.No. U108, Gali no. 5, Arvind Nagar, Gautam Vihar, Gonda. He suspects that somebody in his locality informed the local police officials about his previous records and that is why the officials of Special Cell came to his residence in the first week of January, 2010 and forcibly picked him, his son and Anees and Arbaz and took them to PS and started inquiring about same Pakistani nationals who had absconded. Though they were released from the PS after the police officials found nothing incriminating against them, on 3/9/2010 again he, Anees and Arbaz were forcibly picked up from their residence at 1:30 a.m. in the night and brought to the office of Special cell, Rohini and falsely implicated in this case.
41. Accused Saniullah has stated that he originally belongs to Kashmir and initially used to make carpets by hand till 2007 however he was not making much FIR No. 03/10 PS Special Cell Page 22 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 money and the political conditions in Kashmir had also worsened and at that time, at the instance of one Gulam Hassan, he came to Delhi and started working with him at his hotel as a cook and also sometimes used to sit at his shawls shop. It is at the said shop that he saw Javed for the first time. Javed was also in the business of Shawls and used to occasionally come to the shop of Gulam Hassan in relation to the said business and sometimes on behalf of Gulam Hassan he used to speak to Javed in respect of the shawl transactions that they used to do. On 03.09.2010, somebody started knocking his door and when he opened 45 persons barged in his tenanted room and he was forcibly taken away in a vehicle to some place which he later came to know was the office of Special Cell, Rohini and he was falsely implicated in this case.
42. Accused Jarnail Singh has stated that he belongs to village Jogewala, Distt. Ferozpur, Punjab and his occupation is that of a farmer. He along with his family and the family of his deceased brother Gurnam Singh reside in the same house. In the last week of August, 2010 while he was away to fields for work, one police official came to their house and started inquiring about his deceased brother Gurnam Singh who had expired in 200708. On 2/9/2010 he had gone to the office of Delhi Police in Rohini to deposit the death certificate of his brother Gurnam Singh and there he was apprehended in the present case and falsely implicated.
43. Accused Javed has stated that he is a businessman and originally belongs to Kashmir where he does the business of shawls. In the year 2010 in about June July he had come to Delhi along with his partner and had rented a premises A 7, Ground Floor, Bazar Lane, Bhogal. He used to take the samples of his shawls to his various customers to Delhi to show them and one of his customers was one Gulam Ahmad who had a shop in Jama Masjid, Gate no . 1.
FIR No. 03/10 PS Special Cell Page 23 of 41State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 One of the accused persons in the present case Sanaullah used to work as a servant in the said shop of Gulam Hassan and it is there that he had seen him sometime. Sanaullah also used to talk to him on the telephone on some occasions on behalf of Gulam Hassan. On 3/9/2010, on Friday at about 3:00 p.m. he had gone to the shop of Gulam Hassan to collect a cheque of Rs. 60,000/ from him as he had to pay the said amount to him against the purchase of shawls made by him (Gulam Hassan) from him. On the said date Gulam Hassan handed over the cheque for the said amount which he got encashed from Jammu & Kashmir Bank, Chawri Bazar and when he returned to the shop of the said Gulam Hassan, 23 persons caught hold of him and he was forcibly made to sit in a vehicle and he was brought to the office of Special Cell, Rohini where he was falsely implicated in this case.
44. Accused Arbaz has stated that since his childhood he used to reside alongwith his phuphaji, Sh. Baldev and his family in Delhi, for his mother had deserted his father when he was very young and since the said time his grandmother (dadi) has looked after him. His grandmother also used to reside with his bua and phuphaji only in their house at U108, Gali no.5, Budh Bazaar Road, Arvindpuri, Gautam Vihar, Ghonda, Delhi and therefore he was also brought up at the said house. His chacha Anees also used to stay in the same house. In the year 2010 he was studying in 11th class in Sarvodaya Vidyalaya, Yamuna Vihar. In the first week of January, 2010 some police officials of Special Cell forcibly picked him, his uncles Anees and Baldev and the son of his phupha, one Shewaal and the father in law of his uncle Anees from their residence at about 02.00 AM and took all of them to their office at Rohini and then separately interrogated them. They had also made him sign some registers and blank papers at that time. Though all of them were set free after interrogation, FIR No. 03/10 PS Special Cell Page 24 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 he was again picked up with his uncles Anees and Baldev on 03.09.2010 at about 01.30 AM and again forcibly brought them to the office of Special Cell. This time they slapped and gave him beatings and made him sign many blank documents. He categorically states that no fake currency was recovered from his possession on any date and that he was never involved in the business of fake currency or in the illicit trafficking of charas with his uncles.
