Delhi District Court
State vs Vijay @ Kale on 24 January, 2023
IN THE COURT OF SH. DHARMENDER RANA
SPECIAL JUDGE, NDPS ACT (CENTRAL):
TIS HAZARI COURTS: DELHI
SESSIONS CASE NO. 64/2015
CNR NO. DLCT01-003312-2015
STATE Versus Vijay @ Kale
S/o Sh Bida Ram,
R/o AB-24, Amar
Puri,Nabi Karim,
Delhi.
FIR No. 66/2015
U/S. 21 NDPS Act
P.S. Crime Branch
Date of Institution : 13.10.2015
Date of arguments : 05.01.2023
Date of Decision : 24.01.2023
Final Decision :CONVICTED
JUDGMENT
A. CASE OF THE PROSECUTION IN BRIEF:-
1. Briefly Stated: Allegations against accused named above is that on 01.05.2015, at about 02.45 PM, a secret information was received by SI Rajnikant(posted in Narcotics Cell) that one person namely Vijay @ Kale r/o Nabi Karim, who used to supply Heroin in Delhi alongwith his associate namely Sindhi, would bring heroin in huge quantity. It was informed that Vijay @ Kale would come to Kutub Road Nabi Karim in front of Gopal Bhawan at road towards New Delhi Railway Station, at FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 1 /28 about 04.15 PM-04.45 PM and he can be apprehended with his associates, if raid is conducted on time. SI Rajnikant produced secret informer before Inspector Kuldeep Singh of Narcotics Cell at about 03.00 PM. Inspector Kuldeep Singh also made enquiries from Secret informer and after being satisfied, informed Sh R.K. Tyagi i.e. ACP/N&CP about secret information. Sh R.K. Tyagi directed that a raid be conducted. SI Rajnikant reduced said secret information into writing vide DD No.15 at 03.15 PM, Narcotics Cell, Crime Branch, Delhi and copy of same was sent to Inspector Kuldeep Singh; Narcotics Cell, in compliance of Section 42 of NDPS Act.
2. A raiding team was accordingly constituted comprising of SI Rajnikant, HC Satvir and Ct Sunny Kumar. SI Rajnikant collected his field testing kit, IO Kit and weighing machine. The raiding team accordingly left for the spot in a govt gypsy bearing registration no.DL9CM4228 driven by SI Rajnitkant vide DD No.16 at 03.30 pm. The raiding team reached at the spot at about 04.00 PM and parked their vehicle. SI Rajni Kant made an endeavor to join 4 to 5 passersby, in front of Civic Center and LNJP Hospital, in the investigation but none of them agreed . Thereafter, the raiding team again made a request to 7-8 shopkeepers to join raiding team after reaching Kutub Road, but none of them obliged showing their inability to join investigation in a criminal matter and they expressed their concern about their life and property. The team accordingly reached and took their position at Gopal Bhawan Kutub Road at about 04.10 pm. The FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 2 /28 raiding team accordingly laid a trap. At about 04.20 pm, accused Vijay @ Kale was noticed coming down from the side of Nabi Karim Police station carrying a heavy black colour polythene and he was pointed out by secret informer from about 50 mtrs and thereafter, secret informer left the spot. Accused Vijay @ Kale very carefully came walking down at the cut opposite Gopal Bhawan and after waiting there for someone, for about 8-10 minutes, when he was about to leave, he was apprehended by the police.
3. SI Rajni Kant made preliminary inquiries from the accused Vijay @ Kale and informed accused Vijay @ Kale about the information regarding the contraband. The accused was also apprised of his rights to be searched by a Gazetted Officer and notice under Section 50 of NDPS Act was accordingly served in this regard upon accused. However, accused refused to be searched in presence of a Gazetted officer and his refusal in this regard was duly recorded by SI Rajni Kant and accused appended his left hand thumb impression upon the said refusal.
4. SI Rajni Kant once again requested passersby, who had gathered there, to join the investigation but they all refused and left the spot citing one reason or the other. Thereafter, SI Rajni Kant took cursory search of accused Vijay @ Kale and checked the contents of the bag recovered from him and it was found containing one transparent bag which was found to be containing Heroin. Upon weighing the contents of the said transparent bag, FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 3 /28 with the help of spring balance machine, it was found to be containing 400 gms of heroin. SI Rajni Kant drew two samples of 5gms each from the recovered contraband. The contents were separately kept in three pullandas (packages) and marked A1, A2 and A respectively. SI Rajni Kant filled FSL Form regarding the recovered contraband. The pullandas marked A1, A2 and A were sealed separately with the seal of 5A PS NB Delhi. Seal impression was also appended upon the FSL Form. Seal after use was handed over to HC Satbir.
