Delhi District Court
State vs . Abdul Latif And Ors. on 24 May, 2014
State Vs. Abdul Latif and Ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL
JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 01/09
ID No. 02403R0008302009
FIR No. 55/08
PS Special Cell
u/s 21/29 NDPS Act
State Versus 1. Abdul Latif
S/o Sh. Asola Mohd.
R/o H.No. 88, Olowogo Street,
PS Poko, Logas State, Nigeria
2. Mohd. Akhtar @ Raja
S/o Mohd. Navi
R/o Gali no. 3, Jheel Park,
Welcome, Delhi.
Date of Institution : 02.01.2009
Judgment reserved on : 13.05.2014
Date of pronouncement : 24.05.2014
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21 and section 29 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as FIR No. 55/08 Page 1 of 60 State Vs. Abdul Latif and Ors.
"NDPS Act") and section 420/468/471 of the Indian Penal Code (hereinafter referred to as 'IPC').
2. Briefly stated, the facts that can be culled out from the assertions made in the complaint and the documents filed therewith are as follows :
(a) On 19.06.2008, one complaint was received at the office of Special Cell, Rohini from DTDC Courier and Cargo, Naraina Industrial Area that a parcel received by it for consignment to South Africa to one of its franchisees at Chandni Chowk appeared to be containing some suspicious substance. Pursuant to the complaint a raiding team from Special Cell headed by Inspector Attar Singh went to the office of said courier company and conducted the search of the parcel in question and and 1.2 Kg of heroin was assertedly recovered from the said parcel and the FIR No. 33/08 was registered with respect to the complaint and the recovery made. During the investigation of the said FIR some mobile numbers namely 9971844745 (the number pertaining to the consignor of the said parcel), and four other mobile numbers namely 9958021050, 9971651473, 9213592118 and 9971098277 were put under interception/surveillance. The said surveillance revealed that the aforementioned two mobiles 9958021050 and 9971651473 were being used by a person having a Nigerian accent to talk to a person using the mobile numbers 9213592118 and 9971098277 and the talks were FIR No. 55/08 Page 2 of 60 State Vs. Abdul Latif and Ors.
pertaining to delivery of some substance. The investigating agency in the said case i.e. FIR no. 33/08 could not however make much headway.
(b) In the meanwhile, on 01.09.2008 at about 7:00 p.m., Inspector Attar Singh received a secret information that one person namely, Mohd. Akhtar @ Raja who is indulging in supply of heroin would be coming at outer ring road, near CNG petrol pump, F block, Gandhi Vihar between 8:158:45 p.m. on the said day itself to deliver a large consignment of heroin to one Abdul Latif @ Johnson @ LIG, Nigerian national, who further smuggles heroin to other countries.
(c) The information was brought to the notice of ACP Ravi Shankar who gave directions for necessary action to be taken. DD entry no. 14 was also lodged in this regard in the Special Cell and as per the directions of the senior officials, a raiding team comprising of Inspector Attar Singh, SI Upender Solanki, SI Prahlad, ASI Ashok, ASI Shamsher, ASI Raj Singh, HC Bijender, HC Raj Singh, HC Satender, Ct. Hawa Singh and secret informer left the office in govt. vehicle no. DL 1CJ 3566 and private car bearing no. DL 5CC 1464 at about 07:40 PM for the spot.
(d) On reaching the spot, IO Inspector Attar Singh requested 6 passersby, 4 vehicle owners and two employees of said petrol pump to join the raiding team but none of them agreed to do so. The members of the raiding team then positioned themselves near the spot and IO Inspector FIR No. 55/08 Page 3 of 60 State Vs. Abdul Latif and Ors.
Attar Singh took position alongwith SI Upender, SI Prahlad, HC Bijender and informer among the bushes near outer ring road.
(e) At about 08.20 PM, one person came from the side of outer ring road and stood at a distance of 5060 meters on outer ring road and started waiting for someone. The said person was identified as the suspect Raja by the secret informer. He was having a polythene bag in his right hand. After 5 minutes, one more person came from F block side and started talking with Raja and the said person was identified as the suspect Abdul Latif by the secret informer. The accused Raja then handed over the polythene that he was carrying to Abdul Latif and at that point of time, both were surrounded by the raiding team.
(f) The IO introduced himself and the members of the raiding team to them and on enquiry, the accused confirmed that their names were Mohd. Akhtar @ Raja and Abdul Latif. Inspector Attar Singh gave this information to ACP Sh. Ravi Shankar on his mobile who instructed Inspector Attar Singh to take legal action. Meanwhile some public persons gathered at the spot and IO Inspector Attar Singh requested 34 persons to join the raiding team but none of them agreed to do so. Inspector Attar Singh then disclosed the secret information to the accused persons and they were also informed about their legal rights and were issued notices u/s 50 of NDPS Act and were made to understand that they have a legal FIR No. 55/08 Page 4 of 60 State Vs. Abdul Latif and Ors.
right to be searched before a Magistrate or a Gazetted Officer. Both the accused refused to exercise the said rights and their refusal was written on the notices by accused persons themselves.
(g) Thereafter, Inspector Attar Singh conducted the cursory search of the accused Abdul Latif and took from his right hand the polythene that had been handed to him by Raja. The said polythene was found containing one transparent polythene having brown colour powder, which on testing with field testing kit, gave positive result for heroin. The recovered heroin was weighed and its total weight came out to be one kg. Two samples of 5 grams each were taken out from the recovered heroin and were put in two separate polythenes and were converted into cloth pullandas which were then given Mark A and B. The remaining 990 grams heroin was also converted into a cloth pullanda and given Mark 'C'. All the pullandas were sealed by the IO with the seal of 'ASY'. The FSL Form was filled and the impression of the seal was then affixed on the Form FSL. Seizure Memo was also prepared. Accused Mohd. Akhtar @ Raja was also formally searched but no contraband was recovered during his search.
(h) The Rukka was prepared and was sent alongwith the all the pullandas, carbon copy of seizure memo and forms FSL through HC Bijender for registration of FIR. Further investigation was handed over to ASI Rakesh who came to the spot and prepared the site plan, arrested the FIR No. 55/08 Page 5 of 60 State Vs. Abdul Latif and Ors.
accused persons and on interrogation the accused Abdul Latif inter alia disclosed that a week ago he had received supply of ½ kg. of heroin from accused Mohd. Akhtar @ Raja and same was lying in his residence i.e F9394, Gandhi Vihar. Accused Mohd. Akhtar @ Raja also inter alia disclosed that a week back he had brought ½ kg. heroin from Bareilly and had given it to Abdul Latif and that deal was conducted through mobile phones of Abdul Latif bearing no. 9958021050 and 9971651473 from his mobile bearing no. 9213592118. The accused persons on their search were found to be carrying the mobiles with the said numbers and the same were taken into possession.
