Delhi District Court
State vs . Buridi Mohan Rao, on 31 August, 2018
IN THE COURT OF AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 592/2017
In the matter of:
State Vs. Buridi Mohan Rao,
S/o Sh. Buridi Jaya Ram,
R/o H. No. 08, Dokri Put,
Village Muchangiput,
Mandalam, Dareli,
Andhra Pradesh.
FIR No. : 235/17
Police : Dwarka North
Station
Under : 20 (b) (ii) (B) NDPS Act
Sections
Date of Institution of case : 27.09.2017
Date of Arguments : 30.08.2018
Date of Judgment : 31.08.2018
JUDGMENT:
1. The case of the prosecution is that on 27.07.2017, SI Satish Yadav alongwith ASI Vijay, Ct. Sunil and Ct. Sohan Singh were on patrolling duty and Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 1/39 were checking of suspicious persons and were present at Kakrola Ganda Nala near Police Picket. It is averred that at about 2 p. m., accused Buridi Mohan Rao alongwith two other persons Magana Golari and Ajay Sethio (both CCL) were seen coming on foot towards Kakrola Ganda Nala Picket carrying bags and on seeing the police, they all turned back.
2. Thereafter, accused and the aforesaid two persons were apprehended by SI Satish Yadav with the help of other police staff after a chase of 15-20 steps. It is averred that the bags of accused and the other two persons were checked and on checking, bags of all of them were found containing ganja and on enquries, the said two persons were found juvenile. Thereafter, SI Satish Yadav served a notice under Section 50 NDPS Act upon accused and separate notices to the other two persons and accused was apprised about his legal right that he could be searched in the presence of any Magistrate Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 2/39 or Gazetted officer if he desires, but accused refused to avail the said legal right and gave his reply.
3. It is the case of prosecution that Ct. Sunil had brought traju and weights at the spot and with the help of the same, the ganja recovered from accused and two juveniles were weighed and the ganja in the bag of accused was found 9 kg 500 gms. and on checking, his bag was found containing one polythene containing ganja and it was also weighed and found 130 gms. It is stated that SI Satish had taken two samples of 250 gms each from the ganja 9 kg 500 gm and had taken one sample of 50 gms from the ganja 130 gms. Thereafter, SI Satish Yadav had prepared the pulandas of samples and the same were given Mark S1, S2 and S3 and SI Satish Yadav had kept the recovered ganja in the bag and polythene and the same were converted in to pulandas and given S. No. 1 and 2 and he sealed all the pulandas with the seal of SKY and filled FSL Form and affixed Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 3/39 his seal of SKY on the same. Thereafter, SI Satish Yadav had seized all the pulandas and FSL form vide a common seizure memo and he also seized bag of accused and two bags of juvenile with cloths and he prepared rukka and handed over the same to Ct. Sohan Singh with all the pulandas, FSL Form and seizure memos and sent him to PS Dwarka North.
