Delhi District Court
State vs . Rajesh @ Jaggi, on 1 April, 2019
IN THE COURT OF AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 473-2017
In the matter of:
State Vs. Rajesh @ Jaggi,
S/o Sh. Kalu Ram,
R/o RZ-305, Brahampuri,
New Delhi.
FIR No. : 248/07
Police : Dabri
Station
Under : 20 NDPS Act
Sections
Date of Filing of Charge Sheet : 21.05.2007
Date of Assignment to this Court : 01.08.2017
at the state of evidence
Date of Arguments : 19.03.2019
Date of Judgment : 01.04.2019
JUDGMENT:
1. The case of the prosecution is that on 23.03.2007, SI (Retd) Raj Kumar was on patrolling duty along with ASI Ram Jeevan and ASI Manoj Kumar and when at about 9.15 p.m. they reached Dabri Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 1/42 Ganda Nala Road, accused herein was seen coming on foot from the side of Dwarka and on seeing the police party, accused turned towards MTNL Office. Thereafter, on suspicion, accused was chased by ASI Ram Jeevan, ASI Manoj and SI (Retd) Raj Kumar and was apprehended and at the time he was having a plastic bag in his right hand.
2. It is the case of prosecution that on checking by SI (Retd) Raj Kumar, his plastic bag was found containing a white colour polythene containing some material which on checking by IO SI Raj Kumar was found to be Charas. Thereafter, a notice U/S 50 NDPS Act was given to accused and he was apprised about his legal rights to be searched in the presence of any magistrate or any Gazetted Officer by SI (Retd) Raj Kumar and accused had given his reply on the copy of the notice stating his refusal therein that he does not want to be searched in the presence of any Magistrate or Gazetted Officer.
Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 2/42
3. Thereafter, contraband was weighed and on weighing, the recovered Charas was found to be 280 gram with white colour polythene and one sample of 40 Gram was taken and was converted into a pullanda. It is stated that the polythene containing remaining charas was kept in bag and was converted into pullanda and both the pullandas were sealed by SI (Retd) Raj Kumar with seal of RK and he also filled FSL form. It is stated that both the pullandas and FSL form were seized by SI (Retd)Raj Kumar and seal after use was given to ASI Ram Jeevan.
4. It is averred that thereafter SI (Retd)Raj Kumar informed the then SHO Inspector Inder Singh who reached the spot and made inquiries from accused and affixed the seal of IS on both the pullandas and FSL form and thereafter he left the spot with pullandas and FSL form.
5. It is further the case of prosecution that SI (Retd) Raj Kumar prepared rukka and sent ASI Ram Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 3/42 Jeevan to PS Dabri who presented the same before Duty Officer ASI Rajbir singh. It is averred that ASI Rajbir Singh recorded the FIR at about 10.45 p.m.. After FIR the investigation of this case was assigned to Inspector Gyanender Rana who reached the spot and prepared site plan.
6. It is stated that Inspector Gyanender Rana served a notice U/S 52 NDPS Act upon accused and thereafter, accused was arrested by him and on his personal search, cash Rs. 150/- and copy of notice was recovered. It is stated that the pullandas and FSL form were deposited in the malkhana by SHO Inspector Inder Singh and entries in register no. 19 were made. Thereafter, a report U/S 57 NDPS Act was prepared by Inspector Gyanender Rana and was sent to ACP through SHO. It is stated that on 27.04.2017, one sealed pullanda and FSL form were sent to FSL-Rohini through HC Sushil Kumar for examination and later on, report from FSL was Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 4/42 received. During trial second sample was sent to FSL, Ministry of Finance Govt. of India and the same was examined vide FSL report. After completion of investigation, the charge sheet was filed. Charge against the accused:
7. Vide order dated 07.08.2017, the charge for the offence under Section 20 of the NDPS Act was framed against the accused to which he pleaded not guilty and claimed trial and matter was posted for PE.
In evidence, ASI Rajbir Singh was examined as PW-1. He proved the copy of FIR and DD entries.
8. During trial of case, the present matter was remanded to the Court of Ld. ACMM, New Delhi for trial and disposal vide order dated 07.08.2008 as it was observed that the recovered substance falls under small quantity.