5. Thereafter, a rukka was prepared and the same was sent to SHO PS Crime Branch through Ct Sunny Kumar alongwith pullandas etc for compliance of Section 55 of NDPS Act. FIR was accordingly got registered and investigation was carried out.
6. The investigation ultimately culminated in filing of the instant chargesheet.
B. CHARGE FRAMED AGAINST ACCUSED
7. On 03.11.2015, charge for offence punishable U/s 21(c) NDPS Act was framed against accused Vijay @ Kale. Thereafter, case was fixed for prosecution evidence.
C. EVIDENCE LED BY THE PROSECUTION
8. In order to bring home the guilt of accused, prosecution has examined following 11 witnesses on record.
(i). PW-1 is HC Jag Narain i.e. MHC(M);
FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale
Pages 4 /28
(ii) PW-2 is HC Shambhu Nath is the DO;
(iii) PW-3 is HC Mahesh Kumar carried the samples to CFSL;
(iv) PW-4 is Ct Shani Kumar who was the part of the raiding
team;
(v) PW-5 is ACP Ravinder Kumar Tyagi who instructed the
sub-ordinates to initiate appropriate action upon the secret information and received a written report in compliance of Section 42 of NDPS Act vide DD Ex.PW-5/A and reports under Section 57 of the NDPS Act regarding the recovery of contraband and arrest of accused Vijay @ Kale Ex.PW- 5/C and Ex.PW-5/D;
(vi) PW-6 is Inspector Manjeet Tomar who was SHO PS Crime Branch at the pertinent point of time. He received the sealed parcels alongwith the FSL form and sealed the parcels with the seal MT and also affixed the same upon the FSL form. He has proved DD No.25 Ex.PW-6/A with respect to arrival of Ct Sunny Kumar in the police station alongwith the sealed parcels and FSL form and carbon copy of seizure memo;
(vii) PW-7 is ASI Satbir is part of the raiding team;
(viii) PW-8 is Inspector Kuldeep Singh who briefed ACP Ravinder Tyagi about the secret information and directed SI Rajni Kant to carry out the raid;
(ix) PW-9 is ASI Narender Kumar is the subsequent IO who has proved the site plan Ex.PW-9/A and concluded the investigation and filed the challan;
(x) PW-10 is Dr Subhra Kumar Paul is the senior scientific FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 5 /28 officer (Chemistry) from FSL Rohini who has tested the sample in the FSL and opined that the sample was found to be, inter alia containing Diacetylmorphine and proved his report Ex.PW-9/B in this regard;
(xi) PW-11 Inspector Rajnikant Sharma is the initial IO who conducted the raid and recovered the contraband.
D. STATEMENT OF ACCUSED U/S 313 CR.PC:-
9. Thereafter, statement of accused was recorded under Section 313 Cr.P.C. wherein accused had denied all the incriminating evidence which has come on record against him.
E. DEFENCE EVIDNCE LED BY ACCUSED:-
10. Accused Vijay @ Kale examined DW-1 Ms Sonam, his sister-in-law (Sali) in his defence to prove that he was falsely implicated.
F. FINAL ARGUMENTS:-
11. I have heard Ld Addl PP for State as well as Ld. Counsel for accused. I have perused the record carefully.
12. It is forcefully argued on behalf of Ld. Addl PP for State that the prosecution has successfully proved its case against accused. It is submitted that accused deserves to be convicted under Section 21 of the NPDS Act.
FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 6 /28
13. On the contrary, Ld. Defence Counsel has forcefully argued that accused deserves to be acquitted in the instant matter. It is submitted that the accused deserves acquittal on the ground of infraction of mandatory notice under Section 50 of the NDPS Act. It is forcefully argued that not only the notice under Section 50 of the NDPS Act is required to be served upon the accused before making his search but it is also obligatory on the part of the IO to inform the accused of his rights under Section 50 of the NPDS Act in writing. It is submitted that although the prosecution witnesses have claimed that the accused was intimated of his rights but oral intimation is not sufficient compliance of Section 50 of NDPS Act. It is submitted that it was mandatory on the part of the investigating officer to inform the accused of his rights under Section 50 of the NDPS Act in writing. It is further submitted that IO has also not made any prior preparation to ensure the presence of any Gazetted officer or Magistrate at the spot before conducting the search of the accused.
