Delhi District Court
State vs 1. Farik on 30 May, 2014
IN THE COURT OF SH. SANJAY SHARMA: SPECIAL JUDGE(NDPS)/ ADDL. SESSIONS JUDGE (NORTHEAST) : KARKARDOOMA COURTS, DELHI SC : 02/2012 FIR : 206/2011 PS : Crime Branch Under Section : 21 (c) /29 NDPS Act Case ID : 02402R0014132012 State Versus 1. Farik S/o Islam R/o Village Bopura, PSDaughat, DistrictBaghpat, U.P. 2. Shamshad S/o Santra R/o Village Gaindpura, PSDaughat, DistrictBaghpat, U.P. Date of Institution : 16.01.2012 Date of hearing Final Arguments : 21.05.2012 Date of Judgment : 30.05.2014 J U D G M E N TFIR No. 206/2011, State Vs. Farik & Anr. Page 1/48
1. The case of the prosecution, as stated in the chargesheet, is that on 02.08.2011 at about 6.45 a.m., SI Satyawan received a secret information at Narcotics Cell, Shakarpur, Delhi that Zahid, resident of Loni, Ghaziabad, U.P., in association with his uncle Shamshad and brother Farik was supplying 'heroin' in Delhi and Ghaziabad, U.P and Zahid was procuring 'heroin' from Tara Chand, a resident of Bheelwara, Rajasthan, through Shamshad and Farik, and Shamshad and Farik would reach at about 8.30 a.m. to 9.30 a.m. in front of Hanuman Mandir, near Loni flyover, Gokal Puri, Delhi after procuring 'heroin' from Rajasthan and from there, Zahid alongwith Shamshad and Farik would be going somewhere to supply 'heroin' and if raided, they could be apprehended with 'heroin'. SI Satyawan satisfied himself about secret information. At about 7.00 a.m., SI Satyawan produced secret informer before Inspector Kuldeep Singh, Narcotics Cell, Shakarpur, Delhi and briefed him about secret information. Inspector Kuldeep Singh satisfied himself about secret information and thereafter, he intimated Sh. Bir Singh, ACP/N&CP about secret information through telephone at his residence who directed him to immediately conduct a raid and take appropriate action.
FIR No. 206/2011, State Vs. Farik & Anr. Page 2/48
2. It was further case of the prosecution that at about 7.15 a.m., SI Satyawan reduced secret information into writing vide DD No. 5 and a copy thereof was submitted to Inspector Kuldeep Singh and constituted a raiding team comprising HC Om Prakash, HC Joginder, Ct. Yogesh, Ct. Sohan Pal and briefed them about secret information. At about 7.30 a.m., SI Satyawan collected IO bag, field testing kit and electronic scale and he alongwith members of raiding team and secret informer proceeded to the spot in an official vehicle bearing registration No. DL 1CM 4228 which was being driven by HC Abdul Hakim vide departure entry DD No. 6. On the way, SI Satyawan made request to 45 public persons in front of PSShakarpur, Cremation Ground, Geeta Colony and at the spot to join the raiding team but none of them agreed and they proceeded on their way without disclosing their names and addresses. At 8.20 a.m., SI Satyawan alongwith raiding team reached near Loni flyover and he positioned them around the spot of information.
3. It was further case of the prosecution that at about 8.45 a.m., accused Farik who was carrying a navy blue colour bag on his left shoulder and Shamshad were seen coming from the side of Durga Puri Chowk after crossing Loni flyover. Secret informer identified them as Farik and Shamshad and thereafter, he left the spot. FIR No. 206/2011, State Vs. Farik & Anr. Page 3/48
4. It was further case of the prosecution that accused Farik and Shamshad stood near the Mandir and were talking in low voice and were waiting for someone. After 1015 minutes, accused Farik and Shamshad started moving towards Loni and thereafter, at about 9.00 a.m., SI Satyawan alongwith his team apprehended them. He disclosed them identity of the members of the raiding team and secret information received by him. He explained them their legal rights and served carbon copy of notice U/s 50 of the Narcotics Drugs and Psychotropic Substances, Act, 1985 (hereinafter referred to as "the NDPS Act") upon each of them. Accused Shamshad and Farik stated that they were illiterate and therefore, the contents of the notice were read over and explained to them. They were explained meaning of a Gazetted Officer or a Magistrate. Both the accused refused to exercise their rights after understanding their legal rights. SI Satyawan recorded their refusal on the original notice as stated by accused Farik and Shamshad and it was also read over to them. As an acknowledgment thereof, accused Farik signed his refusal in 'Hindi' whereas Shamshad put his left thumb impressions (LTI) thereon. FIR No. 206/2011, State Vs. Farik & Anr. Page 4/48
5. It was further case of the prosecution that SI Satyawan requested 810 public persons who had assembled at the spot, after disclosing them the facts of the case to join the raiding team but they refused to join raiding team and proceeded from the spot without disclosing their names and addresses. Thereafter, SI Satyawan conducted cursory search of accused Farik who was carrying a navy blue colour bag on his left shoulder. SI Satyawan took the bag in his possession and checked it. He opened the main zip of the said bag and found one used shirt and trouser and kurtapyjama and thereunder, a big transparent polythene bag tied with a rubber band. The said polythene bag was containing 'matiala' colour powder. He taken out the said polythene bag and opened it after removing rubber band and thereafter, he checked the said powder with field testing kit and it found to be 'heroin'. He weighed the recovered 'heroin' with polythene on an electronic weighing scale and it weighed 2 kgm. and thereafter, he had taken 2 samples of 5 grams each from the said 'heroin' and kept them in small polythene pouches and converted them into two cloth parcels which were marked as MarkA & B and the remaining 'heroin' in the said polythene bag was kept in the said bag which was converted into a cloth parcel and marked as MarkC. FIR No. 206/2011, State Vs. Farik & Anr. Page 5/48
6. It was further case of the prosecution that SI Satyawan filled FSL form and affixed his one seal '7BPS NB DELHI' on each of the said three cloth parcels and FSL form, and seal after use was handed over to HC Om Prakash. He had taken into possession the said three sealed cloth parcels and FSL form vide seizure memo. Thereafter, He conducted cursory search of Shamshad but nothing incriminating was recovered from him and therefore, he prepared a nonerecovery memo. He prepared a rukka and handed it over to HC Joginder alongwith the said three sealed cloth parcels, FSL form and carbon copy of seizure memo with the direction to hand over rukka to Duty Officer and the said three sealed cloth parcels, FSL form and carbon copy of seizure memo to Insp. C.R. Meena, SHO, PSCrime Branch, Nehru Place, New Delhi. Thereafter, HC Joginder handed over the rukka to Duty Officer and the said three sealed cloth parcels Mark, A, B, C, FSL form and carbon copy of the seizure memo to Insp. C.R. Meena, who affixed his counterseal 'CRM' on the said three sealed cloth parcels and FSL form and after enquiring particulars of FIR, he written the said particulars on the said three sealed cloth parcels, FSL Form and carbon copy of seizure memo and thereafter, he called HC Jag Narain MHC(M) to his office and handed him over the said three sealed cloth parcels, FSL form and a carbon copy of seizure memo. FIR No. 206/2011, State Vs. Farik & Anr. Page 6/48
7. It was further case of the prosecution that PW2 HC Jag Narain MHC (M) made an entry regarding deposit of the said articles in the Malkhana in the Register No. 19 and in that regard, Insp. C.R. Meena, SHO, PSCrime Branch, Nehru Place, New Delhi made an entry at 3.10 p.m. vide DD No. 8 and after registration of FIR, on the direction of ACP/N&CP, further investigation of the case was assigned to ASI Devender Singh who reached at the spot where SI Satyawan briefed him about the facts of the case and he prepared site plan at his instance and recorded statement of HC Om Prakash. ASI Davender Singh arrested Farik and Shamshad and conducted their personal search. He recorded their disclosure statements and he alongwith both accused returned to PSCrime Branch, Nehru Place, New Delhi where he deposited the personal search articles of accused persons in the Malkhana and recorded statement of Insp. C.R. Meena and MHC (M) and thereafter, he reached at Narcotics Cell, Shakarpur, Delhi where he produced accused Farik and Shamshad before Inspector Kuldeep Singh, Narcotics Cell, Shakarpur, Delhi and recorded statement of witnesses. SI Satyawan and ASI Davender Singh prepared Special Reports U/s 57 of the NDPS Act regarding seizure of the contraband and submitted it to Inspector Kuldeep Singh, Narcotics Cell, Shakarpur, Delhi who forwarded it to senior officers. FIR No. 206/2011, State Vs. Farik & Anr. Page 7/48
8. It was further case of the prosecution that during the investigation, nothing could be ascertained about source of supply. On 11.08.2011, sample parcel MarkA was sent to FSL, Rohini for chemical examination and it was found containing 11.91% diacetylmorphine ('heroin') and 6.24% phenobarbital. After investigation, accused Farik and Shamshad were chargesheeted for committing offences U/s 21/29 of the NDPS Act.