45. Accused Anis Khan has stated that since his childhood he used to reside alongwith his sister Shahana and his jijaji, Sh. Baldev and his family in their house at U108, Gali no.5, Budh Bazaar Road, Arvindpuri, Gautam Vihar, Ghonda, Delhi. His mother also used to reside in the same house. He have studied upto 8th class only and thereafter started his own business of supplying socks to vendors who used to have their small shops on patris. He used to purchase defective socks from various factories in Bawana, etc, repair them and then sell them to the patri walas. In the first week of January, 2010 some police officials of Special Cell forcibly picked him, Baldev, his nephews Arbaz and Shewaal from their residence at about 01.3002.00 AM and took all of them to their office at Rohini and then separately interrogated them. They had also made him sign some registers and blank papers at that time. Though all of them were set free after interrogation, he was again picked up with his nephew Arbaz Baldev on 03.09.2010 at about 01.3002.00 AM and again forcibly brought them to the office of Special Cell. This time they slapped and gave him beatings and made him sign many blank documents. He categorically states that no fake currency was recovered from his possession on any date and that he was never involved in the business of fake currency or in the illicit trafficking of charas with his relatives.
FIR No. 03/10 PS Special Cell Page 25 of 41State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10
46. In support of their defence, these accused persons have produced 1 defence witness.
47. DW1 Alijaan has inter alia deposed that Baldev used to reside in a house opposite to his house before his arrest in this case. He knows him since the year 198182. On 3/9/2010, during the period of Ramzan he had returned to his home after offering namaz at about 12:30 at night when he noticed a crowd gathered outside the house of accused Baldev. He saw that Baldev, Guddu and Arbaz were being held by 56 persons in civil cloths and they were being taken away. When he asked them who they were, they told him that they are police officials and they are taking Baldev, Guddu and Arbaz to a PS as their house is frequented by Pakistanis. He told them that he has never seen a Pakistani visiting the house of Baldev but they did not pay heed and told him that if he has any problem he should come to the thana. They then took away the accused persons in a vehicle that was parked outside their gali. He had not seen the police officials and the accused persons holding any articles in their possession. Baldev has a joint family and Guddu and Arbaz used to reside with him only.
48. Written submissions on behalf of all the accused persons have been filed. I have heard Sh. F. Haq, Ld. Counsel for accused Baldev Singh, Sanaullah Mir, Arbaz and Anees Khan, Sh. Arun Rathi, Ld. Counsel for accused Jarnail Singh and Javed Ahmed and Sh. R.K. Bhati, Ld. APP for the State and I have carefully perused the entire record.
49. Ld. Defence counsels have advanced following main arguments:
(i) that there is non compliance of section 42(1) of NDPS Act as the factum of recording of secret information itself is highly doubtful because it is nowhere mentioned in the said secret information Ex.PW16/A by which FIR No. 03/10 PS Special Cell Page 26 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 telephone number SI Ramesh Sharma had received the said secret call in his office.
(ii) that there is non compliance of section 42(2) of the NDPS Act because the document pertaining to verification of information and the order of ACP directing SI Ramesh Sharma to take necessary action is not containing the time of information given to the ACP and hence there is a possibility that it was not furnished to the ACP within time or that it was not furnished to ACP at any point of time.
(iii) that no sincere effort was made by the investigating agency to invite any public person to join the proceeding of recovery of contraband from the accused persons on 04.09.2010. Sh. Mool Chand who is allegedly the independent witness of the proceeding has not been examined in court and hence the case of the prosecution remains uncorroborated.
(iv) that the version of the prosecution that Baldev Singh was at 25 steps away from the place of arrest of accused Sanaullah Mir is itself unbelievable because Baldev Singh would not wait for the arrival of the raiding team to come and search him and this in itself speaks volume about the fake story of the prosecution.
