Delhi District Court
Vijaysinh Chandubha Jadeja vs State Of Gujrat, Air 2011 on 11 November, 2013
1
IN THE COURT OF MS. SHAIL JAIN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS
02 (CENTRAL) DELHI
SC NO. 67/06
STATE
Versus
Shailender Singh S/o Iqbal Singh
R/o G1730, Jahangirpuri, Delhi
FIR No. : 220/05
Offence U/S : 21/61/85 NDPS Act
Police Station : Model Town
DATE OF INSTITUTION: 8.6.05
JUDGMENT RESERVED ON: 29.10.13
DATE OF JUDGMENT: 11.11.2013
JUDGMENT
1. Prosecution story is that on 12.4.05, at about 1.10 pm at T point, Kalyan Vihar Pocket, within the jurisdiction of PS Model Town, accused Sheetal Chawla s/o Ramswaroop was coming driving scooter with co accused Shailender S.C.No. 67/06 Page 1 of 17 pages 2 sitting on the pillion and both were stopped by the police while the vehicles were being checked. The accused could not produce papers of the scooter and their search was conducted. From accused Sheetal Chawla, one broken chain was recovered whereas from co accused Shailender, one transparent polythene containing smack was recovered. The notice u/s 50 NDPS Act was served upon accused Shailender to which he recorded his refusal. The smack recovered from co accused Shailender was weighed and it came out to be 59 grams. One sample of five grams was taken out and then remaining smack and sample of smack were separately sealed and seized. The accused persons were arrested and after completion of investigation were chargesheeted.
2. On 20.10.05, accused Sheetal Chawla and co accused Shailender Singh were charged for having committed an offence punishable u/s 21 NDPS Act 1985, to which they pleaded not guilty and claimed trial. During the trial, co accused Shailender absconded and was declared S.C.No. 67/06 Page 2 of 17 pages 3 proclaimed offender. Accused Sheetal Chawla was acquitted by my Ld Predecessor vide order dated 25.07.2011 Accused Shailender was later on arrested.
3. Prosecution examined 10 witnesses in all to bring home the guilt of the accused.
4. PW1 constable Jitender Kumar took sample parcel duly sealed to FSL Rohini and stated that same remained intact in his possession and no one tampered the sample.
5. PW2 HC Suresh Kumar recorded the FIR of the present case being the Duty officer, vide EXPW2/A.
6. PW3 Ct. Dhir Singh was on duty with SI Mahesh Kumar Meena , HC Amar singh and Ct. Sushil Kumar and they were checking vehicles at Kalyan Vihar picket on 12.4.05. He deposed that two persons on scooter No. DL8SX3397 were stopped but on seeing the police, they took turn towards backside and started running but meanwhile the scooter slipped and they were apprehended. The accused Sheetal Chawla was driving the scooter and co accused Shailander was the pillion rider. They could not show the S.C.No. 67/06 Page 3 of 17 pages 4 documents of the scooter nor they could give any satisfactory answer. Thereafter on checking, accused Sheetal Chawla was found in possession of one golden colour broken chain and he told that chain has been snatched by co accused Shailender Singh from the area of Model Town. On search of co accused Shailender, one small polythene containing cream colour powder was recovered and on interrogation, he told that it was smack. Accused Shailender was informed of his right of being searched in presence of Gazetted Officer or Magistrate if he desires to which he refused and thereafter notice u/s 50 NDPS Act was served upon accused Shailender and SI Mahesh Meena informed the SHO and ACP concerned. Also twothree persons were requested to join the proceedings but none came forward. Meanwhile Inspector R.K. Budhiraja reached the spot in Govt. vehicle. The chain recovered from Sheetal Chawla was seized vide memo EXPW3/A after sealing the same. The contraband recovered from accused Shailender was weighed and it S.C.No. 67/06 Page 4 of 17 pages 5 came out to be 59 grams. Out of this, 5 grams was taken as sample. After sealing the smack and the sample, they were taken in possession vide seizure memo EXPW3/B. The scooter was also taken in possession vide EXPW3/C. The accused persons were arrested vide memos EXPW3/D&E and disclosure statements of accused persons were recorded vide memo EXPW3/F&G.
7. PW4 HC Amar Singh was also present at the time of apprehension of accused persons and has supported the search and seizure proceedings as well as arrest proceedings of the accused persons. He also proved disclosure statements of accused persons vide memo EXPW4/B&C, notice served upon accused Shailender u/s 50 NDPS Act EXPW4/A and the reply EXPW4/B.
8. PW5 ASI Urmila recorded DD no. 20A about the departure of police officials on 12.4.05 and proved relevant entries EXPW5/A.