9. During the trial, the prosecution examined 10 witnesses.
10. PW1 ASI Suman was the Duty Officer at PS Crime Branch, Nehru Place, New Delhi. On 02.08.2011 at 2.30 p.m., she recorded Kayami vide DD No. 7 Ex.PW1/A on the basis of rukka sent by PW9 SI Satyawan through PW8 HC Joginder and thereafter, she recorded case FIR Ex.PW1/B and made endorsement on rukka which is Ex.PW1/C. She recorded Bandi vide DD No. 9 Ex.PW1/D and further investigation of case was assigned to PW4 ASI Devender Singh. She brought Rojnamcha register containing DD No. 7, 8 & 9 and photocopies of relevant pages of the said register containing DD No. 7, 8 & 9 are Ex.PW1/E, Ex.PW1/F and Ex.PW1/G respectively. She stated that DD No. 7 & 9 were recorded in her handwriting whereas DD No. 8 was recorded by PW7 Inspector C.R. Meena. FIR No. 206/2011, State Vs. Farik & Anr. Page 8/48
11. PW2 HC Jag Narain was MHC(M) at PS Crime Branch, Nehru Place, New Delhi. On 02.08.2011 at about 3.00 p.m., PW7 Inspector C.R. Meena called him to his office alongwith Register No. 19 and handed him over three cloth parcels and FSL form duly sealed with seal of '7BPS NB DELHI' and 'CRM' and one carbon copy of seizure memo. He deposited the said three sealed cloth parcels, FSL form and a carbon copy of seizure memo in the Malkhana vide serial No. 1211 of Register No. 19 and a copy of relevant page is Ex.PW2/A. He stated that on the same day, PW4 ASI Davender Singh deposited with him articles of personal search of Farik and Shamshad vide entry No. 1212 and a copy of relevant page is Ex.PW2/B. On 11.08.2011, he handed over sample parcel MarkA alongwith FSL form to PW3 HC Charan Singh vide RC No. 382/81 Ex.PW2/C for being taken to FSL and thereafter, he received an acknowledgment receipt Ex.PW2/D issued by FSL, Rohini and made an entry to this effect in register No. 19 and a copy thereof is Ex.PW2/E. On 29.11.2011, he received one parcel duly sealed with the seal having impression 'APS FSL DELHI' with FSL result which he handed over to PW4 ASI Devender Singh and made an entry in register No. 19 in this regard and a copy of relevant page is Ex.PW2/F. He stated that the seals of the parcels and documents were remained intact till they were in his possession. FIR No. 206/2011, State Vs. Farik & Anr. Page 9/48
12. PW3 HC Charan Singh deposited sample parcel MarkA and FSL form duly sealed with the seals '7BPS NB DELHI' and 'CRM' to FSL, Rohini vide RC No. 382/21 Ex.PW2/C on 11.08.2011. He handed over acknowledgment receipt Ex.PW2/D issued by FSL, Rohini to MHC (M). He stated that the seals of the parcels remained intact till they remained in his possession.
13. PW4 ASI Davender Singh was Investigating Officer. On 02.08.2011 at 3.15 p.m., he proceeded to the spot i.e. near Hanuman Mandir, Loni Gol Chakkar in the said official vehicle. He reached at the spot at about 4.00 p.m. where SI Satyawan and other members of the raiding team met him. PW9 SI Satyawan handed him over the documents and custody of Farik and Shamshad and he prepared site plan Ex.PW4/A and recorded statement of PW6 HC Om Prakash. He interrogated Farik & Shamshad and arrested them vide arrest memos Ex.PW4/B & Ex.PW4/C and conducted their personal search vide memos Ex.PW4/D & Ex.PW4/E. He stated that in the personal search of Farik, one carbon copy of notice U/s 50 of the NDPS Act Ex.PW4/L, one bus ticket of Namdev Travels and cash amount of Rs. 300/ were recovered and in the personal search of the Shamshad, one carbon copy of notice U/s 50 NDPS Act Ex.PW4/M, one bus ticket of Vikas Travels and cash amount of Rs.350/ were recovered. FIR No. 206/2011, State Vs. Farik & Anr. Page 10/48
14. According to PW4 ASI Davender Singh, he recorded disclosure statements of Farik and Shamshad. At about 7.05 p.m., he proceeded from the spot and at 8.35 p.m. he reached at PSCrime Branch, Nehru Place, New Delhi where he recorded statement of PW7 Inspector C.R. Meena and PW2 HC Jag Narain, MHC (M). At 10.00 p.m., he produced accused Farik and Shamshad before PW10 Inspector Kuldeep, Incharge, Narcotics Cell, Shakarpur, Delhi. He recorded his arrival entry to the Narcotics Cell, Shakarpur, Delhi vide DD No. 28 dated 02.08.201 at 10.10 p.m. and a copy thereof is Ex.PW4/H. He stated that on 03.08.2011, he submitted the Special Report U/s 57 NDPS Act to PW10 Inspector Kuldeep Singh who forwarded it to the senior officers and the office copy of the said report is Ex.PW4/J. He stated that he received the FSL result from PW2 HC Jag Narain, MHC(M) and submitted it to the Court. FSL result is Ex.PW4/K.
15. PW4 ASI Davender Singh, in his crossexamination, stated that he had not called any public person at the spot to join proceedings despite their availability. He stated that he had not deposited two bus tickets recovered from accused Farik and Shamshad in the Malkhana and he filed the said tickets alongwith challan.