It is further submitted that accused deserves to be acquitted for non-compliance of Section 52A of the NDPS Act. It is submitted that it was mandatory for the investigating officer to have drawn samples, in accordance with Section 52 A, in the presence of Magistrate only, whereas admittedly the samples were drawn at the spot itself and not in the presence of any Magistrate. It is submitted that samples in fact were drawn in stark violation of standing order no.1/89 dated 13.06.1989, issued under Section 52A of the NDPS Act by Department of Revenue.
FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 7 /28 It is pointed out that as per rule no. 2.9 of the above said standing order, the drawn samples should be placed in a paper envelope and needs to be sealed properly. It is submitted that the sealed envelope should also bear number of packages and containers from which the samples has been drawn and this envelope alongwith test memo should be placed in another envelope and is required to be sent to CFSL. It is further pointed out that as per Rule 2.13 of the above standing order, the original wrappers are also required to be preserved for evidentiary purposes.
It is submitted that in the malkhana register Ex.PW-1/A, there is no signatures of the person receiving the contraband to be taken to the CFSL. It is thus submitted that it cannot be presumed that to whom the contraband was entrusted. It is similarly pointed out that in road certificate Ex.PW-1/B there is no time mentioned with respect to the dispatch of the contraband to CFSL.
It is further pointed out that there is no seal handing over/ taking over memo proved on record. It is further pointed out that it is mandatory to prove on record the inventory of the field testing kit. It is pointed out that Ct Shani Kumar @ Sunny Kumar (PW-4) admits that no inventory receipt was prepared by IO in his presence. It is similarly pointed out that no calibration certificate with respect to the weighing scale has been produced. It is submitted that the prosecution has failed to prove that what measure of the recovered quantity was tested by the IO at the spot. It is further submitted that IO claims that he used his personal kit and thus the same cannot be relied upon as he should have used the official kit and not the personal kit. It is thus FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 8 /28 submitted that accused deserves to be acquitted.
14. I have heard Ld Addl PP for State and Ld counsel for the accused person and have carefully perused the record file and have gone through the material placed on record. G. REASONS FOR THE DECISION:-
15. Section 21 of NDPS Act is reproduced below for ready reference:-
"21. Punishment for contravention in relation to manufactured drugs and preparations- Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable-
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c)where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
Perusal of Section 21 (c) of NDPS Act would reveal that 'possession' of commercial quantity of Diacetylmorphine (heroin) FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 9 /28 is punishable under Section 21(c) of said Act.
APPRECIATION OF EVIDENCE:
16. In "Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC 1328", it was observed that no hard and fast rule can be laid down about the appreciation of evidence and every case has to be judged on the basis of its own facts. While appreciating the evidence of the witness, the approach must be whether the evidence of a witness read as a whole appears to have ring of truth. Once that impression is formed, it is undoubtedly, necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiency, drawbacks and the infirmities pointed out in the evidence as a whole, and evaluate them to find out whether it is against the general tenor of evidence given by the witness as to render it unworthy of belief. In 'Bhagwan Tana Patil Vs. state of Maharashtra, AIR 1974 SC 21', the apex court ordained that the function of the court is to disengage the truth from the falsehood and to accept what it finds the truth and reject the rest. It is only where the truth and falsehood are inextricably mixed up, polluted beyond refinement down the core, the entire fabric of the narration given by a witness then the court might be justified in rejecting the same. This legal position was further elaborated in 'State of UP Vs. Shankar, AIR 1981 SC 897', wherein the Apex court observed that mere fact that the witness has not told the truth in regard to a peripheral matter would not justify whole sole rejection of his evidence. In this country, it is rare to come across the testimony FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 10 /28 of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is only where the testimony is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence. Therefore, the duty is cast over this court to dispassionately disengage the truth from the falsehood and accept the truth and reject the same. This court is not meant to reject the testimony of a witness on slightest deflection, however has a bounden duty to search the truth. Apex court in case titled "Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8 SCC 381", held that the principle falsus in uno falsus in omnimus is not applicable in India and it is only a rule of caution. Even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of the accused, the conviction can be maintained. It is the duty of the court to separate the grain from chaff. Hon'ble Apex Court in State of UP Vs. M.K. Anthony 1985 (1) SCC 505 held that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 11 /28 approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Further, Hon'ble Apex court in 'Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018', in para 12 observed "while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed. It is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.......".