4. It is further the case of prosecution that after registration of FIR, the investigation of present case was assigned to SI Sunil Kumar, who reached the spot and prepared site plan. Thereafter, accused was arrested by SI Sunil Kumar and his personal search was conducted. It is stated that accused was interrogated and his disclosure statement was recorded by SI Sunil Kumar and SI Sunil Kumar had prepared a report under Section 57 NDPS Act and sent the same to ACP through Inspector Jasmohinder Singh. The proceedings qua two CCL were conducted by Juvenile Welfare Officer. After completion of Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 4/39 investigation, the charge sheet was filed. Charge against the accused:
5. Vide order dated 06.11.2017, the charge for the offence under Section 20(b) (ii) (B) of the NDPS Act was framed against the accused to which he pleaded not guilty and claimed trial. Witnesses examined:
6. The prosecution examined following witnesses in support of its case who are as follows:-
PW1 is ASI Vijay. He deposed that on 27.07.2017, he alongwith other staff was on patrolling duty and were conducting checking of suspicious persons and during said checking, they saw that three persons including accused were coming on foot and on seeing the police officials, they turned back. He further deposed that all of them were apprehended and on checking the contraband was recovered from bag of Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 5/39 accused. He proved the seizure memo as Ex. PW-1/A, arrest memo of accused as Ex. PW-1/B, personal search memo of accused as Ex. PW-1/C, railway tickets were seized vide seizure memo Ex. PW-1/D and disclosure statement of accused was proved as Ex. PW-1/E. PW2 is Ct. Sunil. He has deposed that he was on patrolling duty with other police officials and further deposed regarding apprehending and arrest of accused. He proved seizure memo of some cloths as Ex. PW-2/A. PW3 is HC Radha Kishan. He has deposed that on 27.07.2017, he recorded FIR on the basis of rukka sent by SI Satish Yadav. The copy of FIR was proved as Ex. PW-3/A, his endorsement as Ex. PW-3/B, attested copy of DD No. 30A as Ex. PW-3/C and certificate U/s 65B as Ex. PW-3/D. PW4 is Ct. Sohan Singh. He was also on patroling duty on that day with other police officials. He also Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 6/39 deposed about recovery of gaanja, sealing and seizure proceedings.
PW5 is Ct. Anuj Kumar who deposed that on the instructions of IO, he had taken sealed pulandas and FSL form of this case to FSL, Rohini and deposited same there and obtained receipt which he handed over to MHC(M).
PW6 is SI Satish Yadav. He was also on patrolling duty on that day when accused was apprehended. The reply of accused on notice was Ex. PW-6/A, rukka was Ex. PW-6/B, departure entry vide DD No. 38B was Ex. PW-6/C. He also proved the recovery of gaanja, taking of samples, sealing and seizure of case property.
PW7 is SI Virender Singh. This witness deposed that on 29.07.2017, intimation u/s 57 of NDPS Act of this case sent by SI Sunil Kumar and SHO PS Dwarka North was received in the office of ACP and he immediately put up the same before Sh. Rajender Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 7/39 Singh, ACP, who made his endorsement on the report Ex. PW-7/A and he made entry in Diary register and copy of same was Ex. PW-7/B. PW8 is SI Sunil Kumar. He deposed that investigation of present case was assigned to him and he reached at spot and met with other police officials. He proved the site plan as Ex. PW-8/A and the report of FSL as Ex. PW-8/B. He also deposed about the arrest and personal search of the accused and other proceedings conducted by him including the report U/s 57 of NDPS Act.
PW9 is Inspector Jasmohinder Singh. He deposed that Ct. Sohan Singh came to his office and he produced 11 sealed pulands with seal of SKY, FSL form and carbon copy of seizure memo and he filled the particulars of FIR on all the pulandas, FSL form and carbon copy of seizure memo and affixed his seal of JS on all the pulandas and FSL form. The attested copy of DD No. 31A was proved as Ex. PW-9/A. He Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 8/39 also deposed about the depositing of case property with MHC(M).
PW10 is HC Rajeev. He deposed that he was posted as MHC(M) at PS-Dwarka North on 27.07.2017 and he was called by SHO in his office with register No. 19. He had proved the copy of entry at Sl. No. 1749 as Ex. PW-10/A, copy of RC as Ex. PW-10/B and acknowledgement issued by FSL as Ex. PW-10/C.
7. Thereafter, Prosecution Evidence was closed on the request of Ld. APP vide order dated 27.08.2018 and matter was posted for recording of statement of accused U/s 313 Cr. P. C.
8. Statement of accused U/s 313 Cr. P. C. was recorded on 28.08.2018 whereby all the incriminating evidence was put to him to in which he denied all the allegations and pleaded his innocence. He stated that he has been falsely implicated in the present case and nothing was recovered from him and the police obtained his signatures on some blank papers Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 9/39 forcibly.