FIR No. 206/2011, State Vs. Farik & Anr. Page 11/48
16. PW5 HC Om Prakash was a Reader to the ACP, Narcotics Cell, Shakarpur, Delhi. He stated that on 02.08.2011, a true copy of DD No. 5 Ex.PW5/A was received in the office of ACP, Narcotics Cell, Shakarpur, Delhi vide diary No. 1510 dated 02.08.2011 and he produced it before Sh. Bir Singh, ACP, Narcotics Cell who signed it at point A. He stated that on 03.08.2011, two Special Reports U/s 57 of the NDPS Act Ex.PW5/B & Ex.PW5/C were received in office of ACP vide diary No. 1523 and 1524 dated 03.08.2011. He stated that he had placed the said reports before Sh. Bir Singh, ACP, Narcotics Cell who signed at point A. He identified signatures of ACP Bir Singh. He brought original diary register and a photocopy of relevant page of the said register containing the said entries Serial No. 1510, 1523 and 1524 is Ex.PW5/D. He stated that the said entries are in his handwriting.
17. PW6 HC Om Prakash was a member of the reading team. He corroborated PW9 SI Satyawan regarding receipt of secret information, proceeding to the spot, apprehension of the accused Farik and Shamshad, service of notices U/s. 50 of the NDPS Act on accused Farik and Shamshad, recording of their refusal and seizure of 2 kg. 'heroin' from blue colour bag carried by accused Farik. FIR No. 206/2011, State Vs. Farik & Anr. Page 12/48
18. PW6 HC Om Prakash proved preparation of cloth parcels and FSL form and marking & sealing thereof by PW9 SI Satyawan, preparation of rukka and investigation by PW4 ASI Davender Singh after registration of FIR. He proved original notice U/s. 50 of the NDPS Act Ex.PW6/A and Ex.PW6/B respectively which were served on Farik and Shamshad. He proved refusal of Farik and Shamshad which are Ex.PW6/C & Ex.PW6/D respectively. He proved seizure memo Ex.PW6/E and nonerecovery memo Ex.PW6/F. He proved carbon copy of notice U/s. 50 of the NDPS Act Ex.PW4/L which was served on Farik and carbon copy of notice U/s. 50 of the NDPS Act Ex.PW4/M which was served on Shamshad. He received seal after use from PW9 ASI Satyawan. He identified recovered 'heroin' which was kept in a cloth parcel Mark C duly sealed with the seals having impression '7BPS NB DELHI' & 'CRM' as Ex.P3. He identified remnants of the sample parcel Mark A, which was sent to FSL, Rohini, as the part of the 'heroin' which was recovered from accused Farik and it is Ex.P5. Cloth parcel Mark B was produced before the Court in duly sealed condition bearing seals having impression '7BPS NB DELHI' & 'CRM' and he identified the said cloth parcel containing 'heroin' recovered from accused Farik and it is Ex.P7. FIR No. 206/2011, State Vs. Farik & Anr. Page 13/48
19. PW6 HC Om Prakash, in his crossexamination, stated that there was a bus stand near Hanuman Temple and some public persons were present at the bus stand. He has stated that that no notice was served upon the public persons who refused to join the investigation. He stated that he returned seal to PW9 SI Satyawan on 12.08.2011.
20. PW7 Insp. C.R. Meena was SHO, PS Crime Branch, Nehru Place, New Delhi. On 02.08.2011 at 2.35 p.m., he received three cloth parcels Mark A, B, C and one FSL form sealed with seal of '7BPS NB DELHI' and one carbon copy of seizure memo from PW8 HC Joginder and thereafter, he affixed his counterseal having impression 'CRM' on all three cloth parcels and FSL form. He had written, after enquiring FIR No. from Duty Officer, on the three cloth parcels, FSL form and carbon copy of seizure memo and thereafter, he called MHC(M) to his office alongwith register No. 19 and handed him over the three sealed parcels Mark A, B, C, FSL form and carbon copy of seizure memo who entered particulars thereof in the register No. 19 and he signed the said register. He recorded DD No. 8 Ex.PW7/A at 3.10 p.m., regarding deposit of case property in Malkhana. He stated that on 11.08.2011, sample parcel alognwith documents was sent to FSL, Rohini through PW3 HC Charan Singh. FIR No. 206/2011, State Vs. Farik & Anr. Page 14/48
21. PW8 HC Joginder Singh was also a member of the raiding team. He corroborated testimony of PW6 HC Om Prakash and PW9 SI Satyawan on material aspects. He had taken rukka and three sealed parcels, sealed FSL form and carbon copy of seizure memo to PS Crime Branch, Nehru Place, New Delhi where he handed over rukka to PW1 ASI Suman, Duty Officer and three sealed parcels, sealed FSL form and carbon copy of seizure memo to PW7 Insp. C.R. Meena. he identified recovered 'heroin' which was produced before the Court. This witness was not cross examined by the defence.
22. PW9 SI Satyawan was Incharge of the raiding team. He is a material witness. It would be appropriate to discuss his evidence in detail. According to him, on 02.08.2011 at 6.45 a.m., he received a secret information that one person namely Zahid, resident of Loni, Ghaziabad, U.P., and who alongwith his uncle Shamshad and brother Farik used to supply 'heroin' in the area of Delhi and Ghaziabad and Shamshad and Farik would come from Rajasthan after procuring 'heroin' from Tara Chand and would reach at Loni Flyover, Hanuman Mandir Chowk where Zahid would also come and they would supply 'heroin' to someone in between 8.30 a.m. and 9.30 a.m. FIR No. 206/2011, State Vs. Farik & Anr. Page 15/48
23. PW9 SI Satyawan produced secret informer before PW10 Insp. Kuldeep Singh who made enquiry from secret informer and informed ACP Bir Singh regarding secret information who directed him to take action. PW9 SI Satyawan recorded DD No. 5 Ex.PW5/A at 7.15 a.m. regarding receipt of secret information and a copy thereof was placed before PW10 Insp. Kuldeep Singh who forwarded it to ACP concerned. On the instruction of PW10 Insp. Kuldeep Singh, he prepared raiding team comprising of PW6 HC Om Prakash, PW8 HC Joginder, HC Mukesh, Ct. Yogesh and Ct. Sohan Pal and briefed them about secret information and thereafter, he collected IO bag, field testing kit and electronic weighing machine. He recorded departure entry vide DD No. 6 Ex.PW9/C at about 7.30 a.m. and proceeded alongwith the raiding team and secret informer to the spot in official vehicle bearing registration No. DL 1CM 4228 which was being driven by HC Abdul Haqim. At about 8.20 a.m., they reached at the spot. On the way, he requested public persons to join raiding team but they refused and left the spot without disclosing their names and addresses and after reaching at the spot, he again requested public persons to join the raiding team but they refused and thereafter, he again briefed the members of the raiding team and positioned them near Hanuman Temple, Loni Flyover, Loni Road, Delhi. FIR No. 206/2011, State Vs. Farik & Anr. Page 16/48
24. PW9 SI Satyawan further stated that at about 8.45 a.m., two persons reached at the spot from Durgapuri side and one of them was having a navy blue colour bag on his shoulder and the secret informer identified him as Fairk and the other person, who wearing kurtapyjama, was identified as Shamshad and thereafter, secret informer left the spot. He stated that the said persons waited at the spot for 1015 minutes but nobody reached there and thereafter, they started moving from the spot and at that time, accused Shamshad and Fariq were apprehended. He disclosed identity of members of raiding team and secret information to accused Farik and Shamshad. He stated that had had apprised the accused persons that their search was to be conducted and if they wanted their search could be conducted in the presence of a Gazetted Officer or a Magistrate. He stated that he explained their legal rights to accused persons and also offered search of members of raiding team and official vehicle but both accused refused his offers and thereafter, he prepared two notices U/s. 50 of the NDPS Act and carbon copy of the said notices were served on Farik and Shamshad. He stated that original notice Ex.PW6/A which was served on accused Farik bears his signatures at point C and signature of accused Farik at point X. FIR No. 206/2011, State Vs. Farik & Anr. Page 17/48
25. PW9 SI Satyawan further stated that original notice U/s. 50 of the NDPS Act Ex.PW6/B which was served on accused Shamshad bears his signature at point C and left thumb impression (LTI) of accused at point X. He stated that he recorded refusal of accused Farik, as requested by the said accused, on the said notice, which is Ex.PW6/C bearing his signature at point C and signature of accused Farik at point X. He stated that he recorded refusal of accused Shamshad which is Ex.PW6/D bearing his signature at point C and LTI of accused Shamshad at point X. He stated that he again made request to 810 public persons who were present at the spot to join the proceedings but they refused and left the spot without disclosing their names and addresses and thereafter, he conducted search of accused Farik and taken the navy blue colour bag from his shoulder and opened the chain of the bag and found one pantshirt and one kurtapyjama and a transparent polythene packets containing brown colour powder. He stated that he had taken out polythene packet and opened it and tested the brown colour powder with the help of field testing kit and it found to be 'heroin'. He stated that recovered 'heroin' was weighed with an electronic machine and it found to be 2 kg. with polythene.