(v) that the entire case of the prosecution is the result of the followup of the investigation carried out on absconding of three Pakistani nationals and although as per the case of the prosecution accused Baldev, Arbaz and Anees were called for interrogation by the police but the date of their calling in the office is not purposely mentioned. It is the natural human behaviour that if they had come to know that they were under surveillance of police they would not commit any offence during that period. Further it is not clear whether their statement was recorded by the police u/s 161 Cr.PC or not when they were FIR No. 03/10 PS Special Cell Page 27 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 called for interrogation and the same have not been placed on record and hence the intention of IO looks malafide.
(vi) that as per the case Baldev Singh had talked to one Mr. Khundewala on mobile no. 9999147338 in which he had talked about international smuggling of drug and the transcript of the same is Ex.PW8/C but the entire investigation is silent as to who was the said Khundewala.
(vii) that there was delay in sending the pullandas of contraband as well as fake currency to FSL for examination. Although the recovery was effected on 04.09.2010 but the sample of the contraband and the fake currency were sent to FSL on 14.09.2010 and there is no explanation for this delay and hence it makes the case of the prosecution doubtful.
(viii) that there is no worthwhile evidence to prove that the accused persons were trafficking in narcotic drugs or fake Indian currency notes under a conspiracy and that the fake Indian currency notes as well as the contraband were planted on the accused persons.
50. Ld. APP for the State has submitted that the depositions of the prosecution witnesses have more or less remained unrebutted with respect to the search and seizure proceedings. It is further submitted that there is complete compliance of the mandatory provisions of section 42 and section 50 NDPS Act and also other directory provisions and hence his contention therefore is that the prosecution has been able to prove its case beyond reasonable doubt.
51. As far as the recovery of contraband from the accused persons is concerned, it is relevant here to state that there are two recoveries. Both are dated 04.09.2010 when accused Sanaullah Mir was found in possession of 2.050 kg of charas and accused Baldev Singh was found in possession of 1 Kg of heroin near Anukampa Banquet Hall, Mangol Puri Industrial Area, Delhi. The FIR No. 03/10 PS Special Cell Page 28 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 members of the raiding team i.e. PW8 SI Ramesh Sharma, PW22 HC Suresh and PW26 SI Pankaj Kumar have described the search and seizure proceedings in detail. The case property and the samples were sealed at the spot and were taken into possession vide recovery memos Ex.PW26/F and PW26/E respectively.
52. The fact that after seizure, the case property was kept in safe custody has been proved by PW29 Inspector R.S. Sehrawat who was posted as SHO PS Special Cell at the relevant time. He has proved that he put his seal of RSS on the pullandas and the FSL form when they were produced before him and he got the same deposited with malkhana alongwith carbon copy of seizure memo. His statement is corroborated by PW21 ASI M. Baxla who was working as malkhana incharge at the relevant time and he has also proved the relevant entries in the malkhana register.
53. PW8 SI Ramesh Sharma had furnished report u/s 57 NDPS Act with respect to the said recovery and the same has been proved as Ex.PW8/G. This is also corroborated by the testimony of PW18 SI Gyan Chand, SO to ACP, Special Cell.
54. The deposition of PW19 HC Amit Kumar proves that the sample drawn from the recovered substances in proper custody were deposited with FSL, Rohini, Delhi for examination and he obtained receipt of the same and handed over the same to MHCM. Photocopy of Road Certificate No. 162/21/2010 in register no.21 has been duly proved.
55. PW28 Dr. Madhulika Sharma, Deputy Director, FSL Rohini has proved the report prepared by her with respect to the analysis conducted by her of the sample and the report has been proved as Ex.PW28/A. According to this report Ex.S1, S3 and S5 (with respect to recoveries from accused Sanaullah) was FIR No. 03/10 PS Special Cell Page 29 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 found positive for cannabis. Ex.S7 (with respect to recovery from accused Baldev) was found positive for diacetylmorphine).
56. The testimony of the prosecution witnesses is trustworthy and believable and nothing has emerged in their crossexamination which cast doubt on the veracity of their statement or to impeach their creditworthiness.