9. After assignment of case to Ld. M. M., the Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 5/42 charge was framed again vide order dated 21.09.2011 against the accused for the offence under Section 20/61/85 of the NDPS Act to which he pleaded not guilty and claimed trial.
10. In evidence, Retd. SI Raj Kumar was examined as PW-1. He deposed regarding apprehending of accused while he was on patrolling of area with Ct. Ram Jeewan and Ct. Manoj Kumar and recovery of contraband from the bag of accused.
11. Retd. SI Rajbir Singh was again produced and examined as PW-2. He being Duty Officer proved the FIR and his endorsement on rukka.
12. Inspector Inder Singh was examined as PW-3. He deposed that on 23.03.2007, SI Raj Kumar informed him on phone regarding apprehending of accused with case property. Consequently, he also reached at spot and made inquiries from accused.
13. Ct. Sushil Kumar was examined as PW-4.
He is a witness who had deposited the sealed Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 6/42 pulanda and FSL form in FSL rohini.
14. HC Ram Jiwan was examined as PW-5. He was also on pratrolling duty and had deposed regarding apprehending of accused with contraband and further investigation done in the matter in his presence.
15. Thereafter, vide order dated 24.07.2017, Ld. M.M., after placing reliance upon judgment passed by Hon'ble Supreme Court in case titled as State through Intelligence Office Narcotics Control Bureau Vs. Mushtaq Ahmad Etc. Criminal Appeal No. 1294-1295 of 2015 @ SLP (Crl) Nos. 8567-8568 of 2015, observed that Ld. Magistrate Court has no jurisdiction to try the present matter, hence file was sent to the Court of Ld. District & Sessions Judge who had assigned this case to the court of undersigned on 01.08.2017 at the stage of evidence.
Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 7/42 Witnesses examined:
16. The prosecution examined following witnesses in support of its case before this court who are as follows:-
PW2 is Inspector Gyanender Rana. He is a witness to whom the investigation of present case was assigned. He proved site plan as Ex. PW-2/A, Notice U/s 52 NDPS Act as Ex. PW-2/B, arrest memo of accused as Ex. PW-2/C, personal search memo as Ex. PW-2/D, carbon copy of report U/s 57 of NDPS Act as Ex. PW-2/E, report of FSL as Ex. PW-2/F, notice U/s 50 of NDPS Act as Ex. PW-2/G. PW3 is ASI Ram Jiwan. In his examination in chief, he identified the pulanda of seized contraband produced in court PW4 is ASI Manoj Kumar. He was also on pratrolling duty and had deposed regarding apprehending of accused with contraband and Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 8/42 further investigation done in the matter. He proved the reply of accused on the notice as Ex. PW-4/A and seizure memo as Ex. PW-4/B. PW5 is Retd. SI Raj Kumar. He was also on patroling duty on that day with other police officials.
He also deposed about apprehending of accused and recovery of contraband from his possession. He prepared rukka which was Ex. PW-5/A. PW6 is Retd. ASI Devender. He was posted as MHC(M) and he deposed regarding deposition of two sealed pulandas and FSL with him in malkhana and entry in this respect was proved as Ex. PW-6/A and copy of RC No. 5/21 was proved as Ex. PW-6/B. PW7 is HC Sushil Kumar. He deposed that on the instructions of SHO, he had taken one sealed pulanda and FSL form pertaining to this case to FSL Rohini vide RC No. 5/21.
17. On 26.02.2019, statement of accused with his counsel was recorded wherein he stated that he does Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 9/42 not dispute the registration of FIR and does not want to call ASI Rajbir and documents were admitted.
18. On 13.03.2019, statement of accused and his counsel was recorded separately wherein they stated that they did not dispute the proceedings conducted by Inspector Inder Singh, the then SHO and ACP Dwarka with respect to report U/s 57 NDPS Act without prejudice to the rights of accused and they be exhibited by Ld. APP and they also did not want to call them as witnesses and cross-examine them. They further submitted that they also did not want to cross-examine Chemical Examiner and submitted that his report may be exhibitted. In view of their statement, witness Inspector Inder Singh and ACP Sh. Bhag Singh were dropped from the list of witnesses and the relevant documents were exhibited.