FIR No. 206/2011, State Vs. Farik & Anr. Page 18/48
26. PW9 SI Satyawan further stated that he had taken out two samples of 5 grams each from recovered 'heroin' and kept them into two transparent polythene packets and converted them into cloth parcels and marked them as Mark A & B and remaining 'heroin' in the transparent polythene was put in the said bag alognwith kurta payjama & pantshirt and converted it into a cloth parcel and marked it as Mark C and thereafter, he filled FSL form. He sealed all the three sealed parcels Mark A, B, C and FSL form with his seal '7BPS NB DELHI' and handed it over after use to PW6 HC Om Prakash. He had taken into possession the said three sealed cloth parcels and FSL form vide seizure memo Ex.PW6/E. He stated that he conducted search of accused Shamshad but nothing incriminating was recovered from him and he prepared nonerecovery memo Ex.PW6/F in that regard. He stated that he got the rukka Ex.PW9/A prepared through Ct. Sohan Pal and handed it over alongwith three sealed parcels Mark A, B, C, & FSL form and carbon copy of seizure memo to PW8 HC Joginder with the direction to hand over rukka to Duty Officer and three sealed parcels Mark A, B, C and FSL form and carbon copy of the seizure memo to SHO. He stated that at about 1.00 p.m., PW8 HC Joginder left the spot alongwith the above articles in the official vehicle. FIR No. 206/2011, State Vs. Farik & Anr. Page 19/48
27. PW9 SI Satyawan further stated that at about 4.00 p.m., PW4 ASI Davender alognwith HC Laxman reached at the spot in the official vehicle which was being driven by HC Abdul Haqim and he handed him over the documents prepared by him and custody of both accused and further, PW4 ASI Davender Singh prepared site plan Ex.PW4/A at his instance and recorded statement of PW6 HC Om Prakash. He stated that after interrogation, PW4 ASI Davender Singh arrested Farik vide arrest memo Ex.PW4/B and conducted his personal search vide memo Ex.PW4/D and Shamshad was arrested vide arrest memo Ex.PW4/C and his personal search was conducted vide memo Ex.PW4/E. He stated that they left spot at 7.05 p.m. and reached at PS Crime Branch. He stated that on 03.08.2011, he prepared special report U/s. 57 of the NDPS Act Ex.PW5/B and handed it over to PW10 Insp. Kuldeep Singh who forwarded it to senior officers. He identified recovered 'heroin' which was converted into cloth parcel Mark C as the same 'heroin' which was recovered from accused Farik as Ex.P3. He identified remnants of sample Mark A as Ex.P5 and the sample parcel B which was produced before the Court duly sealed with seal of '7BPS NB DELHI' and 'CRM' as the sample parcel containing 'heroin' recovered from Farik as Ex.P7. FIR No. 206/2011, State Vs. Farik & Anr. Page 20/48
28. PW9 SI Satyawan proved carbon copy of the notices served upon Farik and Shamshad which are Ex.PW4/L & Ex.PW4/M respectively. In his cross examination, PW9 SI Satyawan stated that no Gazetted Officer was called at the spot. He stated that he started preparing rukka at about 11.30 a.m.. He stated that he explained the meaning of Gazetted Officer to the accused persons. He stated that the spot was situated in a congested area and public persons were present near the temple. He stated that he had not asked the priest of the temple to join the investigation. He stated that accused Farik was walking ahead of accused Shamshad. He stated that he received back his seal from PW6 HC Om Prakash on 12.08.2011. He stated that he had not prepared any memo regarding handing over or receiving back the seal from him. He stated that he handed over his special report U/s. 57 of the NDPS Act to PW10 Insp. Kuldeep Singh on 03.08.2011 at about 10.00 a.m. He denied the suggestion that no recovery was effected from accused Farik. He also denied the suggestion that no secret information was received by him and the accused persons have been falsely implicated in this case after lifting from their residence at Loni.
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29. PW10 Insp. Kuldeep Singh was posted at Narcotics Cell, Sharkarpur, Delhi. On 02.08.2011 at about 7.00 a.m., PW9 SI Satyawan alognwith secret informer came to his office and he intimated him that he had received a secret information that one Zahid resident of Loni, Ghaziabad, U.P. alongwith his brother Farik and uncle Shamshad were supplying 'heroin' after procuring it from one Tara Chand, resident of Bhilwara, Rajasthan and further, Farik and Shamshad would come near Hanuman Temple, Loni in the area of Gokalpuri between 8.30 a.m. to 9.30 a.m. alongwith 'heroin' and from there, the said persons alongwith Zahid would be going somewhere to deliver the consignment of 'heroin'. He made enquiries from the secret informer and thereafter, he conveyed the said information to ACP Bir Singh, Narcotics Cell, Shakarpur, Delhi through telephone at his residence. The said ACP directed him to conduct raid and thereafter, PW9 SI Satyawan recorded DD No.5 at about 7.15 a.m. and produced a copy thereof before him. He forwarded the said copy to ACP Bir Singh, Narcotics Cell, Shakarpur, Delhi and a copy thereof is exhibited as Ex.PW5/A bearing his signatures at point B and a carbon copy thereof is Ex.PW10/A bearing his endorsement and signature at point A. FIR No. 206/2011, State Vs. Farik & Anr. Page 22/48
30. PW10 Insp. Kuldeep Singh further stated that PW9 SI Satyawan organized a raiding team and proceeded to the spot at about 7.30 a.m.. He stated that at about 10.00 p.m., PW4 ASI Davender Singh produced accused Farik and Shamshad before him in his office and he made enquiries from them and satisfied himself about their arrest. He stated that on 03.08.2011, PW9 SI Satyawan and PW4 ASI Davender Singh submitted special reports U/s. 57 of the NDPS Act to him which he had forwarded to ACP, Narcotics Cell, Shakarpur, Delhi. Original reports are Ex.PW5/B and Ex.PW5/C bearing his signatures and endorsement at point B. Office copy of the reports U/s. 57 of the NDPS Act submitted by PW9 SI Satyawan and PW4 ASI Davender Singh are Ex.PW10/B and Ex.PW4/J bearing his endorsement and signatures at point A & B respectively.
31. I have heard arguments of Sh. I.H. Siddiqui, Ld. Addl. PP for the State, Sh. S.K. Ahluwalia, Advocate for the accused Farik and Sh. Parveen Kumar Mishra, Advocate for the accused Shamshad and carefully examined and analyzed the evidence on record.