(i) Based on the said disclosures, both the accused persons were taken to the house of accused Abdul Latif at F9394, Gandhi Vihar where on the pointing out of accused Abdul Latif, one art activity book was recovered from a bag kept in his house. On minute inspection of the said book, it was found that the side cover (gatta) of the same was a bit heavier. The said side covers were cut open and matiala colour powder packed in transparent polythene packet covered with carbon paper and tapes was recovered therefrom, which on testing with field testing kit, gave positive result for heroin. The recovered heroin was weighed and its total weight came out to be 500 grams. Two samples of 5 grams each were taken out from the recovered heroin and were put in two separate FIR No. 55/08 Page 6 of 60 State Vs. Abdul Latif and Ors.
polythenes and were converted into cloth pullandas which were then given Mark D and E. The remaining 490 grams heroin was also converted into a cloth pullanda and given Mark 'F'. The art activity book and the packaging material was also converted into cloth pullanda and give mark 'G'. All the pullandas were sealed by the IO with the seal of 'RK'. The FSL Form was filled and the impression of the seal was then affixed on the Form FSL. One lap top was also seized. Seizure Memo was also prepared.
(j) Both the accused persons were then produced before SHO, PS Special Cell, Lodhi Colony and the case property was then deposited with the malkhana and statements of witnesses were recorded. Reports u/s 57 NDPS Act pertaining to the seizure and arrest of accused persons were submitted to the senior officials. The sample pullandas of this case were sent to FSL, Rohini.
(k) During the course of further investigation, since the mobile numbers being used by the accused persons and recovered from them were found to be the same numbers that were under interception in FIR No. 33/08, an application was filed for taking the voice samples of accused persons for comparison with the voices appearing in the intercepted mobile conversations. Pursuant to the permission been granted by the court, both the accused persons were taken to FSL for recording of their voice samples. Though accused Mohd. Akhtar got recorded his voice FIR No. 55/08 Page 7 of 60 State Vs. Abdul Latif and Ors.
sample, accused Abdul Latif refused to do so. The voice sample of accused Mohd. Akhtar alongwith the intercepted mobile conversations were sent to the FSL expert for analysis. The call detail records of the mobiles recovered from the accused persons were also collected. After receiving the reports from FSL with respect to the contraband and the voice samples, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed against both the accused persons by the Ld. Predecessor of this court vide order dated 05.06.2009 for the offences punishable u/s 21 (c) r/w section 29 of the NDPS Act and against Abdul Latif for the offences punishable u/s 21
(b) of the NDPS Act and 420/471 IPC. Both the accused persons pleaded not guilty to the said charges and claimed trial.
4. In order to prove its case against the accused persons, the prosecution has examined 18 witnesses in all.
5. PW3 HC Bijender, PW13 Inspector Attar Singh and PW15 SI Upender Solani are members of the raiding team which had apprehended the accused persons. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, DD No. 14, in which the secret information was reduced has been exhibited as Ex.PW5/A. The notices issued to the accused Mohd. Abdul Latif and Mohd. Akhtar u/s 50 of the NDPS Act FIR No. 55/08 Page 8 of 60 State Vs. Abdul Latif and Ors.
have been exhibited as Ex.PW3/A and Ex.PW3/B respectively. The seizure memo prepared with respect to the recovery of the heroin from accused Abdul Latif has been exhibited as Ex.PW3/C. The tehrir prepared at the spot has been exhibited as Ex.PW13/A. The report prepared by PW13 u/s 57 NDPS Act has also been proved by him as Ex.PW5/C.
6. PW1 Duty officer ASI Rajpal Singh has interalia deposed that he was the duty officer on 1/9/2008 and that on this date he had received the rukka of the present case through HC Bijender Singh and had registered the FIR, Ex.PW1/A.
7. PW2 Pradeep Kumar is a public person who has deposed that he had witnessed the voice recording of accused Mohd. Akhtar and he has identified his signatures on the documents prepared with respect to the same.
8. PW4 Inspector Govind Sharma has interalia deposed that on 1/2 September, 2008, he was posted as SHO, PS Special Cell, Lodhi Colony and on that day, HC Bijender Singh had produced before him, three sealed pullandas, one FSL Form and carbon copy of seizure memo. As per the deposition of this witness, he had put the FIR number, his initials and his seal 'GS' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana by ASI Paramjeet Singh FIR No. 55/08 Page 9 of 60 State Vs. Abdul Latif and Ors.
MHC(M). He has further deposed that at about 3:00 AM SI Rakesh Kumar had produced before him the accused persons, four pullandas and one FSL Form. As per the deposition of this witness, he had put the FIR number, his initials and his seal 'GS' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana by ASI Paramjeet Singh MHC(M).
9. PW5 SI R. Srinivasan has deposed that he is posted as SO ACP, Special Cell and as per the record produced by this witness, on 2/9/2008 DD no. 14 regarding secret information, report u/s 57 NDPS Act regarding seizure of heroin, prepared by Inspector Attar Singh and report u/s 57 NDPS Act regarding seizure of heroin from the house of accused Abdul Latif and arrest of both the accused persons, prepared by ASI Rakesh Kumar were received in the office of ACP and that the said reports were put before ACP. The reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW5/A to Ex.PW5/F.
10.PW6 ASI Ashok has interalia deposed that on 18/9/2008 on the directions of IO, he had gone to PS Special Cell, Lodhi Colony and had taken pullandas mark A and B along with two FSL forms from MHC(M) and had got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M).
FIR No. 55/08 Page 10 of 60 State Vs. Abdul Latif and Ors.
11.PW7 SI Hawa Singh has produced the summoned record i.e. DD register pertaining to Special Cell, NR Rohini before the Court and has proved the relevant DD entries as Ex.PW7/A to Ex.PW7/D.
12.PW8 M.N. Vijayan, Nodal Officer from Tata Tele Services Ltd. has produced before the court, the call detail records of the telephone number 9213592118 for the period 1/05/2008 to 1/09/2008 and the same have been exhibited as Ex.PW8/C. The said witness has also produced the customer application form and its annexures with respect to the said number and as per the said documents Ex.PW8/A and mark B, the aforementioned phone was subscribed in the name of one Sahajan.
13.PW9 Smt. Kanika Gupta has inter alia deposed that on 15/10/2008 police officials from Special Cell had came to her house and she had handed over to them, the documents pertaining to ownership of house no. F94, Gandhi Vihar. This witness has further deposed that she had given the first floor of the said house to one Nigerian namely Johnson in the month of August 2008 on rent for Rs. 5,000/ and she has identified accused Abdul Latif as the said Johnson in the court.
14.PW10 SI Parmod Kumar has inter alia deposed that on 19/6/2008, 17/7/2008 and 26/7/2008 ACP Ravi Shankar had passed orders for monitoring mobile numbers, landline number and IMEI numbers in FIR No. 55/08 Page 11 of 60 State Vs. Abdul Latif and Ors.
connection with the case FIR No. 33/08 and the same have proved as Ex.PW16/A1 to C1.
15.PW11 Dr. Madhulika Sharma, Assistant Director, FSL, Rohini has proved the report prepared by her with respect to the analysis conducted by her of the samples sent to FSL. The said report has been exhibited as Ex. PW11/A and as per the said report, the sample mark A was found to contain acetylcodeine, monoacetylmorphine and diacetylmorphine and sample mark D was found to contain acetylcodeine, monoacetylmorphine, Diacetylmorphine, paracetamol and Caffeine and percentage of diacetylmorphine were found therein to be 58.0% and 28.2% respectively.