9. I have considered the submissions and gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence. ARGUMENTS OF PROSECUTION:
10. It is argued by Ld. APP for state that this is a case of chance recovery. He further stated that police officials were on patrolling duty and accused alongwith two other persons who were found juvenile had come there carrying bags and on seeing the police officials, they turned back and on suspicion they were stopped and apprehending. On checking the accused was found in possession of Gaanja 9.630 kg in total in his bag. It is stated by Ld. APP for State that prosecution by producing several reliable witnesses in witness box has succeeded in proving Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 10/39 the guilt of the accused beyond reasonable doubt. ARGUMENTS OF DEFENCE:
11. On the other hand, Ld. Counsel for accused vehemently argued that the accused is innocent. It is argued by him that the testimonies of prosecution witnesses are full of omissions and improvements and in view of improvements made by PWs, their evidence has lost credibility and cannot be relied upon to give finding of guilt of accused. It is also argued that the present accused has been falsely implicated.
12. In rebuttal, the Ld. APP for the state submitted that the contradictions in the testimony of material witnesses are minor and natural and does not affect the case of the prosecution. He further argued that nothing contrary has come in the cross-examination of PWs to dis-credit them. It is further argued that there is sufficient material and evidence on record to Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 11/39 prove the guilt of accused.
JUDGMENT RELIED UPON ON BEHALF OF STATE.
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors.
2002 (2) CC Cases (SC) 58;
2) Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783;
3) Delias Christopher Vs. Customs 2004 (3) JCC 147;
4) State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103;
5) State of Punjab Vs. Baldev Singh (1999) 3 SCC
977.
6) Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77
7) Radha Kishan Vs. State 2000 Cri LJ 4090;
8) Jarnail Singh Vs. State of Punjab (2011) 3 SCC 521;
9) State of Haryana Vs. Mai Ram, (2008) 8 SCC 292; Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 12/39
10) Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652;
11) Tahir Vs. State 1996 (3) SCC 338.
JUDGMENT RELIED UPON ON BEHALF OF ACCUSED.
1) D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416;
13. I have considered the submissions of counsel for accused and Ld. APP for the state and gone through the documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence. FINDINGS:
Observations w.r.t. Offence U/s 20 (b) (ii) (B) NDPS Act:-
14. From perusal of record, it is revealed that this is a case of chance recovery of contraband from Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 13/39 accused. It is the case of prosecution that on 27.07.2017, SI Satish Yadav alongwith ASI Vijay, Ct. Sunil and Ct. Sohan Singh were on patrolling duty and were checking of suspicious persons and were present at Kakrola Ganda Nala near Police Picket and at around 2 pm, accused Buridi Mohan Rao alongwith two other persons Magana Golari and Ajay Sethio (both CCL) were seen coming on foot towards Kakrola Ganda Nala Picket carrying bags and on seeing the police, they all turned back. It is also the case of prosecution that accused and the aforesaid two persons were apprehended by SI Satish Yadav with the help of other police staff after a chase of 15-20 steps and then the bags of accused and the other two persons were checked and on checking, bags of all of them were found containing ganja and on enquries, the said two persons were found juvenile. It is the case of prosecution that contraband was weighed with the help of the traju and the ganja in the bag of Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 14/39 accused was found 9 kg 500 grams and on checking, his bag was found containing one polythene containing ganja and it was also weighed and found 130 gms and consequently samples were drawn.
15. Records of present case reveals that the accused stands charged for the conscious possession of 9.630 kg Gaanja which is a intermediate quantity i.e. higher than small quantity of 1 kg and lesser than commercial quantity of 20 kg of Gaanja as prescribed under NDPS Act. The stringent provisions are provided under the act qua the punishment. The scheme of NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguard ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, balance must be struck between the need of the law and the enforcement of such law on the one hand, the protection of citizen from oppression and injustice on the other hand. The provisions are Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 15/39 intended for providing certain checks on exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband.
16. In the present case, the accused was apprehended and was found in possession of gaanja from his bag. Hence, it cannot be stated that he was not in conscious possession of the contraband i.e. gaanja.