32. Before examining the merits of the case of the prosecution, it would be appropriate to summarized arguments submitted by Ld. Addl. PP for the State and Ld. defence counsel. FIR No. 206/2011, State Vs. Farik & Anr. Page 23/48
33. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that PW9 SI Satyawan was Incharge of the raiding team. He submitted that he had received the secret information and he had produced the secret informer before PW10 Insp. Kuldeep Singh. He submitted that PW10 Insp. Kuldeep Singh has proved that the secret information was given to him and conveyed it to ACP Bir Singh, Narcotics Cell, Shakarpur, Delhi through telephone at his residence and on his direction, raiding party was organized. He submitted that the secret information was reduced into writing by PW9 SI Satyawan vide DD No. 5 Ex.PW5/A and photocopy of rojnamcha register containing the said DD is Ex.PW9/B. He submitted that PW10 Insp. Kuldeep Singh forwarded the said information to ACP Bir Singh and PW5 HC Om Prakash has proved that the said information vide DD No. 5 was received in ACP office on 02.08.2011 vide diary No. 1510 and a copy thereof is Ex.PW5/D. He submitted that PW9 SI Satyawan made a departure entry while leaving the police station, Narcotics Cell, Shakarpur, Delhi vide DD No. 6 Ex.PW9/C and photocopy of DD register containing the said entry is Ex.PW9/D. He submitted that PW9 SI Satyawan made several efforts to join the public persons at three places but none of them agreed. FIR No. 206/2011, State Vs. Farik & Anr. Page 24/48
34. Ld. Addl. PP for the State submitted that non examination of independent witness, in these circumstances, is not fatal to the prosecution case. He submitted that PW9 SI Satyawan in his deposition proved that 2 kgm. 'heroin' was recovered from blue colour bag carried by accused Farik on his left shoulder. He submitted that accused Shamshad was a party to the conspiracy in so far as procuration, possession and supply of 'heroin' is concerned. He submitted that PW9 SI Satyawan proved that he had explained legal rights of being searched in the presence of a Gazetted Officer or a Magistrate to both the accused but they refused his offer. He submitted that PW9 SI Satyawan had recorded refusal of both the accused persons. He submitted that PW9 SI Satyawan has also proved that 2 kg. 'heroin' was recovered from accused Farik and 2 samples of 5 grams each were taken from there and converted into cloth parcels Mark A, B and C. He submitted that PW9 SI Satyawan duly affixed his seal on all the three parcels and FSL form and handed it over to PW8 HC Joginder who had taken it to PW7 Insp. C.R. Meena who also counter sealed the said three sealed parcels and FSL form with his seal and deposited it with PW2 HC Jag Narain, MHC(M) and who made an entry to this effect in the register No. 19. FIR No. 206/2011, State Vs. Farik & Anr. Page 25/48
35. Ld. Addl. PP for the State further submitted that FSL report Ex.PW4/A clearly proves that the sample seals on the FSL form and the sample parcel Mark A was found intact and therefore, possibility of the tampering with the sample seal has been ruled out. He submitted that PW6 HC Om Prakash and PW8 HC Joginder materially corroborated depositions of PW9 SI Satyawan. He submitted that there is no discrepancy in the depositions of the prosecution witnesses. He submitted that prosecution has been able to establish entire chain commencing from receipt of secret information to making of special report U/s. 57 of the NDPS Act. He submitted that provision of Section 50 of the NDPS Act is not applicable to the present case as the recovery was effected from a bag and not from person of accused Farik. He submitted that provision of Section 42, 55 and 57 of the NDPS Act are also complied with. He submitted that the prosecution has been able to prove charges against both accused.
36. Sh. S.K. Ahluwalia, Advocate for the accused Farik has submitted that the prosecution has failed to prove compliance of provisions of Section 42, 50, 55 and 57 of the NDPS Act. He submitted that formalities have been complied on paper and not in reality. He submitted that such a paper formality would not advance the caused of the prosecution.
FIR No. 206/2011, State Vs. Farik & Anr. Page 26/48
37. Sh. S.K. Ahluwalia, Advocate for accused Farik further submitted that ACP concerned has not been examined to prove the fact that he had received special reports U/s. 57 of the NDPS Act and further, he perused it and thereafter, he signed it. He submitted that mere examination of a reader from the office of ACP, Narcotics Cell, Sharkapur, Delhi is not sufficient to prove the fact of receipt as well as the fact that special reports U/s. 57 of the NDPS Act were seen by ACP concerned. He submitted that there is delay of 6 days in sending sample parcels to FSL, Rohini for chemical analysis in violation of NCB Guidelines prescribing timeline of 72 hours for sending sample parcels to FSL from the time of seizure. He submitted that the case of the prosecution is that brown colour powder was recovered from the accused Farik whereas the case property examined by FSL had lumps. He submitted that there was 10 % difference in weight of sample parcel allegedly prepared at the spot and sample parcel examined by FSL, Rohini. He submitted that FSL form has neither been produced nor summoned from FSL, Rohini and therefore, this Court had no occasion to match the seal appearing on sample parcels Mark A, B, C with the seals affixed on FSL form. He submitted that FSL report clearly shows that no FSL form was sent to FSL, Rohini and in fact that it was a forwarding letter.
FIR No. 206/2011, State Vs. Farik & Anr. Page 27/48
38. Sh. S.K. Ahluwalia, Advocate for accused Farik further submitted that the prosecution has failed to prove that FSL form was, in fact sent to FSL, Rohini. He submitted that no effort was made to join the public witnesses despite availability. He submitted that prosecution witnesses admitted that no notice was served upon any public person who refused to join search and seizure proceedings. He submitted that accused was arrested from a busy place and such absence of an independent witness raises strong doubt on the prosecution case. He submitted that accused persons were illiterate persons and according to the prosecution, their refusals/replies were recorded by PW9 SI Satyawan, and in the absence of a Gazetted Officer or a Magistrate, it cannot be assumed that their replies were correctly recorded by PW9 SI Satyawan. He submitted that no effort much less than adequate effort was made to produce the accused persons before a Gazetted Officer or a Magistrate. He submitted that prosecution has failed to prove that provisions contained in Section 50 were complied with. He submitted that refusals of both the accused persons are verbatim same and it is impossible that two persons would speak same words in same language and moreover, such a technical language where both the accused persons are illiterate. FIR No. 206/2011, State Vs. Farik & Anr. Page 28/48
39. Sh. S.K. Ahluwalia, Advocate for accused Farik finally submitted that entire proceedings were conducted in the police station and no recovery, in fact was made from accused Farik and therefore, accused Farik is entitled to be acquitted from the charges.
40. Sh. Parveen Kumar Mishra, Advocate for the accused Shamshad submitted that no recovery was effected from accused Shamshad. He submitted that there is no evidence on record to prove that accused Shamshad conspired or was a party to the criminal conspiracy or abetted accused Farik to commit any offence under the NDPS Act. He submitted that accused Shamshad was arrested from his house and framed in this case. He submitted that accused Shamshad is entitled to be acquitted from charges framed against him.