16.PW12 Deepak Kanda, Nodal Officer from Airtel office has produced before the court, the call detail records of the telephone number 9971651473 for the period 1/6/2008 and 1/9/2008 and the same have been exhibited as Ex.PW12/E1 to Ex.PW12/E44. The said witness has also produced the customer application form and photocopy of passport with respect to the said number and as per the said documents Ex.PW12/A and Ex.PW12/B, the aforementioned phone was subscribed in the name of one Egbonwon Akinjide Daniel r/o WZ 124/5, Gali no. 12, Krishna Puri, Tilak Nagar, New Delhi, permanent r/o Lagos Nigeria. FIR No. 55/08 Page 12 of 60 State Vs. Abdul Latif and Ors.
17.PW14 ASI Rakesh Kumar is the second investigating officer of the present case who has inter alia deposed that he had reached the spot on 1/9/2008 and on reaching the spot he had met Inspector Attar Singh who had produced before him the accused persons and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW13/B, had seized the mobile phones of accused persons vide seizure memo Ex.PW13/I and Ex.PW13/J and had then interrogated the accused persons and had thereafter recorded the disclosure statements of both accused persons, Ex.PW13/E and Ex.PW13/H and then had arrested them vide arrest memos, Ex.PW13/C and Ex.PW13/F. As per his depositions pursuant to the disclosures made by the accused persons, he along with the raiding party had reached the house of accused Abdul Latif at H.No. F9394, Gandhi Vihar, Mukherjee Nagar and at his instance had recovered 500 gm of heroin from his house. The seizure memos prepared with respect to the recovery of the heroin from the house of accused Abdul Latif and laptop recovered from the house of accused Abdul Latif have been exhibited as Ex.PW13/L and Ex.PW13/M respectively. This witness has also inter alia proved the report prepared by him u/s 57 NDPS Act as Ex.PW14/A. According to this witness during further investigation after obtaining permission from the court he had got recorded the voice sample of accused Mohd. Akhtar while the FIR No. 55/08 Page 13 of 60 State Vs. Abdul Latif and Ors.
accused Abdul Latif had refused to give his voice sample.
18.PW16 Sh. Giriraj Sharma, Warder Home Department has proved on record the orders that were passed by Principal Secretary (Home), Sh. G.S. Patnayak granting permission with respect to the interception of the relevant mobile numbers in the present case. The said orders have been proved as Ex.PW16/A, Ex.PW16/B and Ex.PW16/ C.
19.PW17 ASI Pramjeet Singh has deposed that he was posted as MHC(M) at PS Special Cell on 2/9/2008 and this witness has proved the entries in the malkhana register maintained by him with respect to case property, pullandas, etc deposited with him by the investigating officials.
20.PW17 Subhash Batra, Superintendent Jail no. 7 has placed before the court the original record dated 1/10/2008 regarding the period spent by accused Abdul Latif @ Johnson @ Abdullah @ LIC, Mohd. Akhtar @ Raja and Hemant Bhati in judicial custody earlier in other cases. According to this witness this record was sought by Inspector Attar Singh vide letter Ex.PW17/B.
21.PW18 Sh. Deepak Kumar Tanwar, Senior Scientific Officer, FSL, Rohini has inter alia stated before this court that he had examined the specimen voice sample of accused Mohd. Akhtar with that of the questioned intercepted mobile conversation sent to him by the FIR No. 55/08 Page 14 of 60 State Vs. Abdul Latif and Ors.
investigating officials. As per his report Ex.PW18/A the questioned voice was found to be matching with the specimen voice sample of accused Mohd. Akhtar in respect of its linguistic, phonetic and other general spectographic parameters.
22.Apart from the aforementioned witnesses, one Doctor Lingraj Sahoo, Senior Scientific Officer, FSLRohini has also been examined as court witness CW1 as he is the expert who had conducted the analysis of the fresh samples drawn from the case property pursuant to an application filed by the accused persons in this regard and allowed by this court.
23.The entire aforementioned incriminating evidence was put to both the accused persons and their statements u/s 313 Cr.P.C were recorded. Both the accused persons in their statements tendered u/s 313 Cr.PC have inter alia stated that they have been falsely implicated in this case and that no contraband had been recovered from their possession or at their instance.
24.On behalf of the State, Ld. APP Sh. Rajiv Mohan has submitted that the evidence brought forward by the prosecution in the present case sufficiently proves the guilt of the accused persons beyond all reasonable doubt. He has pointed out that the case put forward by the prosecution is also supported by the scientific evidence namely the intercepted mobile conversations that took place between the accused persons, before their apprehension. According to him the said mobile conversations amply FIR No. 55/08 Page 15 of 60 State Vs. Abdul Latif and Ors.
prove that both the accused persons were in the business of illicit trafficking of heroin. His further submission is that in the present case all the mandatory provisions of the NDPS Act were duly complied by the investigating officers with respect to the search and seizure proceedings that were conducted at the spot. It is therefore his prayer that both the accused persons must be held guilty of the offences that they have been charged with.
25.On the other hand, Ld. Counsel Sh. A.K. Sahoo on behalf of accused Abdul Latif and Ld. Counsel Sh. Amit Yadav on behalf of accused Mohd. Akhtar have firstly contended that no public witnesses were joined by the investigating officials in the present case and this itself creates a doubt on the entire case put forward by the prosecution. It has also been submitted by them that the mobile phones shown to have been recovered from the accused persons were infact planted upon them and it is therefore that the prosecution has chosen not to examine the actual subscribers of the said mobile phones. It is also the contention of Ld. Counsel Sh. Amit Yadav that infact the voice sample of accused Mohd. Akhtar was never taken by the investigating agency and investigating officials had on their own fabricated the voice sample of accused Mohd. Akhtar and sent it to FSL. Both the Ld. Defence counsels have further submitted that the fact that the case property has been tampered with in FIR No. 55/08 Page 16 of 60 State Vs. Abdul Latif and Ors.
the present case is evident from the variation in the two FSL reports submitted on record. According to the Ld. Defence counsels the said two reports show that the percentage of diacetylmorphine found in the first sample had reduced from 58% to 2.1% when a fresh sample from the case property was again analysed. According to them the said huge variation only points out to the fact that the case property has been tampered with and the samples originally sent to FSL were not drawn out from what was allegedly recovered. The delay in sending the samples to FSL and not handing the seal after use to any public witness are also grounds taken on behalf of the defence to contend that the case property was infact tampered with. In addition Ld. Counsel Sh. Yadav has also contended that there has been a non compliance of section 42 and section 50 of the NDPS Act. He has also submitted that the wife of the accused Mohd. Akhtar has entered the witness box and has deposed about the true manner of apprehension of her husband and his contention is that the said deposition must not be brushed aside by this court only because of the relationship of the said lady with accused Mohd. Akhtar In support of their contentions Ld. Defence counsels have relied upon the following judgments:
● Peeraswami Vs. State 2007(2) JCC Narcotics 80. ● Ratan Lal Vs. State 32(1987) DLT 1.FIR No. 55/08 Page 17 of 60
State Vs. Abdul Latif and Ors.