17. As far as the defective and illegal investigation is concerned, apex court held that if investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of faulty investigation otherwise criminal trial descend to the IO ruling the roost. Yet if the court is convinced FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 12 /28 that the evidence of eye witnesses is true, it is free to act upon such evidence though the role of the IO in the case is suspicious (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the IO whose investigation was defective by design. (Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial (Paramjit Singh Vs. State of Punjab AIR 2008 SC 441). The lapses or the irregularities in the investigation could be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and evidence is of sterling quality. If the lapses or irregularities do not go the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored (Sunil Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
18. Evidently, the binding judicial pronouncements casts a duty upon the Trial Court to cull out the nuggets of truth from the evidence available on record. To sum up, while appreciating evidence on record the duty of the court is to separate credible and incredible part of evidence.
19. Having noted the general principles of appreciation of evidence, let us now examine the material available on record to seek an answer to determine the issue of guilt of accused. RECOVERY OF CONTRABAND ARTICLE:-
FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 13 /28
20. The case of the prosecution hangs upon the testimony of star witnesses Ct Sunny Kumar @ Shani Kumar (PW-4), ASI Satbir(PW-7) and SI Rajni Kant Sharma(PW-11).
21. Ct Sunny Kumar @ Shani Kumar(PW-4) in his examination in chief has categorically testified as under:-
"At about 04.20 p.m. from the side of Nabi Karim, one person wearing sky blue jeans and green black shirt of white lines was seen coming on foot, was pointed out by the secret informer as Vijay @ Kale from a distance about 15 mtrs. The secret informer went from the spot. The said person came infront of Gopal Bhawan and started waiting for someone. He was holding a heavy black colour polythene bag in his left hand. He kept on waiting for 8-10 minutes and was about to leave. SI Rajnikant alongwith the staff apprehended the said person, who is present in the court today (correctly identified).
................................................................................ ................................................................................. ................................................................................. SI Rajni Kant took search of the accused. The black colour polythene was taken from the hand of the accused and it was checked after opening. It was found containing a transparent polythene bag having brownish colour substance (matmaila), tied the same with a rubber band. The said transparent polythene bag was opened by removing the rubber band and a small quantity was checked on the field testing kit (SIC) and found the same to be heroin.............................................................."
22. The testimony of Ct Sunny Kumar @ Shani Kumar(PW-4) is further corroborated by the testimony of ASI Satbir (PW-7).
Relevant portion of testimony of PW-7 is also reproduced as under:-
"Without wasting time, on the instructions of SI Rajnikant, we took the position at the cut of the road near Gopal Bhawan. At around 4.20 p.m., we FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 14 /28 noticed that one boy was coming from Nabi Karim side and he was carrying a black colour polythene. When the said boy was at a distance of 50 mtrs., the secret informer pointed out the said boy as Vijay @ Kale and thereafter, secret informer left the spot. The said boy was wearing sky blue colour jeans and white colour shirt having black & green strips. Accused Vijay @ Kale came at the cut near Gopab Bhawan and he stayed for abut 8-9 minutes and waited for someone. Thereafter, he started moving towards Nabi Karim side. At around 4.30 p.m., we apprehended accused Vijay @ Kale, present in the court today, (Correctly identified). SI Rajnikant told the accused about the secret information. ................................................................................ ................................................................................. ................................................................................. In the meantime, 5-6 public persons gathered there. SI Rajnikant asked them to join the proceedings but none agreed. SI Rajnikant took the search of the accused. The black colour polythene was taken from the hand of accused. After opening the said polythene bag, it was found containing a transparent polythene bag which was opened by removing the rubber band. The said transparent polythene was containing a substance of "matmaila" colour. The said substance was checked with the help of field testing kit and it was found to contain heroin. The substance was weighed with the transparent polythene and it was found 400 gms. , ................................................................................ ................................................................................. ..............................................................................."