41. So far as contention regarding noncompliance of Section 42 of the NDPS Act is concerned, it has come on record that PW9 SI Satyawan received secret information at 6.45 a.m. and thereafter, he produced secret informer before PW10 Insp. Kuldeep Singh who forwarded the said information to ACP Bir Singh through telephone at his residence. PW9 SI Satyawan reduced secret information into writing vide DD No. 5 Ex.PW5/A and a copy of relevant page of the rojnamcha register containing the said DD No. 5 is Ex.PW9/B and a copy thereof was placed before PW10 Insp. Kuldeep Singh. FIR No. 206/2011, State Vs. Farik & Anr. Page 29/48
42. It has also come on record that PW10 Insp. Kuldeep Singh forwarded secret information to senior officers of police. The said DD No. 5 Ex.PW5/A was received by ACP office on 02.08.2011 vide diary No. 1510 dated 02.08.2011 and a copy of relevant page containing the said diary entry is Ex.PW5/D. The prosecution has been able to prove that secret information was duly reduced into writing and further, a copy thereof was sent to immediate superior officer within 72 hours and as such, provision of Section 42 (1) and (2) of the NDPS Act have been complied.
43. In so far as contention regarding noncompliance of Section 50 of the NDPS Act is concerned, it has come on record that PW9 SI Satyawan apprised accused Farik and Shamshad about their legal rights to be searched before a Gazetted Officer or a Magistrate. He explained the meaning of a Gazetted Officer to accused persons. He explained them about their legal rights. PW9 SI Satyawan has proved that he served carbon copy of notice U/s. 50 of the NDPS Act Ex.PW4/L and original thereof is Ex.PW6/A upon accused Farik and further, proved that he served carbon copy of notice U/s. 50 of the NDPS Act Ex.PW4/M and original thereof is Ex.PW6/B upon accused Shamshad.
FIR No. 206/2011, State Vs. Farik & Anr. Page 30/48 44 A perusal of notices U/s. 50 of the NDPS Act Ex.PW6/A and Ex.PW6/B clearly show that the accused persons were apprised that it was their legal right that if they desired, their search could be conducted in the presence of a Gazetted Officer or a Magistrate and further, such a Gazetted Officer or a Magistrate could be arranged. He has proved that accused persons understood their legal right. Accused Farik acknowledged the receipt of the said notice by signing the said notice in 'Hindi' at point X and accused Shamshad put his left thumb impression (LTI) at point X. However, they opted not to exercise their right and thereafter, PW9 SI Satyawan recorded their refusals in his hand writing on the original notices U/s. 50 of the NDPS Act which were Ex.PW6/C and Ex.PW6/D. Accused Farik signed the refusal at point X and accused Shamshad put his left thumb impression (LTI) at point X. In their statements U/s. 313 Cr.P.C., accused persons have not stated that the said notices were not read over or understood by them or they had given their option to be searched in the presence of a Gazetted Officer or a Magistrate. They have also not denied that the contents of the notice U/s. 50 of the NDPS Act Ex.PW6/A and Ex.PW6/B are not the same contents which were read over and explained to them. They also not denied that they did not sign the receipt of the notice U/s. 50 of the NDPS Act.
FIR No. 206/2011, State Vs. Farik & Anr. Page 31/48
45. Contention that accused persons are illiterate and it was not possible that they would have spoken the same words as recorded in their refusal is concerned, it can be stated that accused persons in their statement U/s. 313 Cr.PC. have not stated that the refusal recorded in Ex.PW6/C and Ex.PW6/D did not contain the words spoken by them, and further, that the refusal was not read over to them and they did not sign the receipt of the refusal at point X respectively on Ex.PW6/C and Ex.PW6/D. They have not stated that carbon copy of notices U/s. 50 of the NDPS Act Ex.PW4/L and Ex.PW4/M were not recovered during their personal search conducted by PW4 ASI Davender Singh.
46. In the opinion of this Court, in view of deposition of PW9 SI Satyawan and notices U/s. 50 of the NDPS Act Ex.PW6/A and Ex.PW6/B, this Court is of the considered opinion that PW9 SI Satyawan apprised both the accused persons that if they desired it was their legal right that their search should be conducted in the presence of a Gazetted Officer or a Magistrate. The prosecution has been able to prove compliance to the provision contained in Section 50 of the NDPS Act.
FIR No. 206/2011, State Vs. Farik & Anr. Page 32/48
47. So far as contention regarding noncompliance of Section 55 of the NDPS Act is concerned, it has come on record that PW9 SI Satyawan prepared cloth parcels Mark A, B, C and FSL form, and affixed his seal thereon and seized the said three cloth parcels containing recovered 'heroin' vide seizure memo Ex.PW6/E and further, the said three sealed cloth parcels, FSL form and a copy of seizure memo was submitted to PW7 Insp. C.R. Meena on 02.08.2011 at 3.35 p.m. It has also come on record that PW7 Insp. C.R. Meena, PS Crime Branch, Nehru Place, New Delhi affixed his counterseal 'CRM' on all the three sealed cloth parcels and FSL form sealed with the seal having impression '7BPS NB DELHI' and thereafter, he deposited all the sealed sample parcels Mark A, B, C, FSL form and a carbon copy of seizure memo with PW2 HC Jag Narain, MHC(M) of the police station and who made an entry at serial No. 1211 in register No. 19 regarding deposit of three sealed cloth parcels, FSL form and a copy of seizure memo and a copy thereof is Ex.PW2/A and further, he made an entry regarding deposit of the case property in the Malkhana vide DD No. 8 dated 02.08.2011 Ex.PW7/A and photocopy of the relevant page of the rojnamcha register containing DD No. 8 is Ex.PW1/F. FIR No. 206/2011, State Vs. Farik & Anr. Page 33/48
48. The prosecution has been able to prove that officer In charge of the police station had taken charge and kept in safe custody, recovered 'heroin' seized under the NDPS Act after affixing his seal, two sample parcels and as such provision of Section 55 of the NDPS Act have been complied.
49. So far as contention regarding noncompliance of Section 57 of the NDPS Act is concerned, it has come on record that PW9 SI Satyawan prepared a special report U/s. 57 of the NDPS Act regarding seizure of contraband from the accused persons and a copy thereof is Ex.PW5/A and submitted it to PW10 Insp. Kuldeep Singh on 03.08.2011. It has also come on record that PW10 Insp. Kuldeep Singh forwarded the original report U/s. 57 of the NDPS Act and a office copy thereof is Ex.PW10/B. PW4 ASI Davender Singh also prepared a special report U/s. 57 of the NDPS Act regarding arrest of the accused persons Ex.PW5/C and produced both the accused persons before PW10 Insp. Kuldeep Singh. PW4 ASI Davender Singh submitted special report U/s. 57 of the NDPS Act to PW10 Insp. Kuldeep Singh who forwarded it to the senior officers and office copy thereof is Ex.PW4/J. FIR No. 206/2011, State Vs. Farik & Anr. Page 34/48
50. It has also proved on record that on 03.08.2011, the said special reports U/s. 57 of the NDPS Act were received in the office of ACP vide diary No. 1523 and 1524 dated 03.08.2011 and the relevant page of the register containing the said entries is Ex.PW5/D. It has also proved on record that both the said reports were duly placed before Sh. Bir Singh ACP, Narcotics Cell who signed the said reports. PW5 HC Om Prakash has identified signatures of ACP Bir Singh.