● Eze Val Okeke @ Val Eze Vs. Narcotics Control Bureau 2005 (1) JCC (Narcotics) 57.
● Subhash Chand Mishra Vs. State 2002(2) JCC 1379 ● James Eazy Franky Vs. DRI 2012(3) JCC (Narcotics) 81 ● Rajroop Singh Vs. State of Haryana 2012(2) JCC 37 ● Jarnail Singh Vs. State of Punjab 2008(4) JCC (Narcotics) 204 ● Dharambir Vs. State of Haryana 2008(4) JCC (Narcotics) 197 ● Rajesh Jagdamba Avasthi Vs. State of Goa 2004(3) JCC 1827 ● Remgul @ Remulal Vs. State of MP Cri. Appeal Nos. 1154 and 1177 of 1997.
● State of Haryana Vs. Ram Singh 2002(1) RCR Criminal 443 ● Sanjay Vs. State of Haryana 2005(2) RCR Criminal 561 ● Nilesh Dinkar Paradkar Vs. State of Maharashtra 2011(3) JCC 1972 ● Union of India Vs. Farid 2011(4) JCC (Narcotics) 213 ● Rahul Saini Vs. State 2006(3) JCC (Narcotics) 134
26.In rebuttal Ld. APP Sh. Rajiv Mohan has submitted that the mere fact that the public witnesses refused to join the proceedings despite the request of the investigating officials, cannot be a ground to discard the testimony of the police officials when the same is trustworthy and reliable. He has forcefully submitted that present is not a case of false implication for the investigating agency has brought scientific evidence in the form of intercepted mobile conversations between the accused persons which prove that both of them were in the business of dealing with drugs. He has also contended that the evidence on record does not at FIR No. 55/08 Page 18 of 60 State Vs. Abdul Latif and Ors.
all show that there was a possibility of tampering with the samples or the case property and that when the seals on the samples were found intact by the Chemical Examiner, the mere delay in sending the said samples to the FSL is not fatal to the case of the prosecution. He has further submitted that the FSL expert in his deposition has clearly explained the reasons for the variation in the percentage of diacetylmorphine in the two samples analysed in the present case and therefore according to him the said variation also cannot be relied upon by the defence to contend that the case property has been tampered with. In support of his contentions, Ld. APP has relied upon the following judgments:
● Bilal Ahmed Vs. State 2011 III AD (Cr.) DHC 293 ● Ramesh Kumar Rajput @ Khan Vs. State of NCT of Delhi DHC 2008 (Manu/DE/0786/2008) ● Hardeep Singh Vs. State of Punjab AIR 2009 SC 432 ● Damru Vs. State of Chhattisgarh 2013 (Cri.L.J. 610) ● Jarnail Singh Vs. State of Punjab 2011 (ii) JCC 86 ● Piara Vs. State of Punjab 2009 Cri.L.J. 501 ● Gunesh Vs. State of Haryana 2009 Cri. L.J. 1652.
27.I have considered the submissions made by all the Ld. Counsels and have carefully perused the entire record and the judicial dicta referred to by the Ld. Counsels. As narrated hereinabove in the present case there are two recoveries of contraband assertedly made by the Investigating Agency one from both the accused Abdul Latif and Mohd. Akhtar on FIR No. 55/08 Page 19 of 60 State Vs. Abdul Latif and Ors.
1/9/2008 at about 8:20 p.m. near the CNG pump, F block Gandhi Vihar road, near outer ring road and the second on 2/9/2008 at about 1:45 a.m from the house of accused Abdul Latif.
28.This court will first consider the case put forward by the prosecution with respect to the apprehension of the accused persons and the recovery made from them on 1/9/2008 at about 8:20 p.m. near the CNG pump, F block Gandhi Vihar road, near outer ring road. Though it is a well settled principle of criminal jurisprudence that prosecution has to prove its case beyond all reasonable doubt and that it is not for the accused persons to prove their defence, it is also equally true that if the defence being put forward by the accused persons is found to be patently false, the version being put forward by the prosecution is not to be doubted merely on the basis of presumptions and conjectures. In a judgment pronounced by the Hon'ble Supreme Court in a case titled as Iqbal Moosa Patel Vs. State of Gujarat reported in 2011(1) JCC (Narcotics) 35 it has been observed by the Hon'ble Supreme Court that though it is true that under our existing jurisprudence in a criminal matter, we have to proceed with a presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man and the prosecution is not required to meet any and every hypothesis put forward by the accused. It was further observed that a reasonable doubt is not an FIR No. 55/08 Page 20 of 60 State Vs. Abdul Latif and Ors.
imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense and must necessarily grow out of the evidence in the case.
29.Now let us examine, what is the version of the prosecution with respect to the interception of the accused persons Abdul Latif and Mohd. Akhtar and what are the doubts that are sought to be raised by the defence with respect to the said version. As narrated hereinabove, as per the version put forward by the prosecution, on receiving a secret information that on 01.09.2008 in between 08.15 PM08.45 PM accused Mohd. Akhtar would be coming at outer Ring Road, near CNG Petrol Pump, F Block, Gandhi Vihar to deliver a huge consignment of heroin to accused Abdul Latif, a raiding team was on surveillance in the said area and saw that both the accused persons came to the aforementioned spot at about 08.2008.25 PM and accused Mohd. Akhtar handed over a polythene to Abdul Latif and that on interception of both the accused persons, the polythene in question was found to contain 1 Kg of heroin. It is also the case of the prosecution that prior to this recovery, both the accused persons were in regular telephonic touch with each other and used to fix deals of supply of heroin telephonically.
30.The said version of the prosecution has been denied by both the accused persons in their statements u/s 313 Cr.PC. Accused Abdul Latif in the FIR No. 55/08 Page 21 of 60 State Vs. Abdul Latif and Ors.
said statement has inter alia stated that before his arrest in this case, he did not know accused Mohd. Akhtar at all and that he was not apprehended alongwith him from outer ring road but was infact picked up from EBlock, Gandhi Vihar and forcibly taken to the Special Cell office where he was tortured by the police officials to sign many blank and written documents. Accused Mohd. Akhtar has also similarly stated in his statement u/s 313 Cr.PC that before his arrest in this case he did not know Abdul Latif at all and that he had also been forcibly picked up from a bus stand outside Seelampur metro station on 01.09.2008 at about 0910.00 AM. This accused in support of his defence has produced his wife Ms. Tarannum, in the witness box who has inter alia deposed that on 1/9/2008 at about 9:0010:00 AM, she along with her husband Akhtar were standing near Seelampur metro station for going to Kasturba Gandhi Hospital for her pre natal check up when 34 persons took away her husband along with them on the pretext that they have to make an inquiry from him and told her to go back and that it is only on next day she came to know that her husband had been arrested in the present case.