57. Now I must deal with the contentions of Ld. Counsels for the defence.
58. Regarding non compliance of section 42(1) of the NDPS Act, it is stated that there is no merit in the contention. The factum of recording of secret information Ex.PW16/A has been deposed at length by PW8 SI Ramesh Sharma who had received the said secret information and who had reduced it into writing. SI Ramesh Sharma had received the information on phone through the secret informer. Mere fact that it is not mentioned in the secret information itself by which telephone number he had received the said secret call in his office is not material. Investigating agency has a right to withhold the said information because otherwise through the said number, the identity of the informer could be easily known.
59. The contention regarding non compliance of section 42(2) of the NDPS Act has also no merit. It has been proved by PW18 SI Gyan Chand, the then SO to ACP, Special Cell that on 04.09.2010 copy of DD No.2 was forwarded to the ACP Special Cell. An entry to this effect was made in the daily diary register at serial no. 2091 and the true copy of the said entry is proved as Ex.PW18/A which bears the signatures of Sh. Ravi Shankar, ACP at point A. Since the information was brought to the attention of ACP on the same day itself i.e. on 04.09.2010, the fact that it is not mentioned therein about the time of the said information given to the ACP, has no value. As per section 42(2) of the NDPS Act, the person receiving the information has to send a copy of the same to his FIR No. 03/10 PS Special Cell Page 30 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 immediate superior official within 72 hours and the same has been fully complied in the present case.
60. The argument that investigating agency did not make sincere efforts to involve any public person in the proceeding of recovery of contraband also has no merit. It is deposed by IO SI Ramesh Sharma (PW8) that he had asked 34 public persons to join the raiding party and one Mool Chand S/o Mohan R/o K 408, Mangol Puri, Delhi had agreed to join the raiding party and he was a witness to the apprehension of both the accused persons and the entire search and seizure proceedings conducted at the spot on 04.09.2010. At the stage of evidence, the court issued summons to the said Sh. Mool Chand and the same were received back with the report of his son that his father had become mentally unstable after the death of one of his son and he was rarely visiting the house. His summons given dasti to the IO, Inspector Attar Singh was also received back with the same report. Hence the said witness was not available and this was the reason for non examination of the said public witness. In view of the same, the investigating agency cannot be imputed any blame for the non examination of the said witness. As stated above, the testimony of the other recovery witnesses who are police officials has remained unblemished.
61. As per the case of the prosecution while the police had taken its position at th spot at about 08.50 AM accused Sanaullah was seen coming on foot towards Mangolpuri and carrying a pink colour polythene bag and he was stopped and in the meantime accused Baldev was seen standing 25 steps away parking his scooter and he was also apprehended. The entire proceeding had not taken place in a ground so that everything was visible from a distance. Mangolpuri Industrial Area is a congested place with narrow bylanes and it may be that accused Baldev Singh may not have noticed accused Sanaullah Mir being FIR No. 03/10 PS Special Cell Page 31 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 apprehended by the police and that is how he also reached there and was parking his scooter, when apprehended by the police. Hence it cannot be said that Baldev Singh was only at a distance of about 25 steps from the place of arrest of accused Sanaullah Mir and this in itself is unbelievable.
62. As per the case of the prosecution, accused Baldev, Arbaz and Anees were called for interrogation by the police but the date of their calling in the office is not mentioned. There is nothing to suggest that the withholding of the date of their calling in the office is with some purpose and from the same, we cannot read the natural human behaviour as suggested by the Ld. Defence counsel. The deposition of the recovery witnesses has been found to be trustworthy and believable by the court. It is immaterial that the prosecution has not filed the statement of the said persons recorded u/s 161 Cr.PC, if any when they were called in the office by the police.
63. There is merit in the contention of Ld. Counsel for the defence that prosecution has not been able to prove anything out of the transcript Ex.PW8/C in respect of telephonic talk between accused Baldev Singh and one Mr. Khundewala on mobile no. 9999147338 in which he had allegedly talked about international smuggling of drugs. In my view, even if the said transcript is taken out of consideration zone, there is sufficient other evidence to connect both the accused i.e. Baldev Singh and Sanaullah Mir with the offence in question in relation to the recovery of contraband.