19. Thereafter, Prosecution Evidence was closed on the request of Ld. APP vide order dated 13.03.2019 and matter was posted for recording of Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 10/42 statement of accused U/s 313 Cr. P. C.
20. Statement of accused U/s 313 Cr. P. C. was recorded on 18.03.2019 whereby all the incriminating evidence was put to him to which he denied all the allegations and pleaded his innocence. He stated that nothing was recovered from him and he was forced to sign some papers by police after giving beatings to him.
21. 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:
22. 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 was seen coming from the side of Dwarka and after Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 11/42 seeing the police party, he turned towards MTNL Office, Dabri with fast paces and on suspicion, he was chased and was apprehended. It is further the case of prosecution that he was having a plastic bag in which a white colour polythene was found containing some material and on checking by IO, it was found to be charas. It is stated by Ld. APP for State that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of the accused beyond reasonable doubt.
ARGUMENTS OF DEFENCE:
23. 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 Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 12/42 argued that the present accused has been falsely implicated.
24. 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 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;
Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 13/42
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;
10) Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652;
11) Tahir Vs. State 1996 (3) SCC 338;
12) S. K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal having Criminal Appeal No. 459 of 2017 dated 05.09.2018 passed by Hon'ble Supreme Court of India.
JUDGMENT RELIED UPON ON BEHALF OF ACCUSED.
1) D. K. Basu Vs. State of West Bengal (1997) 1 SCC Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 14/42 416;
2) Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1;
3) Arif Khan @ Agha Khan Vs. State of Uttarakhand, having CA No. 273/07 decided by Hon'ble Supreme Court of India;
4) Dharambir Vs. State having CRL. A. 658/17, decided by Hon'ble High Court of Delhi.
25. 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 NDPS Act:-
26. From perusal of record, it is revealed that this Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 15/42 is a case of chance recovery of contraband from accused. It is the case of prosecution that on 23.03.2007, SI (Retd) Raj Kumar was on patrolling duty along with ASI Ram Jeevan and ASI Manoj Kumar and when at about 9.15 p.m. they reached Dabri Ganda Nala Road, accused herein was seen coming on foot from the side of Dwarka and on seeing the police party, accused turned towards MTNL Office. Thereafter, on suspicion, accused was chased by ASI Ram Jeevan, ASI Manoj and SI (Retd) Raj Kumar and was apprehended and at that time he was having a plastic bag in his right hand. It is observed that on checking by SI (Retd) Raj Kumar, his plastic bag was found containing a white colour polythene containing some material which on checking by IO SI Raj Kumar was found to be Charas and consequently samples were drawn.
27. Records of present case reveals that the accused stands charged for the conscious possession Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 16/42 of 280 gm of charas which is an intermediate quantity i.e. higher than small quantity of 100 gm and lesser than commercial quantity of 1 kg of Charas 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 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.
28. In the present case, the accused was apprehended and was found in possession of gaanja Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 17/42 from his bag. Hence, it cannot be stated that he was not in conscious possession of the contraband i.e. Charas.
29. Now, this court will deal with the testimonies of prosecution witnesses recorded in the court.
30. As far as depositions of PW1 Retd. SI Raj Kumar, PW-4 ASI Manoj Kumar and PW-5 HC Ram Jiwan are concerned, all of them have deposed on similar lines to the effect that they were on patrolling duty and saw accused coming from the side of Dwarka on Foot and on seeing the police party, he turned towards MTNL Office. They further deposed that on suspicion, he was chased and was apprehended and on checking, recovery of contraband from his possession was effected.
31. All the above witnesses have proved the documents as per their role in the investigation of present case.
32. ASI Rajbir Singh was examined as PW-1 on Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 18/42 29.11.2007. He had duly proved the carbon copy of FIR as Ex. PW-1/A. He further proved true copies of DD entries as Ex. PW-1/B, PW-1/C and PW-1/D. This witness was not cross-examined by accused.