31.After carefully examining the entire material on record, it is to be firstly and fore mostly observed that in view of the evidence produced on record by the prosecution, it cannot be at all said that the accused persons were not known to each other at all and have been falsely implicated in this FIR No. 55/08 Page 22 of 60 State Vs. Abdul Latif and Ors.
case. As narrated in the facts hereinabove, the mobiles having number 9958021050 and 9971651473 recovered from accused Abdul Latif in the present case and the mobile bearing number 9213592118 recovered from accused Mohd. Akhtar were already under interception after the registration of FIR No. 33/08 on 19.06.2008. The conversations that took place using the aforementioned mobiles have been proved by the prosecution during trial and the same make it clear that both the accused persons Abdul Latif and Mohd. Akhtar were already known to each other.
32.Now the authenticity and the admissibility of the aforementioned conversations in question, is being questioned on behalf of the defence mainly on two grounds: firstly that the hard disk of the original computer system from which the intercepted calls were copied in CDs (that have been exhibited and heard during trial) was not seized during investigation and secondly that the intercepted phones have not been shown to be subscribed in the names of the accused persons and that therefore it cannot be held that the conversations proved on record were made by the accused persons only. I am afraid that the said contentions of the defence have no merits whatsoever, for in terms of the provisions of Section 65B of the Evidence Act, which makes computer generated evidence admissible, the prosecution was not required to seize the hard disk of the FIR No. 55/08 Page 23 of 60 State Vs. Abdul Latif and Ors.
computer system where the calls were firstly automatically intercepted. Further the depositions of PW13 Inspector Attar Singh and PW14 SI Rakesh Kumar make it clear that the CDs containing the intercepted mobile conversations are admissible in evidence for the statements given by them in their depositions clearly reveal that the conditions laid down by section 65B of the Evidence Act, in the context of computer generated evidence, have been complied with.
33.PW13 Inspector Attar Singh in his deposition has inter alia stated that during the investigation of case FIR No. 33/08, he had been monitoring the interception of the mobile phones in question and that on 01.09.2008 on the request of ASI Rakesh, he had prepared a folder of 26 intercepted calls pertaining to the mobile numbers in question. He has further deposed that the computer system installed in the office of Special Cell/NR is password protected and is under his control and supervision and that no unauthorized person can access the system or make any deletion, alteration or addition in the intercepted calls and further that during the relevant period of interception, the computer system was working properly without any breakdown and that he had downloaded 26 intercepted calls in the CD Ex.P8. PW14 SI Rakesh Kumar has inter alia deposed that the CD Ex.P8 was handed over to him by Inspector Attar Singh on 06.09.2008 and that he had selected the relevant calls therefrom FIR No. 55/08 Page 24 of 60 State Vs. Abdul Latif and Ors.
and had copied the same in a separate CD which has been exhibited as Ex.P15. He has also inter alia deposed that the copied calls in Ex.P15 are true and authentic and that no alteration, deletion, improvement were made in the said calls and that during the period of recording, no fault had occurred in the computer system and neither was the said file corrupted in any manner. The said depositions make it clear that the mobiles being used by the accused persons were under surveillance of the Special Cell before the apprehension of the accused persons and the telephonic conversations that took place using the said mobiles were automatically saved, at the same time that the calls were made, in the server of the Special Cell through the server of the mobile service provider company and the said telephonic conversations were copied from the computer system on CDs by Inspector Attar Singh and SI Rakesh Kumar which have been duly exhibited during trial. The aforementioned witnesses have clearly deposed that the computer system installed in the office of Special Cell, NR Rohini is protected by a password and that during the relevant period there was no problem in the operation of the computer system nor was there a break down and that the CDs in question contained the calls that were initially stored in the server of the computer system installed in the office of Special Cell, NR, Rohini. In a judgment pronounced in the case titled as State Vs. Mohd. Afzal FIR No. 55/08 Page 25 of 60 State Vs. Abdul Latif and Ors.
and Ors. 107 (2003) DLT 491, the Hon'ble Delhi High Court in paras 271293 of the said judgment, after referring to the provisions of Section 65B of the Indian Evidence Act and to various authorities of English law has held that in the context of section 65B of the Indian Evidence Act, the only condition that should be insisted to be complied with, before admitting computer generated evidence, is that throughout the material part of the period to which the computer operations related, the computer was operating properly. The Hon'ble Court has observed specifically in para 293 of its judgment that this is the only practical way to deal with computer generated evidence, unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of system or operating failure or interpolation. It has been further made clear by the Hon'ble Court that such challenge has to be established by the challenger and that generic and theoretical doubts by way of smokescreen have to be ignored.
34.Now in the present case there is no challenge made at all on behalf of the defence to the CDs in question on the ground of misuse of the computer system installed in the office of Special Cell or failure in its operation or on the ground of interpolation and as such this court is therefore of the considered opinion that the intercepted mobile conversations contained in the CDs produced during trial are admissible in evidence. FIR No. 55/08 Page 26 of 60 State Vs. Abdul Latif and Ors.
35.As regards the contention that the mobile phones were not subscribed in the name of the accused persons and hence it should be inferred that it was not the accused persons who had made the conversations in question, the same also has to be negated for in the considered opinion of this court once the mobile phones in question were recovered from the accused persons at the time of their apprehension, it becomes irrelevant and immaterial that the said phones were not subscribed in their own names. Admittedly as per the contemporary recovery memos prepared at the spot at the time of the apprehension of the accused persons, the mobiles bearing number 9958021050 and 9971651473 were recovered from the accused Abdul Latif and the mobile bearing no. 9213592118 was recovered from the possession of accused Mohd. Akhtar. The recovery memos prepared at the spot clearly mentions the recovery of the said mobiles. In Mohd. Afsal's case (Supra) also a similar contention was taken before the Hon'ble Delhi High Court but the same was negated by holding that since the recovery memos prepared at the spot clearly mention the recovery of the said mobiles, there was no reason to doubt the recovery of the mobile phones. Now though in the present case during final arguments the recovery memos have sought to been challenged on behalf of Abdul Latif by contending that the said recovery memos do not bear his signature and that the investigating officials have forged his FIR No. 55/08 Page 27 of 60 State Vs. Abdul Latif and Ors.
signatures on the same, it is to be noted that both PW13 Inspector Attar Singh and PW14 SI Rakesh Kumar have categorically deposed about the preparation of the said recovery memos and not a single suggestion was put to them in their crossexamination conducted on behalf of accused Abdul Latif, that his signatures on the said recovery memo had been forged by the investigating officials themselves. In the considered opinion of this court when the defence itself during the recording of evidence did not chose to take a stand that the signatures of the accused Abdul Latif had been forged on the said recovery memos, it cannot now at the stage of final arguments allege that the signatures of accused Abdul Latif appear to be different on different documents and therefore an inference should be drawn that the same had been forged by the investigating officials. In a judgment delivered by Hon'ble Delhi High Court in a case titled as Bilal Ahmed Vs. State 2011(1) JCC (Narcotics) 27 it has been observed that it is a settled legal principle that if the testimony of a witness has to be discredited, the relevant fact should be put to him so that he gets the chance to offer an explanation. It has been affirmed by the Hon'ble Delhi High Court that it is absolutely essential to the proper conduct of a case where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in crossexamination showing that imputation FIR No. 55/08 Page 28 of 60 State Vs. Abdul Latif and Ors.
is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, to argue that he is a witness unworthy of credit. Further it is also to be noted that this accused even in his statement u/s 313 Cr.PC did not take a stand that his signatures had been forged on any of the documents shown to him during the recording of his statement. Infact on the other hand he took a stand that the police officials had tortured him to sign many documents.