64. Ld. Counsels for the defence have next emphasized a lot on the point that there was delay of about 3034 days in sending the sample parcels to the laboratory and hence it creates doubt in the case of the prosecution. In my view, mere delay in sending the sample parcels to the laboratory cannot be a ground to presume tampering with the case property. The delay would be material only FIR No. 03/10 PS Special Cell Page 32 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 where suspicion as to the tampering with case property is brought to the notice of the court. Where there is absolutely no plausible evidence to indicate tampering with the case property, the mere delay in sending the samples to the laboratory cannot be fatal to the case of the prosecution. The prosecution has completed the link evidence of this case by examining all the material witnesses i.e. Inspector Rajender Singh Sehrawat (PW8) to whom the case property was handed over by HC Anil Tyagi (PW7) and SI Anand Swarup (PW10) in the police station; the MHCM ASI M. Baxla (PW4) to whom the case property was handed over by Inspector R.S. Sehrawat for depositing it with malkhana; Ct. Rajesh Kumar (PW3) who took the sample parcels with CFSL forms from MHCM and got the same deposited with FSL, Rohini and he obtained a receipt thereof which was handed over to the MHCM. All these witnesses have completed the link evidence. There is no evidence to suggest that during the time the case property remained in the possession of the prosecution witnesses, it was tampered with by anybody. Neither any of the prosecution witness had any reason to tamper with the case property nor any such evidence has come on record. Thus mere delay of about 3034 days is not sufficient to see that case of the prosecution with doubt.
65. In a recent case titled as Mohan Lal Vs. State of Rajasthan (2015) 6SCC 222, the Hon'ble Supreme Court of India has held that where the parcel is received at FSL with seal being intact, there is no reason or justification to discard the prosecution case on the ground of delay in sending the sample to FSL. In this case, the Hon'ble court cited another authority titled as Harbir Singh Vs. State of Punjab (2008) 8SCC 557 where there was 40 days gap between seizure and sending the sample to Chemical Examiner and after examining all the circumstances, the Hon'ble Supreme Court held that the FIR No. 03/10 PS Special Cell Page 33 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 opium was seized from the appellant and seals put on the sample were intact till it was handed over to the Chemical Examiner and in this circumstance, the delay itself would not be fatal to the prosecution case.
66. In view of the above, as far as recovery of contraband from accused Baldev Singh and Sanaullah is concerned, in my view, the prosecution has been able to prove its case beyond reasonable doubt.
67. With respect to issue of conspiracy between accused persons, it may be pointed out that section 29 of the NDPS Act essentially relates to the abetment and participating in a criminal conspiracy. It is well known that both abetment and criminal conspiracy are fiendishly difficult to establish by virtue of direct evidence. However it can be established by indirect or circumstantial evidence which is of impeccable nature. In the present case, in my view, the entire evidence including call detail records and the transcript of conversation between the accused persons is insufficient to prove conspiracy between them with respect to trafficking of drugs and they can be held guilty only for the respective recovery of contraband from them. Hence all the accused are acquitted for the offence u/s 29 NDPS Act.
68. As stated above, since the accused can be held guilty only for the respective recovery of contraband from them, accused Baldev Singh who was found in possession of 1 Kg of heroin is convicted for the offence u/s 21(c) NDPS Act. Accused Sanaullah Mir who was found in possession of 2.050 Kg of charas is convicted for the offence u/s 20(b)(ii)(C) NDPS Act.
69. It is further argued by Ld. Counsel for the accused Baldev Singh that section 25 of the NDPS Act is applicable only in those cases where the owner or occupier of any conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act but it is FIR No. 03/10 PS Special Cell Page 34 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 not so in the present case and hence accused Baldev Singh cannot be convicted for the said offence. I agree with this contention of Ld. Counsel for the defence. In my view, section 25 NDPS Act envisages those conditions where the owner or occupier of any house, room, enclosure, space, place, animal or conveyance is different from the person who is the actual user of the same for the commission of the offence under this Act. The words 'by any other person' in section 25 are very material. If the owner or occupier knowingly permits such place or conveyance to be used by any other person for the commission of offence under this Act, only then section 25 would come into play. In the present case accused Baldev Singh is himself the registered owner of vehicle no. DL 3SR 9403 from which the recovery was effected and hence the ingredient of section 25 NDPS Act are not satisfied and hence he is acquitted for the offence u/s 25 NDPS Act.