23. Similarly, SI Rajni Kant(PW-11) has also testified on similar lines and has corroborated the testimony of Ct Sunny Kumar @ Shani Kumar(PW-4) and ASI Satbir(PW-7). Relevant portion of testimony of SI Rajni Kant(PW-11) is also reproduced here as under:-
"At about 4.20 PM, accused Vijay @ Kale who is present through VC (correctly identified) came FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 15 /28 there from the side of Nabi Karim having one packet in the left hand. He was identified by the secret informer about 50 meters prior to his arrival at the spot. Thereafter, secret informer left from there. Accused Vijay @ Kale came at cut opposite Gopal Bhawan and started waiting there for someone and waited there for about 10 minutes. Thereafter, he turned back and started moving towards Nabi Karim. On this, I along with staff apprehended him. I introduced myself to the accused Vijay @ Kale and brought him near our govt vehicle. I also disclosed him that I am having secret information about you that you are having having contraband item in your possession. Thereafter, I served him notice under Section 50 NDPS Act which is already Ex PX bearing my signature at point X. On this accused told that he is illiterate and cannot read and write the same. I also told him that if you want, your search can be taken in presence of GO or Magistrate and it is your legal right. Thereafter, I read over the contents of notice under Section 50 NDPS Act to him and as per his dictation write his reply on the notice which is on carbon copy of notice which is Ex.PW4/A at portion D-1 to D-2 and my signature on the carbon copy of notice at portion X2 and portion X3 below reply of accused. The reply of accused is Ex. PW4/B. Same also bears the thumb impression LTI of accused Vijay @ Kale at portion X and X1. Same also bears signature of witnesses i.e. police officials who are with me at that time at point B-1, A, B-3 and A-2. I conducted the cursory search of accused and from the left hand of accused Vijay @ Kale, one packet in black colour polythene was recovered. Same was opened and same was found to contain one transparent polythene and same is found to contain some muddy colour substance. The mouth of the transparent polythene was tied with rubber band. Same was opened and small amount of the substance was checked on field testing kit which was found to be heroin. The total substance of contraband item i.e. heroin with transparent polythene was got weighed on electronic weighing machine which was found to be 400 grams heroin. I took out two samples of 5 grams each from the said recovered poythene and kept FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 16 /28 the same in two small transparent polythene and converted the same in two cloth parcels and same were marked as Mark A-1 and Mark A-2. The remaining contraband which was left in the same transparent polythene and mouth of the same was tied with the rubber band and kept the same in same black transparent polythene and converted the same into cloth parcel and same was marked as Mark A. All the three parcels were sealed with the seal of 5APS NB DELHI. Thereafter, I filled up FSL form and put the same seal on it. I seized the said parcels and FSL form through seizure memo Ex. PW4/C bearing my signature at point X2. After use, sample seal was handed over to HC Satbir. Thereafter, I prepared rukka which is Ex. PW11/B which beras my signature at point X. Thereafter, I handed over all the parcels along with FSL form and carbon copy of seizure memo which is Ex. PW1/X-1 bearing my signature at point X to Ct. Shani to hand over the same to SHO PS Crime Branch. I also handed over rukka to Ct. Shani to hand over the same to DO for registration of FIR. Ct. Shani left the spot in govt vehicle to PS Crime Branch at about 7.30 PM."
24. Ct Sunny Kumar @ Shani Kumar(PW-4) and ASI Satbir(PW-7) and SI Rajni Kant Sharma(PW-11) have categorically testified that on the fateful day, accused was apprehended with a one black colour polythene containing heroin. Star witnesses of the prosecution are cogent, consistent and credit worthy. The defence has failed to shake the credibility of the star witnesses despite a grueling cross examination of the witnesses.
SAFE CUSTODY OF CONTRABAND:-
25. The testimony of above said witnesses not only prove the recovery of the said contraband but also proves its prompt dispatch to the police station and its deposit in the malkhana.
FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 17 /28 From the testimony of Ct Sunny Kumar(PW-4), ASI Satbir (PW-7) and SI Rajni Kant Sharma(PW-11), duly corroborated by the testimony of Sh Manjeet Kumar(PW-6) and MHC(M) HC Jag Narain (PW-1), it is conclusively established on record that the recovered contraband alongwith two seized samples and the FSL Form was promptly sent to the police station. Contemporaneous report prepared in compliance of Section 57 of NDPS Act Ex.PW-5/C and Ex.PW-5/D further corroborates the prompt dispatch and deposit of the case property. Further, Inspector Manjeet Singh(PW-6); the then SHO, has categorically testified that on 01.05.2015 at about 08.35 PM, Ct. Shani Kumar came to his office and he produced three sealed parcels duly Mark A, A1 and A2 along with one filled FSL form sealed with the seal of 5APSNBDELHI and carbon copy of seizure memo. Inspector Manjeet Singh (PW-6) further sealed all the three pullandas and FSL form with his seal 'MT'. He further testified that after sealing the recovered article and FSL Form, he promptly handed over the same to HC Jag Narain (PW-1), who deposited the same in the malkhana and made an entry in register no. 19. Inspector Manjeet Singh (PW-6) has proved the DD entry no.25 (Ex.PW-6/A) regarding the deposit of the case property. The testimony of Inspector Manjeet Singh (PW-6) regarding prompt deposit of the case property with MHC(M) in the malkhana is not only corroborated by DD entry Ex.PW-6/A but the same also stands corroborated by the testimony of HC Jag Narain (PW-1) who happens to be the MHC(M) at the pertinent point of time. HC Jag Narain (PW-1) has also categorically testified that on 01.05.2015, FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 18 /28 he was called by SHO in his office along with register no. 19 and SHO handed him over three sealed parcels marked as A, A1 and A2 along with FSL form sealed with the seal of 5APSNB DELHI and 'MT'. HC Jag Narayan(PW-1) had deposited the same in the malkahana vide register entry no. 2260 i.e. ExPW-1/A. NATURE OF RECOVERED SUBSTANCE:-
26. HC Jag Narain (PW-1) has further testified that on 05.05.2015, he had handed over sealed parcel marked as Mark A1 along with FSL form to HC Mahesh Kumar for depositing the same with FSL Rohini. Ct Mahesh Kumar (PW-3) has testified that he deposited the same in FSL, Rohini. Ct Mahesh Kumar (PW-3) categorically testified that the case property remained in his possession while the seals were intact and the same were not tempered with.