51. So far as contention, the said reports cannot be proved in the absence of examination of ACP Bir Singh, Narcotics Cell is concerned, it can be stated that there is sufficient evidence on record that the said reports U/s. 57 of the NDPS Act Ex.PW5/B and Ex.PW5/C were placed before PW10 Insp. Kuldeep Singh and duly forwarded by him and received by the office of ACP, Narcotics Cell and particulars thereof entered into the concerned diary and a copy thereof has been produced before the Court. Moreover, both the said reports Ex.PW5/B and Ex.PW5/C bear signatures of ACP Bir Singh alongwith an endorsement 'seen' at point A on Ex.PW5/B and Ex.PW5/C and therefore, there is sufficient evidence on record to prove the special reports U/s. 57 of the NDPS Act containing complete particulars of arrest and seizure were sent to senior officer of police within 48 hours from seizure and arrest of accused persons. FIR No. 206/2011, State Vs. Farik & Anr. Page 35/48
52. So far as contention that there was delay of 6 days in sending sample parcels to FSL, Rohini for chemical analysis is concerned, it can be stated that mere delay of 6 days is not fatal to the prosecution case. Moreover, there is sufficient evidence on record to prove that the recovered 'heroin' was kept in three parcels Mark A, B and C duly sealed with the seal having impression '7BPS NB DELHI' and were produced before PW7 Insp. C.R. Meena without any delay who affixed his counter seal 'CRM' on all the said three cloth parcels and FSL form and deposited the said three cloth parcels, FSL forms and carbon copy of seizure memo with PW2 Jag Narain, MHC(M) who made an entry to that effect in the register No. 19 and PW7 Insp. C.R. Meena recorded the fact of deposit of the said articles with PW2 Jag Narain, MHC(M) vide DD No. 8 Ex.PW7/A. The sample parcel Mark A was sent to FSL, Rohini on 11.08.2011 alongwith sealed FSL form through PW3 HC Charan Singh vide RC No. 382/21 Ex.PW2/C and FSL, Rohini issued an acknowledgment receipt in that regard Ex.PW2/D. FSL report Ex.PW4/K shows that the seals on the sample parcel were found intact and tallied with the specimen seals as per forwarding letter. Hence, mere delay of 6 days in sending of FSL form is not fatal to the prosecution case.
FIR No. 206/2011, State Vs. Farik & Anr. Page 36/48
53. Mere fact that the word "forwarding letter" has been used in the FSL report would not mean that FSL Form was not sent to FSL, Rohini. Dealing with such contention in the case of Bilal Ahmad Vs. State reported as 2011 (1) JCC 27, Hon'ble High Court of Delhi has held as under: "10. I also do not find any merit in the contention that the form FSL was not deposited in the malkhana or that the same was not sent to the CFSL. PW3 Inspector Jeevan Singh has stated that the form FSL was filled and the pulanda was taken into possession vide Seizure Memo Ex. PW3/A. He took the pulanda and the FSL form in his possession along with the seizure memo and deposited the pulanda and FSL form along with a copy of the seizure memo in the malkhana on 2nd May, 1999 at around 10 p.m. The testimony of PW3 Inspector Jeevan Singh also finds support from the testimony of PW9 Bhagmal Singh who also states that the samples and pulanda were deposited with him duly sealed with the seal of R.K. and J.S. He made the entry in register No. 19, Ex. PW9/A. The contention that the form FSL was not sent to CFSL Chandigarh, is unfounded. The CFSL report Exhibit PX states that "Seals were intact, and tallied with specimen seals impressions". The seals on the samples cannot be tallied except with the specimen seals on the FSL form. Thus, even without specifically stating that form FSL has been received with the samples, this endorsement clarifies that the form FSL was received. Delay in sending parcel to the CFSL is not fatal especially when as per the CFSL report, the seals are intact and tallied FIR No. 206/2011, State Vs. Farik & Anr. Page 37/48 with the specimen seals. In State of Rajasthan v. Daul @ Daulat Giri MANU/SC/0881/2009 : 2009 (14) SCC 387 it was held:
1. The factual scenario goes to show that Jaswant Singh (PW1), the I.O., seized the articles on 15/6/1995. The search memo is Ex. P.4 and the specimen impression of the seal Ex. P.5. PW1 deposited the seized articles and sample with Bhanwarlal (PW8) who was the Malkhana InCharge in the Malkhana register in Ex. P.15A. PW.8 handed the material to Surendera Singh (PW.5) for depositing the sample in FSL. PW.5 reached the Superintendent of Police office and gave the samples to Jamnalal at 10.00 a.m. and received back the samples from Jamnalal at 5.00 p.m. and also obtained forwarding letter which is Ex. P.12 and is dated 20/6/95. PW.5 submitted the samples to FSL and obtained acknowledgment receipt it is Ex. P.13. The role of Jamnalal is very limited; that is receiving sample at 10.00 a.m. and handing samples back at 5.00 p.m. It is not understandable as to how the nonexamination of Jamnalal in any way affected the veracity of the prosecution version. The High Court came to an attempt and unsustainable conclusion that because Jamnalal was not examined "possibility of the sample having been tampered with could not be ruled out". The conclusion is unsustainable in view of the FSL report which clearly stated that the seals were intact and matched with the specimen seals.
FIR No. 206/2011, State Vs. Farik & Anr. Page 38/48
54. The fact that FSL form has been described as forwarding letter in the FSL report Ex.PW4/K is insignificant since the prosecution has been able to prove that the seals on the cloth parcels including the sample parcel remained intact throughout from the stage of preparation of cloth parcels till the time they were produced before the Court. Accordingly, mere mentioning of FSL form as forwarding letter in the FSL report and nonproduction of FSL form is not significant. There is no delay in sending sample parcel to FSL, Rohini and even otherwise, there is nothing on record to show any tampering with the sample parcel at any stage from the stage of preparation of sample parcel till examination by FSL, Rohini.
55. So far as contention that the weight of the sample parcel is mentioned as 5.54 grams with polythene in the FSL report Ex.PW4/K whereas sample parcel was of 5 grams is concerned, it can be stated that such a minor variation of 0.54 grams in the weight of sample parcel is inconsequential. It has come in evidence on record that the sample parcels were prepared at the spot with the use of an electronic machine whereas in FSL, Rohini, sample parcel is weighed with the help of a precision scale. Such variation in weight are natural when two different types of weighing scale are used. Minor variation of weight is not sufficient to doubt the prosecution case. FIR No. 206/2011, State Vs. Farik & Anr. Page 39/48
56. So far as contention that no public person was associated with the raiding team is concerned, it can be stated that PW9 SI Satyawan as well as PW6 HC Om Prakash and PW8 HC Jogender stated that several efforts were made at different places near PS Narcotics Cell, Shakarpur, Cremation Ground, Geeta Colony and at spot to join public persons but none of them agreed therefore, non examination of any independent witness is not fatal.
57. In 'Ramswaroop v. State (Government of NCT of Delhi), Crl. Appl. No. 1327/2010 decided on 21.05.2013, Hon'ble Supreme Court while dealing with an argument that the seizure had taken place as a crowded place but the prosecution chose not to examine any independent witness and in the absence of corroboration from independent witnesses the evidence of only police officials should not have been given credence to, has observed as under:
"7. To appreciate the first limb of submissions, we have carefully scrutinized the evidence brought on record and perused the judgment of the High Court and that of the Trial Court. It is noticeable that the evidence of PW7, namely, Ritesh Kumar, has been supported by Balwant Singh, PW5, as well as other witnesses. It has come, in the evidence of Ritesh Kumar that he had asked the passerby to be witnesses but none of them agreed FIR No. 206/2011, State Vs. Farik & Anr. Page 40/48 and left without disclosing their names and addresses. On a careful perusal of their version we do not notice anything by which their evidence can be treated to be untrustworthy. On the contrary it is absolutely unimpeachable. We may note herewith profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. Vs. Anil Singh, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the Court and therefore, the prosecution case cannot be doubted for nonexamination the independent witnesses.