36.In view of the discussion hereinabove this Court does not find any reasons to doubt the recovery of the mobile phones from the accused persons and thus the mere fact that the said mobiles were not found subscribed in the names of the accused persons themselves becomes irrelevant. It is also to be borne in mind that the prosecution has also been able to prove beyond reasonable doubt that the voices in the intercepted mobile conversations belongs to the accused persons only. As per record, during the remand proceedings, an application had been filed by the investigating officer seeking permission of the court to record the voice samples of both the accused so that the same could be sent for comparison with the voices in the intercepted mobile conversations and the Ld. Predecessor of this court had allowed the said application. Now as per the deposition of PW14 SI Rakesh Kumar, pursuant to the said FIR No. 55/08 Page 29 of 60 State Vs. Abdul Latif and Ors.
permission granted by the court, he had requested a public witness Pradeep Kumar to join the proceedings for the recording of the said voice samples. The said public person has also been examined by the prosecution as PW2. Both PW14 and PW2 in their depositions before the court have categorically deposed that the voice sample of accused Mohd. Akhtar was recorded in an audio cassette and after the said recording the said cassette was sealed and further that accused Abdul Latif had refused to give his voice sample despite the fact that he was explained that his refusal can lead to an adverse inference against him. Further as per the deposition of PW14 the voice sample of accused Mohd. Akhtar and the intercepted mobile conversations were sent to CFSL for comparison and PW18 Deepak Kumar Tanwar, Senior Scientific Officer, FSL Rohini has inter alia deposed that he had conducted the analysis of the voice samples of the accused Mohd. Akhtar and the questioned intercepted mobile conversations and that as per his analysis in this case, the voice of the accused Mohd. Akhtar in the questioned intercepted mobile conversations was found tallying with the specimen voices of the said accused. The report prepared by this expert Ex.PW18/A clearly mentions that by using auditory and voice spectographic techniques he has been able to conclude that the questioned voice of Mohd. Akhtar completely tallies with his specimen voice in respect of its linguistic, phonetics and FIR No. 55/08 Page 30 of 60 State Vs. Abdul Latif and Ors.
other general spectographic parameters. It is relevant to point out here that the said witness was not at all crossexamined on behalf of accused Mohd. Akhtar and though he was crossexamined on behalf of Abdul Latif, in the said crossexamination this witness has been able to answer all the questions put to him by the Ld. Defence counsel Sh. A.K. Sahoo. In the considered opinion of this court, the detailed report tendered by this expert and his deposition leaves no doubt in the mind of this court that the said report is not tutored and infact has been given by an expert whose credibility cannot be doubted on the bald allegation of the Ld. Counsel Sh. Sahoo that the said witness has given an incorrect report at the behest of the IO.
37.It has however been then contended on behalf of accused Mohd. Akhtar that his voice sample was never recorded by the investigating officials and they had on their own fabricated his voice sample and sent it to FSL and according to Ld. Defence counsel Sh. Amit Yadav, PW2 is a stock witness of the police and that he has given a false deposition at the behest of PW14. It has been pointed out by the Ld. Defence counsel that though according to this witness his statement was never recorded by the police officials, PW14 SI Rakesh Kumar has stated that the said statement was infact recorded. In the considered opinion of this court such kind of a minor discrepancy is hardly a ground to discard the testimony of a public FIR No. 55/08 Page 31 of 60 State Vs. Abdul Latif and Ors.
witness. No material whatsoever has been brought on record to suggest that PW2 is a stock witness of the investigating agency. It has been then contended by the Ld. Defence counsel that though assertedly the voice sample of accused Mohd. Akhtar was recorded on 06.09.2008, it was sent to the FSL only in the month of October, 2008 and that during the intervening period SI Rakesh Kumar had ample opportunity to tamper with the said cassette more so when he had not handed over the seal after use to an independent witness. Suffice is to state that mere delay in sending the aforementioned sample cannot alone lead to an inference of tampering, when the seals on them were found intact by the FSL expert. Further if the assertion of the accused that his voice sample was never recorded was true then nothing stopped him from filing an application before this court to get his voice sample recorded and analysed again. In the considered opinion of this court the said contention being taken at the fag end of the trial shows that it is a mere afterthought.
38.As regards accused Abdul Latif, the fact that this accused refused to give his voice samples does give rise to an adverse inference against him namely that he deliberately did not give his voice samples for else the same would have matched with the voice in the intercepted mobile conversations. Though it has been argued vehemently on his behalf that this accused had not refused to give his voice samples at all and that FIR No. 55/08 Page 32 of 60 State Vs. Abdul Latif and Ors.
infact due to his unfamiliarity with Hindi language, he was unable to give his voice samples as per the dictation of the investigating officer, it is to be taken note of that in the crossexamination of PW2, a public witness who has deposed that this accused had infact refused to give his voice samples, the only suggestions put to him are to the effect that the accused Abdul Latif was never informed that his refusal for giving his voice will go against him. In other words the deposition of PW2 to the effect that this accused had refused to give his voice samples was not at all challenged during trial. Further though this accused in his examination u/s 313 Cr.PC has stated before this court that at the time of recording his voice sample, the investigating officials had written some words in English which were of Hindi vocabulary and that since he was unable to speak Hindi at all, the investigating officials themselves chose not to record his voice samples, this court does not find the said explanation acceptable for admittedly this accused as per his own admission has been living in India for the last 810 years and it is highly improbable that in this entire period he would not have picked up even a few words of Hindi. Further Ld. APP has also rightly pointed out that it is completely unacceptable that this accused despite being a Muslim would have been unable to speak the words 'salam walaikum', a phrase occurring frequently in the intercepted mobile conversations and therefore which as FIR No. 55/08 Page 33 of 60 State Vs. Abdul Latif and Ors.
per the usual practice, the investigating official would have wanted this accused to speak at the time of recording his voice sample.
39.In view of the discussion hereinabove, this court finds no reason to doubt the recovery of the mobile phones from the accused persons or the fact that the intercepted mobile conversations were made by the accused persons only.