27. The testimony of Dr Subhara Kumar (PW-10); Senior Scientific Officer(Chemistry) FSL Rohini, clinches the issue. He categorically testified that on 05.05.2015 one sealed cloth parcel sealed with one seal of 5APSNB DELHI and one seal of MT was received by him in the FSL. He testified that the seals were found intact and tallied with the specimen seal impression forwarded to him. Dr Subhara Kumar (PW-10) categorically testified that upon the examination of sample, it was found to be containing Diacetylmorphine (29%), 6-monoacetylmorphine, paracetamol and papaverine.
28. Ld. Defence Counsel, except for some inconsequential or FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 19 /28 insignificant issues, which shall be duly dealt in the later part of judgment, has failed to point out any material inconsistency in the testimony of prosecution witnesses or any processual infirmity in the process of sealing, seizure or deposit of the contraband in the FSL laboratory.
29. The defence has also failed to point out any infirmity or any major inconsistency in the version of the prosecution witnesses so as to cast any reasonable shadow of doubt upon the prosecution version.
The testimony of Ct Shani Kumar(PW-4), ASI Satbir (PW7) and SI Rajni Kant Sharma(PW-11) coupled with the unimpeached FSL Result Ex.PW-9/B conclusively establishes on record that on 01.05.2015, accused was found in possession of commercial quantity of Heroin.
Consequently, I have no hesitation in observing that prosecution has successfully proved its case against the accused and he deserves to be convicted for commission of the offence under Section 21(c) of the NDPS Act.
Reliance is placed upon the judgment of Hon'ble Delhi High Court in the matter of Kanwar Pal @ Mama Vs State:
2017 CrLJ 2124(Del).
30. Now let us deal with the contentions of Ld. Defence Counsel.
(I) THE FAILURE OF THE INVESTIGATING
OFFICER TO INFORM THE ACCUSED OF HIS
FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale
Pages 20 /28
RIGHT UNDER SECTION 50 NDPS ACT IN
WRITING:-
Ld. Defence Counsel has forcefully argued that the accused should have been informed of his right to be searched in presence of a Gazetted officer/ Magistrate in writing. It is submitted that oral intimation to the accused about his right under Section 50 of the NDPS Act is not sufficient compliance of the mandatory statutory provisions. Ld Counsel for the accused has placed strong reliance upon following judgments in support of his contention:-
1. Vijaysinh Chandubha Jadeja Vs State of Gujarat (2011) 1 SCC 609;
2. Ashok Kumar Sharma Vs State of Rajasthan (2013) 2 SCC 67;
3. Arif Khan @ Agha Khan Vs The State of Uttarakhand:
(2018) 18 SCC 380;
4. Parveen Singh @ Kalia vs State of NCT of Delhi:
CRLA.493/1999 (Delhi High Court);
5. Kamruddin Vs State (NCT of Delhi)(Delhi High Court) Neutral Citation Number 2022/DHC/004767.
However, none of the judgment relied upon warrants that the accused is required to be informed of his right in writing. In my considered opinion, the law merely requires the accused to be informed of his right under Section 50 NDPS Act but the information may not be necessarily in writing. I am fortified in my opinion by the observations of the Hon'ble Apex Court in the matter of Vijaysinh Chanduba Jadeja Vs State of Gujarat:
FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 21 /28 Crl Appeal No. 943 of 2005 with Crl Appeal No. 974 of 2003 and Crl Appeal No.1809 of 2009 date of judgment 29.10.2010 wherein it has been observed herein as under:-
"17. In the above background, we shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh's Case(Supra). We are concerned with the following conclusions: "57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-Section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing."