70. As far as accused Jarnail Singh, Javed, Arbaz and Anees Khan are concerned, as per the case of the prosecution, counterfeit currency notes were recovered from them and they were also trafficking in narcotic drugs alongwith co accused Baldev Singh and Sanaullah Mir. As stated above, the prosecution has failed to prove the charge of conspiracy against the accused persons. However, on the pointing out of Baldev, when coaccused Jarnail Singh was apprehended on the same day near railway flyover, outer ring road, G.T. Karnal Road, Delhi, there was alleged recovery of 100 counterfeit currency notes in the denomination of Rs. 500/ (in total Rs. 50,000/). Similarly, as per the case of the prosecution, when in pursuance to the disclosure statement of accused Sanaullah and on his pointing out, coaccused Javed was apprehended from the ground floor of H.No. 7, Bazar Lane, Bhogal there was alleged recovery of 100 counterfeit currency notes of the denomination of Rs. 100 (in total Rs.
FIR No. 03/10 PS Special Cell Page 35 of 41State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 50,000/). Thereafter, accused Arbaz and Anees were apprehended from H.No. U108, Gali No. 5, Arvind Nagar, Gautam Vihar, Gonda and there was alleged recovery of counterfeit currency notes in the sum of Rs. 20,000/ (40 notes of Rs. 500 denomination) and Rs. 25,000/ (50 notes of Rs. 500 denomination) respectively from them.
71. In my view, the prosecution has failed to prove its case with regard to the recovery of counterfeit currency notes from Jarnail Singh, Javed, Arbaz and Anees Khan.
72. As per the prosecution allegation, the recovery of fake currency notes from accused Jarnail was on the basis of disclosure statement of coaccused Baldev and the recovery was allegedly effected from G.T. Karnal Road bypass which is a crowded place and no public witness was joined by the police officials. Moreover, no police officials from the local police station or PCR was joined in the said recovery proceedings which creates doubt.
73. In the proceedings related to the recovery of counterfeit currency notes from Javed from his tenanted premises, the police did not deem it fit even to call the landlord or any other person of the neighbourhood. Sh. Ganesh Aggarwal (PW6) who is the owner of the premises has deposed that he had given two room set in the tenancy of Sh. Bilal Ahmed and Javed also used to reside the in the said house alongwith him. He further admitted in his crossexamination that police had not come to the said tenanted premises before 13.10.2010 and he is residing on the first floor of the said tenanted premises. Hence the recovery of counterfeit currency notes under the pillow lying on the bed in the room of the said tenanted premises cannot be said to be linked with Javed, beyond reasonable doubt.
FIR No. 03/10 PS Special Cell Page 36 of 41State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10
74. It is the case of the prosecution that Baldev Singh is closely related with Arbaz and Anees @ Guddu and they were residing in the same premises and recovery of counterfeit currency notes was effected from their respective rooms on their pointing out and in my view, the same is also highly doubtful. If Baldev Singh was arrested on the same day, it is highly improbable that Arbaz and Anees would not be able to destroy or shift the counterfeit currency notes to some other place, if they were in possession of the same.
75. The recovery of counterfeit currency notes from these accused persons appears to be a planted story, as rightly asserted by Ld. Counsels for the defence as their names found mention in the visiting register in question.
76. Hence in totality of the facts and circumstances, the prosecution has failed to prove its case against the accused persons u/s 489C r/w section 120B IPC and hence all the accused persons are acquitted for the said offence.
77. Bond u/s 437A Cr.PC with one surety have been furnished on behalf of all the accused persons except accused Sanaullah. These bonds would remain valid for six months.
78. Let accused Baldev Singh and Sanaullah Mir be heard on the point of sentence separately on 22.08.2016.
Announced in open Court on this 11th day of August, 2016 (Deepak Garg) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No. 03/10 PS Special Cell Page 37 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 • IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI • • FIR No. 03/10 • PS Special Cell (Kotwali) • State Vs. Baldev Singh & Ors.