17. Now, this court will deal with the testimonies of prosecution witnesses recorded in the court.
18. As far as depositions of PW1 ASI Vijay, PW-2 Ct. Sunil, PW-4 Ct. Sohan Singh and PW-6 SI Satish Yadav are concerned, all of them have deposed on similar lines to the effect that they were on patrolling duty and were checking of suspicious persons and were present at Kakrola Ganda Nala near Police Picket and at around 2 pm, accused Buridi Mohan Rao alongwith two other persons Magana Golari and Ajay Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 16/39 Sethio (both CCL) were seen coming on foot towards Kakrola Ganda Nala Picket carrying bags. They further deposed regarding apprehending of accused persons and recovery of contraband from their possession.
19. All the above witnesses have proved the documents as per their role in the investigation of present case. PW-1 has proved the seizure memo of pulandas and FSL form as Ex. PW-1/A. The arrest memo of accused Buridi Mohan Rao has been proved as PW-1/B, his personal search as Ex. PW-1/C, railway ticket seized from accused was proved as Ex. PW-1/D and disclosure statement of accused was recorded as Ex. PW-1/E. PW-6 has proved the reply of accused on the notice U/s 50 as Ex. PW-6/A. This witness has also proved the rukka prepared by him as Ex. PW-6/B, departure entry vide DD No. 38/B as Ex. PW-6/C. PW- 8 has proved the site plan of spot as Ex. PW-8/A and FSL report as Ex. PW-8/B. Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 17/39
20. So from above discussion, it is observed that all material documents have been duly exhibited and proved by prosecution as per law.
21. This court has gone through the contents of FSL Report Ex. PW-8/B which says "On physical, microscopic, Chemical and TLC Examination, Exhibits S-1, S-3, S-4 and S-6 were found to be Ganja (cannabis)". By way of this report, it is duly proved that contraband recovered from the possession of accused was Ganja.
22. One of the material witness of prosecution is PW-3 HC Radha Kishan. He has proved the registration of FIR in the present case as Ex. PW-3/A, his endorsement on same as Ex. PW-3/B, attested copy of DD No. 30A as Ex. PW-3/C and his certificate as Ex. PW-3/D.
23. PW-5 Ct. Anuj Kumar has deposed regarding deposition of sealed pulandas and FSL form of this case to FSL, Rohini and he obtained receipt which he Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 18/39 handed over to MHC(M).
24. PW-7 SI Virender Singh is a witness who was posted as SO to ACP, Dwarka and he deposed that intimation U/s 57 of NDPS Act as sent by SI Sunil Kumar was received in ACP office and same was presented before ACP who made his endorsement on report Ex. PW-7/A. He further proved the entry made in Diary Register in this respect as Ex. PW-7/B.
25. Another star witness produced by prosecution is PW-8 SI Sunil Kumar who had proved the site plan as Ex. PW-8/A and the report of FSL as Ex. PW-8/B after assignment of case. He also proved the arrest and disclosure statement of accused.
26. Inspector Jasmohinder Singh had deposed regarding production of 11 sealed pulandas with seal of SKY, FSL form and carbon copy of seizure memo before him by Ct. Sohan Singh. He had deposed that he filled the particulars of FIR on all the pulandas, FSL form and carbon copy of seizure memo and affixed Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 19/39 his seal of JS on all the pulandas and FSL form. PW-9 has proved the attested copy of DD No. 31A as Ex. PW-9/A. He also proved the deposition of case property with MHC(M).
27. PW10 HC Rajeev had proved the copy of entry in register No. 19 at Sl. No. 1749 as Ex. PW-10/A, copy of RC as Ex. PW-10/B and acknowledgement issued by FSL as Ex. PW-10/C.
28. The counsel for accused has argued that testimony and deposition of prosecution witnesses is full of omissions and improvements and in view of improvements made by PWs, their evidence has lost the credibility and cannot be relied upon to give finding of guilt against the accused. However, it is observed that contradictions in the testimony of material witnesses are minor and natural and does not affect the case of the prosecution.