40.At this stage it will also be relevant to consider the charges framed against the accused Abdul Latif u/s 420/471 IPC for having obtained the subscription of the two mobiles recovered from him on the basis of fake documents. The customer application forms of the two mobile numbers proved on record show that the said numbers were subscribed in the name of Egbonwon Akinjide r/o WZ124/5, Gali no.12, Krishnapuri, Tilak Nagar and Latif Ayudele r/o E/P 14, Chandragupta Marg, Chanakyapuri. As per the deposition of the investigating officials PW14 ASI Rakesh Kumar both the aforementioned addresses were found to be fake and fictitious. Though it has been rightly contended by Ld. Defence counsel Sh. A.K. Sahoo that since no employee of Bharti Airtel has stepped into the witness box to state that it was the accused Abdul Latif who had cheated them by procuring the said two numbers on the basis of fake and fictitious documents, the accused cannot be held guilty for the offence punishable u/s 420 IPC, in the considered opinion of this court, FIR No. 55/08 Page 34 of 60 State Vs. Abdul Latif and Ors.
the fact that the accused was found in possession of the said two mobiles is sufficient to prove the charge of 471 IPC against him. This is so because apart from the fact that the recovery memos show the recovery of the mobile phones in question namely 9958021050 and 9971651473 from accused Abdul Latif, the customer application forms of the said two phones proved on record show that the photograph of accused Abdul Latif is affixed on the customer application form filled up at the time of obtaining the subscription of mobile number 9971651473 and the call detail records of the said two mobiles further reveal that both the said mobiles were used by the same person. The CDRs of the two mobiles provided on record show that they were being run on instruments bearing IMEI numbers (which is unique for each mobile set) 356956010745930 and 352050020293800 respectively and further in June, 2008 the SIM of the mobile number 9971651473 was used on the IMEI of the mobile number 9958021050. In other words the SIM cards of the two mobile numbers were used interchangeably on the two mobile instruments by the accused Abdul Latif. The circumstance that both the mobile numbers in question were recovered from accused Abdul Latif, the circumstance that his photograph is found affixed on one of the customer application forms and the circumstance that the CDRs of the two mobile phones show that both the mobiles were used by one person only, all taken cumulatively FIR No. 55/08 Page 35 of 60 State Vs. Abdul Latif and Ors.
prove that it was accused Abdul Latif only who would have obtained the subscription of the said two mobiles by using fake documents. The hypothesis being forwarded on behalf of accused Abdul Latif namely that somebody else used his photograph to obtain the subscription of the mobile number 9971651473 and the investigating officials later on planted upon him the mobile bearing this number and the mobile bearing number 9958021050 cannot be accepted at all in view of the evidence discussed hereinabove which completely negates the possibility of planting of the mobiles on the accused Latif by the investigating officials. It will also be relevant herein to mention that infact the accused in his statement u/s 313 Cr.PC has even denied that the customer application form of 9971651473 bears his photograph, a denial which is belied by a mere perusal of the said photograph which clearly shows that it is of the accused only. The said false answer provides an additional link in the chain of circumstances that the prosecution has proved to show that it was the accused only who would have obtained the subscription of the two mobile numbers in question by using fake documents.
41.In view of the discussion hereinabove this Court is of the considered opinion that the accused Abdul Latif was using the mobile phones bearing numbers 9958021050 and 9971651473 and that the accused Mohd. Akhtar was using the mobile bearing number 9213592118 to FIR No. 55/08 Page 36 of 60 State Vs. Abdul Latif and Ors.
make conversations with each other. It will be now necessary herein to reproduce relevant portions of the transcripts of some of the intercepted mobile conversations that took place between the accused Abdul Latif and Mohd. Akhtar (the conversations were heard in court during trial and the transcripts thereof were filed on record by the investigating agency and were verified by this court and the defence counsels to be containing the correct account of the conversations heard):
(Call No. 244695 dated 09.07.2008, time 20.51.50 hours to 20.54.00 hours, No. 9958021050 to 9213592118) Abdul: Hello, ya hello Raja: Hello friend Abdul: Ya dost Raja: Yaar I am tension yaar yaar I am tension Abdul: Malum Yaar ek minute yaar tum kaise ho Raja: Teri wajah se mai tension Abdul: Malum yaar, malum yaar, tum malum dusra wala sara paisa khatm ho gya, pakka sara paisa khatm ho gaya yaar ye ye us malum yaar poora poora mode Monday poora paisa give poora paisa give Raja: Tomorrow tomorrow Abdul: Yaar tomorrow poora paisa give Raja: Sham ko sham ko Abdul: Sham ko sham ko sham ko Raja: Please yaar please yaar Abdul: Arey yaar malum malum yaar, your wife patient malum yaar Raja: Yaar eleven date, yaar white 2 Kg bola. Yaar maine bola FIR No. 55/08 Page 37 of 60 State Vs. Abdul Latif and Ors.
use dost, no white no paisa tension yaar bahut tension.
Abdul: Please yaar, please yaar mera dost please
Raja: White white double kal
Abdul: Ok
Raja: Kal
Abdul: Ok ok ok, kal mera wife ayega poora paisa gift, monday
poora paisa yaar
Raja: Monday.
(Call No. 262676, dated 31.07.2008, time 14.10.06 to 10.10.57, No. 9958021050 to 9213592118) Abdul: Hello dost Raja: Hello friend how are you Abdul: Thik hai dost. Aap thik hai Raja: I am fine, hello Abdul: Hello dost Raja: Ya ya Abdul: Arey yaar white wala kapda abhi Raja: Ya hello Abdul: Hello Raja: Haan night mulakat Abdul: Night mulakat Raja: Ya ya Abdul: Thik hai thik hai Raja: 88 Abdul: Ok ok Raja: Ok friend Abdul: Ok FIR No. 55/08 Page 38 of 60 State Vs. Abdul Latif and Ors.
(Call No. 263174, Dated 31.07.2008, time 19.38.40 to 19.39.59, No. 9958021050 to 9213592118) Raja: Hello dost Abdul: Hello dost Raja: Hello friend how are you Abdul: Ab thik hai yaar Raja: Haan Abdul: Abhi tum kaha par hai yaar Raja: I am Pitam Pura Abdul: Kis time tak ayega Raja: Haan Hello Abdul: Hello dost Raja: Morning Abdul: Subah Raja: Ya ya Abdul: Ok Raja: Ok nahi fine Abdul: Ya ya Raja: Morning achha hai na Abdul: Ya morning achha hai yaar abhi white kapda Raja: Hello morning meeting Abdul: Pehle meeting karo Raja: Hello please, 25 please, out of range yaar Abdul: 10 baje Raja: aaaa friend Abdul: 10 baje 10 baje Raja: Ok ok morning meeting Abdul: Ok Raja: Eleven.FIR No. 55/08 Page 39 of 60
State Vs. Abdul Latif and Ors.
(Call No. 263689, Dated 01.08.2008, Time 12.33.31 to 12.34.51, No. 9958021050 to 9213592118) Raja: Hello good afternoon Abdul: Good afternoon, how are you Raja: How are you, fine.
Abdul: Dono
Raja: Hello, hello friend
Abdul: Ya dost bolo
Raja: Ya ya hello
Abdul: Hello dost
Raja: Haan namaz namaz namaz
Abdul: 5 minute ok namaz padhna
Raja: Ya ya jumma jumma
Abdul: Jumma do baje yaar
Raja: Ya ya, no no one eleven
Abdul: Ok ok ok abhi white white kapda ayega
Raja: Arey no no meeting yaar, please yaar
Abdul: Ok ok sham ko mulakat yaar
Raja: Sham ko eight baje
Abdul: Ya ya
Raja: Ok hello Vadodara, UP man final yaar, please yaar final
Monday final yaar.
(Call No. 271584, dated 07.08.2008, time 11.38.55 to 11.39.47, No. 9971651473 to 9213592118 Abdul: Salaam walaikum Raja: Walaikum salaam thik hai Abdul: Thik hai FIR No. 55/08 Page 40 of 60 State Vs. Abdul Latif and Ors.