33. PW2 Inspector Gyanender Rana is second IO of this case as investigation of present case was assigned to him. During his examination in chief, he proved site plan as Ex. PW-2/A, Notice U/s 52 NDPS Act as Ex. PW-2/B, arrest memo of accused as Ex. PW- 2/C, personal search memo as Ex. PW-2/D, carbon copy of report U/s 57 of NDPS Act as Ex. PW-2/E, report of FSL as Ex. PW-2/F, notice U/s 50 of NDPS Act as Ex. PW-2/G. He correctly identified the accused in the court. In his cross-examination, nothing contrary has come. He denied the suggestion put to him that all the proceedings were conducted while sitting in PS or that he never went to spot to carry out the investigation
34. PW3 ASI Ram Jiwan is a star witness produced Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 19/42 by prosecution. During his examination in chief, he correctly identified the pulanda of seized contraband, sample pulanda and copy of notice U/s 50 of NDPS Act produced in court. In his cross-examination, Ld. Counsel for accused failed to create any dent. He had denied the suggestion to the effect that nothing incriminating was recovered from the possession of accused or that all the proceedings was conducted while sitting at PS or that no disclosure statement was given by accused.
35. ASI Manoj Kumar was examined as PW-4. He is also one of the recovery witness as he was also on pratrolling duty and had deposed regarding apprehending of accused with contraband and further investigation done in the matter. He proved the reply of accused on the notice as Ex. PW-4/A and seizure memo as Ex. PW-4/B.
36. In his examination in chief, he deposed that "Accused was having a plastic bag in his right Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 20/42 hand. SI Raj Kumar checked that plastic bag in which a white colour polythene was found containing some material which on checking by IO SI Raj Kumar was found Charas. 3-4 passerby were asked to join the investigation but all of them left the spot without disclosing their names. A notice under section 50 NDPS Act was given to him and informed that if he wants to be checked before any Magistrate or Gazetted Officer, they can be called at the spot but he refused to be searched in front of any Magistrate or Gazetted Officer. He was also informed that before his search, he can also take search of police officials present there but the accused refused to take search." From the perusal of above deposition, it is crystal clear that passerby /public persons who were present there were asked to join the investigation by the IO and efforts were made by IO to join them but all of them Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 21/42 left the spot without disclosing their names. It is further clear that notice under section 50 NDPS Act was served upon accused as per law and he was clearly informed about his legal right that if he wants to be checked before any Magistrate or Gazetted Officer, they can be called at the spot but he refused to be searched in front of any Magistrate or Gazetted Officer. It is further clear that accused was also informed that before his search, he can also take search of police officials present there but the accused refused to take search. So due compliance as per law was made and legal rights of the accused were explained to accused in clear terms by IO which he refused. Nothing contrary has come in his cross- examination conducted by counsel for accused.
37. Retd. SI Raj Kumar was examined as PW-5 in this case. He prepared rukka which was Ex. PW-5/A. He has also deposed in same fashion as of PW-4 regarding serving of legal notice U/s 50 upon accused Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 22/42 and apprising the accused about his legal rights.
38. PW6 Retd. ASI Devender is a formal witness produced by prosecution who deposed regarding deposition of two sealed pulandas and FSL with him in malkhana and entry in this respect was proved as Ex. PW-6/A and copy of RC No. 5/21 as Ex. PW-6/B.
39. HC Sushil Kumar was examined as PW-7. He deposed that on the instructions of SHO, he had taken one sealed pulanda and FSL form pertaining to this case to FSL Rohini vide RC No. 5/21. This witness was not cross-examined by Ld. Counsel for accused.
40. So from above discussion, it is observed that all material documents have been duly exhibited and proved by prosecution as per law.
41. Furthermore, accused has not disputed the registration of FIR and he did not wish to cross- examine concerned witness. Similarly, during trial, accused did not dispute the proceedings conducted by Inspector Inder Singh and ACP Dwarka regarding Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 23/42 report U/s 57 NDPS Act and they were not cross- examined. Further, he did not wish to cross-examine the chemical examiner.
42. This court has gone through the contents of FSL Report Ex. CR which says "On the basis of microscopic, Chemical and chromatographic Examination, it is concluded that the sample under reference is Charas". By way of this report, it is duly proved that contraband recovered from the possession of accused was Charas.