29. The witnesses produced by prosecution are wholly reliable and trustworthy and nothing could be Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 20/39 brought out in their cross-examination to discredit them as they have deposed as per their role in the investigation of the present case. The counsel for accused has argued that accused has been falsely implicated and has no connection with crime. It is observed that witnesses produced in court have no motive or reason to falsely implicate the accused in this case. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons-falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 21/39 be branded as liar".
30. Even otherwise, it has been held in case of Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783 that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC 147.
31. The present case is a case of recovery of considerable quantity of gaanja. It is not possible to plant such a huge quantity upon the accused. Moreover, there is no reason to falsely implicate the accused. In the case of State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, it was held that:
"The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H. P. 2005 (1) Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 22/39 Crimes 358 (H. P.) it was observed: it is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person ......... police had no axe to grind in implicating the accused."
32. Further it has to be seen that accused has failed to bring on record anything showing that he was not in conscious possession of contraband item. He was found in possession 9.630 KG of gaanja in his bag. On considering the facts available on record, the document, testimony of witnesses after detailed scrutiny, no doubt remain that accused was in conscious possession of gaanja.
33. The Ld. Counsel for accused has argued that the notice U/s 50 NDPS Act was defective as the accused was not explained about his legal right to be searched before a Gazetted officer or Magistrate. But Ld. APP for the state has argued that notice U/s 50 of Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 23/39 NDPS Act Ex. PW-6/P7 was served upon the accused whereby he was apprised about his legal rights. During the arguments Ld. Counsel for the accused referred the case of D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416 to contend that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence.
34. Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
35. The question which thus arises for consideration Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 24/39 is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by State of Punjab Vs. Baldev Singh (1999) 3 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 25/39 empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazette Officer or a Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 26/39 or a Magistrate". It was held that it was substantial compliance with the requirement of Section 50 of NDPS Act. The Court did not agree with the contention that there was non- compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made.
36. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 27/39 way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and 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. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction. The counsel for accused has relied upon judgment titled as Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1 wherein the Hon'ble High Court of Delhi has held as under:-
"Substantial Compliance of - Notice in the states that since there is an information as to the possession of heroin and he (accused) has Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 28/39 been apprehended and is required to be searched, if he so desires he can first take the search of the police party - On refusal, the appellant was asked that if he so desire then his search can be taken before a Magistrate or a Gazetted Officer - This was also declined by the appellant - A perusal of the notice under Section 50 of NDPS Act and the testimony of PW11 the Investigating Officer shows that the appellant was informed only about the option and not about his right of being searched before a Magistrate or a Gazetted Officer- The appellant is thus entitled to be acquitted."
37. I have perused the notice U/s 50 NDPS Act Ex. PW-6/P7 whereby accused was apprised that his search is to be conducted in the present case and if he wants, his search could be conducted in the presence of Gazetted Officer or Magistrate, however vide his reply on said notice, he refused to avail the Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 29/39 same. The contents of whole notice are in Hindi. Though it has been argued that accused does not Hindi and English, however it has come in the cross- examination of PW-6 SI Satish Yadav that accused belongs to Andhra Pradesh and was not much conversant with the Hindi and English language but they were understanding Hindi and English. Even otherwise, this arguments of accused does not hold water as accused himself has put his signatures on notice U/s 50 of NDPS Act and on reply in English language. Not only this, but accused has put his signatures in English language only on all relevant document prepared in the present case including arrest memo Ex. PW-I/B, personal search memo Ex. PW-I/C, disclosure statement Ex. PW-I/I, seizure memo Ex. PW-1/D and Ex. PW-I/A. So there is sufficient compliance and above judgment is not applicable in the present case.
38. The prosecution witnesses are clear and Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 30/39 consistent in their deposition about the service of notice U/s 50 of NDPS Act before taking search of accused. The notice U/s 50 of NDPS Act Ex. PW-6/P7 is proved on record and on perusal of same, it is clear that statutory rights of accused in this regard was clearly explained to him. By virtue of this notice, the accused was apprised of his legal rights qua his search in the presence of a Gazetted Officer or a Magistrate. However, the accused declined to avail the said right.