•
• ORDER ON SENTENCE
• Present: Sh. R.K. Bhati, Ld. SPP for the State.
• Convicts Baldev Singh and Sanaullah Mir from JC.
• Defence counsel Sh. F. Haq for both the convicts.
• Vide judgment dated 11.08.2016, accused Baldev Singh was convicted
for the offence u/s 21(c) NDPS Act and accused Sanaullah Mir was convicted for the offence u/s 20(b)(ii)(C) NDPS Act.
• The case is today fixed for arguments on sentence to be imposed upon the convicts.
• Ld. APP for the State has mainly contended that the offences under the NDPS Act are very serious in nature and the convicts in the present case should be imposed the maximum punishment and that they should not be shown any leniency in view of the gravity of the offence. It is further stated that convict Baldev Singh was earlier convicted in case FIR No. 133/1985 PS Alipur u/s 61/1/14 Excise Act for RI for three years by the court of Sh. P.D. Gupta, the then Ld. MM, Tis Hazari Courts, Delhi and in Sessions Case no. 11/95 u/s 8/21 and 8/29 NDPS Act by the court of Special JudgeNDPS, Bikaner, Rajasthan vide order dated 03.08.2002 for period of 15 years and the copy of the same is on record as Ex.PW8/O. • On behalf of the convicts, it is stated by Ld. Counsel Sh. F. Haq that convict Baldev is aged 71 years and his family consists of his wife and two sons. Both the sons are stated to be living separately and the wife is stated to be dependent upon him for her survival. It is further stated that he is a patient of heart FIR No. 03/10 PS Special Cell Page 38 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 disease and hence lenient view may be taken by the court. It is further submitted that he was never convicted by the Special CourtNDPS, Bikaner, Rajasthan for any offence under NDPS Act and the Baldev Raj who was convicted vide the judgment Ex.PW8/O was some other person and not him.
• It is further stated that accused Sanaullah Mir is aged 60 years and his family consists of three sons who are living separately. It is further stated that the convicts are facing trial since the last more than 6 years and hence lenient view may be taken by the court.
• Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is the imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which crime is done. There is no straight jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
• In the case of State of Karnataka Vs. Krishnappa 2000 (4) SCC 75, Hon'ble Supreme Court has held with reference to sentencing by courts as under:
18. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
• As far as the previous conviction record of convict Baldev is FIR No. 03/10 PS Special Cell Page 39 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 concerned, in my view, prosecution has not been able to prove that the said judgment Ex.PW8/O relates to this convict Baldev. The name of the person in the said judgment is mentioned as Baldev Raj @ Jagga s/o Thakar Das whereas he is mentioned as Baldev Singh @ Sabir Ali S/o Late Sh. Thakur Das in the chargesheet of the present case. Similarly, the conviction record in respect of the case u/s 61/1/14 Excise Act is also not proved to be read against the convict. Considering the facts that convict Baldev Singh is aged 71 years and Sanaullah is aged 60 years and the fact that they are facing trial from the last about 6 years and considering the quantity of the contraband recovered, in my view, it would suffice if the the convicts are sentenced to minimum imprisonment prescribed under the law. Hence they are sentenced as under:
Name of the Offence Sentence convict Baldev Singh U/s 21(c) NDPS Act RI for 10 years and fine of Rs.1 lac. In default SI for 6 months. Sanaullah Mir U/s 20 (b)(ii)(C) RI for 10 years and fine of Rs. 1 lac. In NDPS Act default SI for 6 months.
Fine not paid. Benefit of section 428 Cr.PC is given to the convicts and the imprisonment already undergone by them shall be set of against the substantive period of sentence awarded to them.
Case property is confiscated to the State and the same may be disposed of after the expiry of the period of the appeal/revision or the order of the appellate court, if any.
Copy of the judgment and the sentence be given to the convicts free of cost. Copy of the order be sent to Jail Superintendent for compliance.
File be consigned to record room.
Announced in the open court FIR No. 03/10 PS Special Cell Page 40 of 41 State vs. Baldev Singh @ Sabir Ali & Ors. SC No. 22/10 on this 23rd day of August, 2016 (Deepak Garg) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No. 03/10 PS Special Cell Page 41 of 41