9. PW6 Inspector R.K. Budhiraja was posted as SHO P.S Model Town on 12.4.05. He stated that on receipt of S.C.No. 67/06 Page 5 of 17 pages 6 information about seizure of smack, he reached the spot where SI Mahesh Meena alongwith staff met him and accused were produced before him. The recovered articles were also shown to him. PW6 has further proved the seizure and other proceedings and the relevant memos.
10. PW7 Ct. Sushil has also supported the prosecution case being the member of the police party which apprehended the accused persons and proved the relevant documents, prepared at the time of apprehension of accused and search, seizure proceedings. He has also been cross examined.
11. PW8 SI Sudhir Kumar, took over subsequent investigation of the present case and reached the spot where first IO SI Mahesh Meena handed over accused persons to him. He prepared site plan vide EXPW8/A, interrogated and arrested the accused persons vide EXPW3/D&E and conducted their personal search vide EXPW8/B&C. On 13.4.05, the accused persons made further disclosure statements which was recorded vide S.C.No. 67/06 Page 6 of 17 pages 7 EXPW4/B&C.
12. PW9 HC Suresh Kumar posted with P.S Model Town as MHC(M) deposed about deposition of case property of this case and proved the relevant entries vide EXPW9/A. He has also been crossexamined.
13. PW10, Inspector Mahesh Meena has been the first IO and given details about apprehension of the accused. He deposed about search and seizure proceedings and proved the relevant memos. During crossexamination on behalf of accused Sheetal Chawla, he denied that accused has been falsely implicated.
14. Thereafter, prosecution evidence was closed.
15. The statement of accused Shalinder Singh was recorded u/s 313 CrPC wherein the entire evidence has been explained to him to which he pleaded innocence and false implication. He has further stated that witnesses examined by the prosecution are planted witnesses and nothing was recovered from his possession.
16. I have heard Ld APP for the State, Ld Amicus Curiae Ms S.C.No. 67/06 Page 7 of 17 pages 8 Sunita Gupta for accused Shailender Singh.
17. Ld Amicus Curiae for accused had argued that there are material contradictions in the statements of prosecution witnesses. It is argued by Ld Defence Counsel that samples were taken by PW1 Ct Jitender but he did not sign register of MHC(M) and it is not clear from the record that any FSL form was sent along with the parcels. It is further pointed out by Ld counsel for accused that PW3 Ct Dheer Singh had stated that smack was weighed with manual scale whereas PW7 Ct Sushil had stated that smack was weighed in electronic weighing machine. It is also pointed out by Ld counsel for accused that there is difference in the description of the case property given by him. It is submitted by Ld Defence Counsel that there are material contradictions in the testimonies of prosecution witnesses, hence it has not been proved that accused was arrested at the spot or that any contraband was recovered from his possession.
18. Arguments of Ld counsel for accused appears to be S.C.No. 67/06 Page 8 of 17 pages 9 based on the minor inconsistency caused in the testimonies of different police officials, these inconsistencies are not material which could jeopardise the case of the prosecution. The first contradiction pointed out by Ld Defence Counsel that smack was measured on manual or electronic weighing machine is very trivial issue, testimony of PW1 Ct Jitender Kumar is supported with the testimony of PW3 Ct Dheer Singh and PW4 HC Amar Singh who had stated that contraband was weighed with manual scale. These minor discrepancies can occur due to lapse of time in recording the evidence of the witness, hence much weightage can not be given to this discrepancy. As regards the discrepancy of manner of conduction of proceedings, that is also trivial in nature and does not vitiate the proceeding conducted by the prosecution. As regards discrepancies of difference in description of case property in the testimony of PW6 ACP R K Budhiraja, it is to be noticed that during cross examination it was pointed out by Ld counsel for accused S.C.No. 67/06 Page 9 of 17 pages 10 that in statement u/s 161 Cr.P.C PW6 had mentioned that 'liquor' was seized. It is not of much use for the present case, as it can be due to writing mistake. More specifically when in examination in chief, PW6 has categorically stated that smack was recovered from accused, the version of prosecution inspires confidence. It is also not the case of accused Shailander that liquor was recovered from him.