39. The Counsel for accused has argued regarding tempering of case property till the same remained in the custody of officials. In this respect, testimony of PW-10 HC Rajeev is very important who has deposed on 27.08.2018 that "Till the case property and FSL form remained in my custody, the same were not tampered with". In his cross- examination, he deposed that "The pulandas which I have received were sealed. The seals on all Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 31/39 the pulandas were intact".
40. So from deposition of above witnesses, it is clear that there was no question of tempering with case property. In rebuttal to this argument of Ld. Counsel for accused, Ld. APP for the state has rightly relied upon judgment titled Radha Kishan Vs. State 2000 Cri LJ 4090 and Jarnail Singh Vs. State of Punjab (2011) 3 SCC 521. The sequence of deposit of case property with official is duly proved and does not point regarding tempering.
41. The counsel for accused has also argued that different types of weights (Batta) were brought by police officials from shop/atta chakki and there is no possibility that any atta chaki would be having weight of 10gm or 20 gm being smaller in weight, however for weighing the gaanja of 130 gm, the police officials must require said weights of 10 or 20 gms, thus it is argued that case property has not been properly weighed. In this respect, Ld. APP for the state has Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 32/39 drawn attention of court qua cross-examination of PW-6 SI Satish Yadav wherein he deposed that "The weights were including 2kg, 1kg, 500gm, 100gm, 200gm, 50gm, 20gm and 10gm". So from his deposition, the above argument of counsel for accused does not hold water and this court does not find any flaw in weighing of case property by police officials at spot.
42. The counsel for the accused could not find any flaw in the usage of the seal while sealing the case property. The movement of the contraband items to the Malkhana is also duly proved. The drawing of the samples and deposition of the same with the FSL is also duly proved. Dent could not be created in the statement of the witnesses by counsel for accused. So, nothing doubtful has been brought on record by the accused against the testimonies of the witnesses produced by the prosecution.
43. In the light of consistent and reliable testimony Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 33/39 of prosecution witnesses, the defence taken by the accused is found to be improbable which otherwise has not been substantiated by him either by examining himself on oath or by leading any cogent evidence in their defence.
44. In the instant case, all the procedural safeguards provided under a statute have been strictly complied with. The prosecution has discharged its burden of proving its case against the accused beyond all reasonable doubt. There is no question of conviction of the accused on a misguided, suspicion. This case is not based on conjectures or surmises.
45. It is trite that non-joining of public witnesses itself can not become a ground for acquittal if the case of prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 34/39 from any infirmity. The case of the prosecution can not be held to be vulnerable for non-examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution can not be disbelieved. This position was reaffirmed by the Apex Court in State, Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652, wherein it was held that :
".... 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 Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 35/39 upon in a particular case. If 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 it 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". It is further held in same judgment that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution".
46. It is evident from the testimony of prosecution witnesses specially PW-6 SI Satish Yadav that sincere Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 36/39 efforts were made to join the public witnesses but none of them inclined to join and went away telling their excuses. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court proceedings. The non joining of public witnesses is not fatal to the case as otherwise the case is proved by way of consistent and cogent evidence. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the opinion that there is no reason to discredit the convincing testimony of prosecution witnesses. This is also fortified by the judgment of Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under:-
"6....... No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 37/39 or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
47. Hence, considering the overall facts and circumstances of the present, the accused Buridi Mohan Rao is held guilty for recovery of intermediate Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 38/39 quantity of Gaanja U/s 20 (b) (ii) (B) of NDPS Act.
48. Case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. Be put up for arguments and order on sentence on 04.09.2018.
Digitally
signed by
AJAY AJAY GOEL
Date:
GOEL 2018.09.04
15:24:17
+0530
Pronounced in the open court. (AJAY GOEL)
Dated: 31.08.2018 ASJ/Special Judge (NDPS)
Dwarka Courts/New Delhi.
Sessions Case No. 592/17 State Vs. Buridi Mohan Rao Page No. 39/39