43. 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. Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 24/42
44. The witnesses produced by prosecution are wholly reliable and trustworthy and nothing could be 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 - Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 25/42 maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
45. 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.
46. The present case is a case of recovery of considerable quantity of Charas. It is not possible to plant such a huge quantity upon the accused. Moreover, there is no reason to falsely implicate the accused. Furthermore, the present case is a case of chance recovery and thus there is no question of planting the contraband upon accused. In the case of State of Punjab Vs. Balwant Rai 2005 (1) JCC Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 26/42 (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) 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."
47. 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 280 gm of Charas 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 Charas.
48. The Ld. Counsel for accused has argued that Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 27/42 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 NDPS Act Ex. PW-2/G 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.
49. 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 Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 28/42 intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
50. The question which thus arises for consideration 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 Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 29/42 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 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, Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 30/42 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 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.
Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 31/42
51. 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 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 Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 32/42 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 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."
52. I have perused the notice U/s 50 NDPS Act Ex. PW-2/G whereby accused was apprised that his Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 33/42 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 Ex. PW-4/A on said notice, he refused to avail the same. The word mentioned in notice is "Kanooni Adhikar". The contents of whole notice are in Hindi. Moreover, accused had put his signatures on notice U/s 50 of NDPS Act and on reply in Hindi language. Not only this, but accused had put his signatures in Hindi language itself only on all relevant document prepared in the present case including notice U/s 52 NDPS Act Ex. PW-2/B, seizure Memo Ex. PW-4/B, personal search memo Ex. PW-2/D, arrest memo Ex. PW-2/C. So there is sufficient compliance and above judgment is not applicable in the present case.
53. The prosecution witnesses are clear and consistent in their deposition about the service of notice U/s 50 of NDPS Act before taking search of Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 34/42 accused. The notice U/s 50 of NDPS Act Ex. PW-2/G 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. So, there is no defect with respect to section 50 of NDPS Act. Even otherwise, recovery of contraband in the present case was not effected from the person of accused but from bag, hence effect of Section 50 of NDPS Act losses its significance. In these circumstances, the judgment titled as Arif Khan @ Agha Khan Vs. State of Uttarakhand, having CA No. 273/07 decided by Hon'ble Supreme Court of India and Dharambir Vs. State having CRL. A. 658/17, decided by Hon'ble High Court of Delhi are not applicable to the facts of the present case. Even otherwise, Ld. Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 35/42 APP for the State has relied upon judgment titled as S. K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal having Criminal Appeal No. 459 of 2017 dated 05.09.2018 where Hon'ble Mr. Justice J. Dhananjay Y Chandrachud of Hon'ble Supreme Court has upheld the conviction in a case where recovery was made not in person of accused but from the bag and section 50 of NDPS Act was found to be not applicable and certain interpretation was carried out.
54. 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 Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 36/42 the witnesses produced by the prosecution.
55. In the light of consistent and reliable testimony 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.
56. 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.
57. 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 Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 37/42 observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers 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 Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 38/42 show that the evidence of the police officer is either unreliable or at least unsafe to be acted 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". Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 39/42
58. It is evident from the testimony of prosecution witnesses specially PW-4 ASI Manoj Kumar and PW-5 Retd. SI Raj Kumar that efforts were made to join the public witnesses but none of them inclined to join and went away without disclosing their names. Moreover, recovery in the present case was effected at about 09.15 p.m. and the public witnesses were not easily available at that time and circumstances would have been different, if recovery was effected in day light or evening because at that time, there is possibility of easy availability of public witnesses. 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 Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 40/42 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 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 Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 41/42 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."
59. Hence, considering the overall facts and circumstances of the present, the accused Rajesh @ Jaggi is held guilty for offence of possession of Charas U/s 20 (b) (ii) (B) of NDPS Act.
60. 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 03.04.2019. Digitally signed
AJAY by AJAY GOEL Date: 2019.04.03 GOEL 16:09:34 +0530 Pronounced in the open court. (AJAY GOEL) Dated: 01.04.2019 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi. Sessions Case No. 47317 State Vs. Rajesh @ Jaggi Page No. 42/42