19. The accused stands charged for the offense punishable u/s 21 of NDPS Act 1985, for having been found in conscious possession of smack. The accused was apprehended on suspicion. On evaluation of testimony of prosecution witnesses, who were the members of the raiding party namely PW3 Ct Dheer Singh, PW4 Amar Singh , I find that they have remained consistent and confident in their depositions and no infirmities or discrepancies have emerged during their cross examination which could prove to be fatal to case of prosecution. There is no reason to affect the credibility and reliability of these witnesses. It is further evident from the documentary S.C.No. 67/06 Page 10 of 17 pages 11 evidence particularly the notice u/s 50 NDPS Act EXPW4/A, and seizure memo Ex.PW3/B , that the proceedings have been conducted meticulously and in full compliance to the provisions of NDPS Act. It has been consistently maintained by prosecution witnesses that reply EXPW4/B was given by the accused himself and the same was explained and read over to him.
20. It has been argued by Ld defence counsel that service of notice u/s 50 NDPS Act is not proper in this case, despite fact that the judgments of the higher courts have advocated for strict and mandatory compliance of the same. According to Ld. Defence Counsel, the accused was required to be produced before gazetted officer or magistrate. On consideration of facts and circumstances of the case and the evidence, I am not in agreement with Ld counsel for accused. It is clear from the language of notice as well as from the testimony of PW3 Ct Dheer Singh and PW4 HC Amar Singh that accused was properly explained his legal and statutory rights in this regard. The accused S.C.No. 67/06 Page 11 of 17 pages 12 recorded his refusal vide EXPW4/B and it has not been suggested to any of the members of the raiding party that accused desired to be produced before gazetted officer or magistrate for the purposes of his search. It has also not been the case of the defence that accused wrote the notice on the dictation of the IO. The judgment of apex court, Vijaysinh Chandubha Jadeja vs State of Gujrat, AIR 2011 SC 77 is the authority on the point of service of notice 50 NDPS Act. It has been clearly opined by constitution bench that it is imperative on the part of the officer to apprise the person intended to be searched of his statutory rights and failure to observe the same would vitiate the proceedings. Thereafter the suspect may or may not choose to exercise his right. Para 22 of the said judgment reads as under: ''In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, S.C.No. 67/06 Page 12 of 17 pages 13 viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance.
Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search.
S.C.No. 67/06 Page 13 of 17 pages 14 Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
21. In view of aforesaid legal position, I find that in the present case, there has been proper compliance to Section 50 NDPS Act. The accused was explained about his statutory rights and there is no reason to disbelieve the prosecution witnesses on this point.
22. The next contention raised by Ld counsel has been that no public witness was joined and the testimony of police officials is not to be relied upon as they are always interested in success of the prosecution case. On consideration of testimony of the witnesses as well as documentary evidence, I find no reason to discard their evidence. It is consistently stated by all members of the raiding party that efforts were made by the IO to join public witnesses but no one came forward. There is no suggestion to the prosecution witnesses that no such S.C.No. 67/06 Page 14 of 17 pages 15 efforts were made. Otherwise also, it is not uncommon that public persons are reluctant to join police proceedings as they do not want to get involved in hectic police and court proceedings. Merely for the reason that no public person joined the raid, the officials cannot be disbelieved. It has also been held by Supreme Court in Ajmer Singh Vs State of Haryana, 2010 (2) RCR, Crl. 132 that non joining of independent witness is not fatal to the prosecution case particularly when efforts were made by the investigating party to join public witness but none was willing. It was held that accused cannot be acquitted only because no independent witness was produced. The conviction was upheld in this case.
23. It is also contended by Ld Defence Counsel that the presence of smack has not been proved. I have given due consideration to the record as well as to the rival contentions on this aspect. FSL Report is available on the record with respect to the contraband recovered from the accused. Contraband was sent to FSL Rohini and report S.C.No. 67/06 Page 15 of 17 pages 16 was prepared. This report has confirmed that contraband recovered from the accused was "smack ".
24. The testimony of prosecution witnesses, although they are police officials inspire confidence and their statements are duly corroborated with the documents. They remained unshaken during crossexamination and no concrete reason has been attributed to them for false implication of the accused. The provisions of NDPS Act particularly section 42, section 50, section 55 and section 57 have been properly complied with. The samples were sent to FSL within reasonable time. For these reasons, the recovery of smack from the possession of the accused has been sufficiently proved.
25. On proper and careful evaluation of the facts and events of the case, I conclude that testimony of prosecution witnesses is consistent and trustworthy. The recovery of contraband from the possession of accused is clearly established. The accused was found in possession of 59 grams of smack which is punishable u/s 21 NDPS Act.
S.C.No. 67/06 Page 16 of 17 pages 17 Holding the accused guilty, I convict accused Shalinder u/s 21 NDPS Act, 1985.
ANNOUNCED IN THE OPEN COURT ON 11.11.2013 (SHAIL JAIN) ADDL. SESSIONS JUDGE DELHI S.C.No. 67/06 Page 17 of 17 pages