8. At this juncture a passage from State Govt. of NCT of Delhi Vs. Sunil and another is apt to quote:
(a) 21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during postindependent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a propositions of law the presumption should be the other way around. That official acts of the police have been regularly FIR No. 206/2011, State Vs. Farik & Anr. Page 41/48 performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. It the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
9. In Ramjee Rai and others Vs. State of Bihar, it has been opined as follows:
10. Keeping in view the aforesaid authorities, it can safely be stated that in the case at hand there is no reason to hold that nonexamination of the independent witnesses affect the prosecution case and, hence, we unhesitatingly the submissions advanced by the learned counsel for the appellant".FIR No. 206/2011, State Vs. Farik & Anr. Page 42/48
58. Recently, in 'Asif Khan @ Kallu Vs. The State of NCT of Delhi', Crl. Appeal. No. 1122/12 decided on 29.04.2014; Hon'ble High Court has observed as under:
11. There is no doubt that the recovery has been made from the accused at public place. The investigating officers have duly explained that they had asked several persons to join the investigation but all of them had refused. There is no doubt that today in the society there is apathy in the public. Even if somebody is lying in an injured condition, people just look at the injured and walk away. It is very seldom that people stop and try to help the injured or make an effort to remove the person to a nearby hospital. This Court as well as the apex Court has been crying about the insensitivity of public in catena of cases. It is a hard fact that nobody wants to get involved into police cases.
People are becoming on lookers. When they are asked to witness anything they just show their difficulty and try to stay away. In view of this apathy of the public, the police have to act on their own. It, thus, cannot be said that because public persons were not made a witness, the entire proceedings are vitiated.
FIR No. 206/2011, State Vs. Farik & Anr. Page 43/48
59. So far as contention that no effort was made to produce the accused persons before a Gazetted officer or a Magistrate is concerned, it can be stated that accused persons after fully understanding their legal right to be searched in the presence of a Gazetted Officer or a Magistrate refused to avail their legal right and therefore, prosecution case cannot be discarded on the ground that no effort was made to produce the accused persons before a Gazetted Officer or a Magistrate.
60. This Court find considerable force in arguments of Sh. Parveen Kumar Mishra, Amicus Curiae for accused Shamshad that the prosecution has not been able to prove that accused Shamshad was a party to a criminal conspiracy or he abetted the offence under any of the provisions of NDPS Act. It is the precise case of the prosecution that at about 8.45 a.m., two persons reached at the spot from Durgapuri Chowk side and one person who was having a navy blue colour bag on his shoulder, was wearing pant and shirt and secret informer identified him as Farik and the other person who was wearing kurtapyjama was identified as Shamshad. It was case of the prosecution that both the persons waited at the spot for about 1015 minutes but nobody reached there.
FIR No. 206/2011, State Vs. Farik & Anr. Page 44/48
61. It was further case of the prosecution that when accused Shamshad and Farik were leaving the spot, they were apprehended. PW9 SI Satyawan, PW6 HC Om Prakash and PW8 HC Jogender have deposed to this fact in their depositions. It is further clear that no overt act has been imputed to ascribe any role to accused Shamshad so as to prove that he had the knowledge that accused Farik was carrying 2 kg 'heroin' in a blue colour bag on his left shoulder or he was a party to any criminal conspiracy. The prosecution has also failed to prove any agreement between accused Shamshad and Farik for committing any illegal act. Prosecution has also failed to prove that Shamshad assisted accused Farik in procuration, possession or supply of 'heroin'. Mere fact that accused Shamshad stood at the spot for 1015 minutes is not sufficient to infer criminal conspiracy or abetment. Prosecution has placed on record two bus tickets but no effort was made by IO to prove that both the accused had come from Rajasthan in those buses or they were traveling together alongwith the recovered contraband. There is no evidence on record that any member of team heard any discussion between accused Shamshad and Farik regarding procuration, possession or supply of 'heroin' to any part in Delhi.
FIR No. 206/2011, State Vs. Farik & Anr. Page 45/48
62. Therefore, this Court is of the considered opinion that the prosecution has failed to prove charge U/s. 29 of the NDPS Act in respect of accused Shamshad.
63. PW9 SI Satyawan is a material witness. He was In charge of the raiding team in his deposition. He has proved recovery of 2 kg. 'heroin' from the possession of accused Farik which he was carrying in a blue colour bag on his left shoulder. He weighed the recovered 'heroin' with an electronic scale and found it to be 2 kg. He had taken out two samples of 5 grams each and converted them into two sample parcels and the remaining 'heroin' was converted into a cloth parcel and the said parcels were marked as Mark A, B and C and he filled FSL form. He sealed the three cloth parcels as well as FSL form with his seal having impression '7BPS NB DELHI' and handed it over to HC Jogender alongwith ruqqa with the direction to hand over the ruqqa to Duty Officer and the three sealed parcels Mark A, B, C and FSL form to PW7 Insp. C.R. Meena, SHO, PS Crime Branch, Nehru Place, New Delhi. PW7 Insp. C.R. Meena affixed his counter seal all the three sealed parcels and FSL form and deposited sealed cloth parcels, FSL form and a seizure memo with PW2 HC Jag Narain, MHC(M).
FIR No. 206/2011, State Vs. Farik & Anr. Page 46/48
64. On 11.08.2011, PW3 HC Charan Singh had taken the sample parcel Mark A alongwith FSL form to FSL, Rohini vide RC No. 382/21 Ex.PW2/C and deposited there. FSL report Ex.PW4/K shows that the sample seals on sample parcel Mark A were intact and matched with the specimen seals on the FSL form. On chemical analysis, sample parcel was found containing 11.91 % diacetylmorphine and 6.24 % phenobarbital. The sample parcel Mark A was produced before the Court in sealed condition with seal of FSL, Rohini and identified by PW6 HC Om Prakash as Ex.P5. Sampel parcel Mark B was also produced before the Court in sealed condition and it was also identified by him as Ex.P7 and the remaining 'heroin' which was converted into a cloth parcel Mark C was also produced before the Court and identified by him as Ex.P3. PW9 SI Satyawan, PW8 HC Jogender and PW6 HC Om Prakash also identified the recovered contraband produced before the Court as Ex.P3, Ex.P5 and Ex.P7. There is no infirmity in the depositions of the prosecution witnesses particularly PW6 HC Om Prakash, PW8 HC Joginder and PW9 SI Satyawan. The defence has failed to show any discrepancy in the depositions of any of the prosecution witnesses.
FIR No. 206/2011, State Vs. Farik & Anr. Page 47/48
65. This Court finds that the depositions of the prosecution witnesses are cogent, coherent and consistent regarding recovery of 2 kg 'heroin' from the possession of accused Farik.
66. The prosecution has been able to prove that accused Farik was found in possession of 2 kg. 'heroin' without any license or permit and as such, he has committed an offence U/s. 21 (c) of the NDPS Act.
67. Accordingly, accused Farik is hereby convicted for committing offence U/s. 21 (c) of the NDPS Act.
68. Accused Shamshad is hereby acquitted from the charges U/s. 29 of the NDPS Act.
69. A copy of the order be free of cost to both the accused.
Announced in the open Court SANJAY SHARMA on this 30th day of May, 2014. Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi FIR No. 206/2011, State Vs. Farik & Anr. Page 48/48