(Emphasis supplied).
It is further submitted that IO has also not made any prior preparation to ensure the presence of any Gazetted officer or Magistrate at the spot before conducting the search of the accused. However, in my considered opinion the contention does not deserves much attention as ACP Ravinder Tyagi(PW-5), who was duly informed about the case, is a Gazetted Officer.
(II) NON-COMPLIANCE OF SECTION 52A OF NDPS
ACT:-
It is submitted by Ld. Defence Counsel that accused deserves to be acquitted for non-compliance of Section 52A of the NDPS Act. It is contended that it was mandatory for the investigating officer to have drawn samples, in accordance with Section 52 A, in the presence of Magistrate, whereas admittedly the samples were drawn at the spot itself and not in the presence FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 22 /28 of any Magistrate. It is submitted that samples in fact were drawn in stark violation of standing order no.1/89 dated 13.06.1989, issued under Section 52A of the NDPS Act by Department of Revenue. It is pointed out that as per Rule no. 2.9 of the above said standing order, the drawn samples should be placed in a paper envelope and needs to be sealed properly. It is submitted that the sealed envelope should also bear number of packages and containers from which the samples has been drawn and this envelope alongwith test memo should be placed in another envelope and is required to be sent to CFSL. It is further pointed out that as per Rule 2.13 of the above standing order, the original wrappers are also required to be preserved for evidentiary purposes.
In my considered opinion, Section 52A of NDPS Act nowhere requires that samples can only be seized in the presence of the magistrate. It merely provides the procedure for disposal of the seized Narcotic Drugs and Psychotropic Substance after the seizure. Clause 2.1 of the standing order no.-1/89 issued by Department of Revenue under sub-section (1) of section 52A NDPS Act specifically provides that all the drugs shall be properly classified, carefully weighed and sampled on the spot of seizure. Similarly, Clause no.2.2 of the said standing order provides that the samples shall be drawn from the recovered contraband in duplicate on the spot of recovery itself. Therefore, it is not the mandate of law that the samples can only be drawn in the presence of a Magistrate and not otherwise. Further, in the case at hand, I am of the considered opinion that once the FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 23 /28 prosecution has conclusively established that the processual sanctity of seizing the contraband and its safe transit to the FSL has not been compromised then under such circumstances peripheral issues viz keeping the samples in small transparent polythene pouches and preparing the cloth pullanda instead of keeping the polythene pouches in the envelope or non-sending of the test memos to the FSL would not go to the root of the matter and the contention is found to be meritless. As far as non- preservation of the wrappers in terms of Clause no.2.13 is concerned, the black colour polythene bag alongwith the transparent polythene bag containing the recovered contraband Ex.P-2 has been duly proved on record. Thus, I cannot but disagree with the Ld Counsel for the accused that the recovery in the instant matter has been effected in violation of Section 52A of NDPS Act or standing order no.1/89.
(III) INFIRMITIES POINTED OUT IN THE MALKHANA REGISTER:-
It is submitted that in the malkhana register Ex.PW-1/A, there is no signatures of the person receiving the contraband for the purpose of taking it to the FSL. It is thus submitted that it cannot be presumed that to whom the contraband was entrusted and a shadow of doubt is cast upon the prosecution case. It is similarly pointed out that in road certificate Ex.PW-1/B there is no time mentioned with respect to the dispatch of the contraband to CFSL.
In the case at hand, from the testimony of MHC(M) HC Jag Narain(PW-1) and the testimony of HC Mahesh Kumar FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 24 /28 (PW-3), it is established on record that on 05.05.2015, HC Mahesh Kumar collected the sample, FSL Form, copy of the FIR and copy of the seizure memo from HC Jag Narain(PW-1) for depositing the same with FSL Rohini. Dr Subhra Kumar(PW-10) corroborates the receipt of sealed cloth parcel on 05.05.2015 in FSL Rohini. It is categorically testified by Dr Subhra Kumar (PW-10) that the seals were found intact and tallied as per forwarding authority specimen seal. Thus, the aforesaid lapses in maintaining the record by the MHC(M) shall not go to the root of the matter.
(IV) DISCREPANCIES WITH RESPECT TO THE FIELD TESTING KIT:-
It is further pointed out that it is mandatory to prove on record the inventory of the field testing kit. It is pointed out that Ct Shani Kumar @ Sunny Kumar (PW-4) admits that no inventory receipt was prepared by IO in his presence. It is further submitted that IO claims that he used his personal kit and thus the same cannot be relied upon as he should have used the official kit and not the personal kit. It is thus submitted that accused deserves to be acquitted. Ld. Defence Counsel has also placed strong reliance upon case titled as K. Mohanan Vs State of Kerala: (2000) 10 SCC 222.
Ld. Defence Counsel has failed to point out any mandatory provision requiring any inventory /receipt of the field testing kit to be mandatorily prepared and proved on record failing which the entire prosecution case needs to be discarded. In my considered opinion, there is neither any mandatory requirement FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 25 /28 of preparing/proving the inventory/receipt for the field testing kit nor its non-production before the court shall have any bearings upon the merits of the case. The contention is taken on record to be considered and rejected. Further, use of the word 'personal' by SI Rajni Kant(PW-11) merely signifies the fact that he used the IO kit assigned to him by the department and nothing more than that. In his testimony, SI Rajni Kant has specifically deposed that he took IO kit, field testing kit and electronic weighing machine from the office and thereafter left for the spot. In his cross examination, he has specifically deposed that the IO kit is tailor made as per the requirement of each case prior to leaving for raid. He further went on to testify that the entries in register were made when the field testing kit was assigned to him. Further, even if we accept the contention for the sake of argument that the IO used his personal kit and not the official kit issued to him by the office the same would not affect the merits of the case. Except for a bald argument that the SI Rajni Kant has failed to reveal the measure of the sample used by him, Ld. Defence Counsel has failed to point out any taint attached with the test conducted by the IO. Furthermore, in light of the conclusive finding in the FSL result vide report Ex.PW-9/B there remains no doubt with respect to the nature of the recovered contraband. (V) ARGUMENTS ON THE WEIGHING MACHINE:-
Ld. Defence Counsel has attempted to attack the recovered contraband articles on the ground that the weighing machines have not been duly calibrated as per the government rules and regulations which requires verifications after every 24 months.
FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 26 /28 There is nothing on record to suggest that the weighing machine was non-calibrated or faulty in nature. Rather to the contrary, illustration (e) appended with Section 114 of The Indian Evidence Act permits the court to draw a presumption in favour of the prosecution whereby all the official Acts are presumed to be regularly performed. Consequently, if the defence Counsel had any doubts about the faulty nature of the weighing machine, nothing prevented him from summoning the said weighing machine in court to highlight the error and discharge the onus placed upon him under Section 114 r/w Section 102 of The Indian Evidence Act. Having failed to discharge the onus placed upon him, the accused cannot now attack the prosecution case for his own failures/omissions. Thus, I do not find any merits in the said contention.
(VI) MINOR INCONSISTENCIES, INFIRMITIES, DISCREPANCIES IN THE PROSECUTION CASE:-
It is further pointed out that there is no seal handing over/ taking over memo proved on record. It is submitted that the prosecution has failed to prove that what measure of the recovered quantity was tested by the IO at the spot.
Admittedly, it was desirable for the prosecution to prove on record the seal handing over/taking over memo. However, once it is established on record that the purity of the process has not been compromised then the defence cannot claim to have earn some brownie points on account of the lapses of the investigating officer. Reliance is placed upon C. Muniappan & Ors. Vs. State of Tamil Nadu 2010 (10) SCC 567 and Sardul FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 27 /28 Singh Vs. State of Haryana in (2002) 8 SCC 372.
Further, with respect to the second contention regarding the measure of the quantity used for testing by the IO, suffice it would be to observe that it is too insignificant a matter requiring any consideration at all. The same is taken on record to be rejected.
H. CONCLUSION
31. By examining the aforesaid 11 witnesses in support of its case, prosecution has proved its case against accused beyond all reasonable doubts. The prosecution has also proved that all mandatory provision of NDPS Act have been duly complied with in this case and there is no illegality/irregularity in compliance of the same.
32. The FSL Result conclusively proved that the recovered contraband was Heroin.
33. In the given facts and circumstances and considering the evidence, accused Vijay @ Kale is held guilty and is convicted for the offence punishable under section 21(c) of the NDPS Act.
34. Ordered accordingly. Digitally signed by DHARMENDER DHARMENDER RANA RANA Date: 2023.01.24 Announced in Open Court 13:19:19 +0530 On 24th January 2023 (Dharmender Rana) Spl. Judge, NDPS, Central, Tis Hazari Courts: Delhi FIR no.66/2015 SC NO.64/2015 State Vs Vijay @ Kale Pages 28 /28