Raja: Aur fine Abdul: Fine dost Raja: O mere yaar 12 tareekh Abdul: Ok ok dost Raja: 12 kapda. Abdul: Ok Raja: Hello friend ok Abdul: Ok dost thik hai thank you very much Raja: 12 tareekh kapda 1 Kg 6 tareekh payment Abdul: Ok aj dost ok
(Call No. 279735, Dated 12.08.2008, time 12.33.50 to 12.35.23 hours, No. 9971651473 to 9213592118) Abdul: Hello dost kya haal hai Raja: Hello dost walaikum salaam Abdul: Walaikum salaam aur thik ho Raja: Friend fine Abdul: Arey dost, please yaar, arrangement karo yaar Raja: Yaar no arrangement yaar 25 yaar, please yaar give yaar Abdul: Arey yaar pakka kasam se, wife abhi Delhi nahi aai, arrangement karo yaar Raja: Sham ko sham ko Abdul: Ok sham ko meeting karo yaar Raja: Ok fine.
(Call No. 295946, dated 23.08.2008, time 19.06.58 to 19.09.35, No. 9971651473 to 9213592118) Abdul: Hello Raja: Salaam walaikum friend FIR No. 55/08 Page 41 of 60 State Vs. Abdul Latif and Ors.
Abdul: Salaam walaikum thik hai
Raja: Thik hai aap thik hai
Abdul: Thik hai
Raja: Aur ji friend
Abdul: Abhi kuchh nahi
Raja: Ya
Abdul: Abhi tum kaha par ho
Raja: I am house
Abdul: Your house
Raja: Mere house no no ya my house
Abdul: Tumhara house yaar kuchh nahi ayega, ayega
Raja: Ya ya
Abdul: Arey yaar kuchh nahi yaar
Raja: Arey yaar please yaar, friend yaar, no yaar
Abdul: Arey yaar tum ayega
Raja: Haan
Abdul: Kuchh nahi hai please isko kuchh karo kapda abhi nahi
dega
Raja: My wife tension yaar bimar yaar
Abdul: Aaj ayega discuss karo yaar ok
Raja: Yaar tension, yaar ghar me tension, my wife yaar
Abdul: Malum malum
Raja: 25 yaar please yaar
Abdul: Malum malum
Raja: Only money yaar please yaar
Abdul: Arey yaar malum ok tum mera my tum mera dost kasam se
abhi abhi ayega abhi abhi ayega me house nahi hai 1015 minute out but abhi paisa nahi hai Raja: Ok FIR No. 55/08 Page 42 of 60 State Vs. Abdul Latif and Ors.
42.The aforementioned conversations, particularly the lines shown in bold make it amply clear that in the months of July and August, 2008 Mohd. Akhtar and accused Abdul Latif were dealing in some clandestine business and were discussing about the supply of some material by accused Akhtar to accused Latif and the payments to be made for the same by Latif to Akhtar. The said scientific evidence in the form of intercepted mobile conversation proved on record by the prosecution is of such impeachable quality that it completely belies the defence taken by the accused persons namely that they were not known to each other and that they have been falsely implicated by the investigating officials. Though no doubt it has been rightly pointed out by the Ld. Defence Counsels that the intercepted conversations do not mention the words "drugs", it is to be taken note of that it is but natural that persons dealing in illegal activities would not use the word "drugs" but would resort to using code words and the accused persons in the present case in most of their conversations, have also used words like "white kapda" to refer to the articles that they were dealing with. It is trite to state that conspiracy is a clandestine activity and that persons generally do not form illegal covenants openly. In the considered opinion of this court once the prosecution has proved the aforementioned mobile conversations having taken place between the accused persons, it was for the accused persons FIR No. 55/08 Page 43 of 60 State Vs. Abdul Latif and Ors.
to have informed the court as to what were they talking about. On their failure to do so it is being rightly contended on behalf of the prosecution that the tenor of the conversations proved on record is such that an inference has to be drawn that the same completely corroborates the version put forward by the prosecution namely that the accused persons had conspired to deal in drugs and it is in pursuance of the said conspiracy that the accused Mohd. Akhtar had come on 1/9/2008 at about 8:20 PM near the CNG pump, F Block, Gandhi Vihar Road to supply drugs to accused Abdul Latif.
43.Now let us examine whether the prosecution has been able to prove beyond reasonable doubt, the version of the apprehension of accused persons on 1/9/2008 and the recovery of the contraband from them. As discussed in the preceding paragraphs, the prosecution has produced some of the members of the raiding team and the main investigating officials in the witness box to prove the aforesaid version and all the said witnesses have described in detail about the recovery of contraband from the accused persons on 1/9/2008. Now the version by the said witnesses is being questioned by the defence by firstly contending that the entire search and recovery proceedings stand vitiated due to the non compliance of the Section 42 of the NDPS Act, secondly by pointing out certain discrepancies in the depositions of the members of the raiding team, FIR No. 55/08 Page 44 of 60 State Vs. Abdul Latif and Ors.
particularly in the deposition of PW15 SI Upender Solanki and thirdly on account of no public independent witnesses having been joined in the investigation. Ld. Counsel Sh. Amit Yadav has also additionally contended that the deposition of DW1, the wife of accused, completely belies the version put forward by the prosecution and it is his submission that this court must not ignore her deposition merely on the ground that she is the wife of the accused.
44.As regards the contention of the Ld. Defence Counsel Sh. Yadav that there has been non compliance of Section 42 of the NDPS Act in as much as the secret information was not reduced separately on a piece of paper and was merely reduced into a DD, this Court completely agrees with the submissions made by the Ld. APP for State that it is not mandatory that the secret information should reduced into writing separately and not merely in a daily diary. No doubt in Peerswamy's case (supra the judgment relied upon by the Ld. Defence Counsel) the Hon'ble Delhi High Court has observed that the secret information should be reduced in a separate form other than a DD, but subsequently the Hon'ble Supreme Court in a case reported and titled as Karnail Singh Vs. State of Haryana, 2009 (4) JCC (Narcotics) 170 has made it clear that it is not strict but substantial compliance of Section 42 NDPS Act that is required. FIR No. 55/08 Page 45 of 60 State Vs. Abdul Latif and Ors.
Further the Hon'ble Delhi High Court in a case titled and reported as Mohd. Anwar & Anu Vs. State 2011 (1) JCC (Narcotics) 67, after taking note of the observations of the Hon'ble Supreme Court in Karnail Singh's case has held that reduction of secret information into writing in the form of DD and its forwarding to the senior officials is substantial compliance of Section 42 NDPS Act.
45.As regards the various contradictions /lacunae in the case put forward by the prosecution witnesses, this court has carefully considered each of the said contradictions referred to by Ld. Defence Counsel Sh. Amit Yadav in the written submissions filed by him on record and in the considered opinion of this Court, none of them can be stated to be of such major significance that goes to the root of the matter. It is to be borne in mind that the incident in question has taken place almost six years before the conclusion of trial and therefore it is not surprising that some of the police officials /prosecution witnesses could not depose correctly about some details of the raid. Though it has been rightly pointed out by Ld. Defence Counsel Sh. Amit Yadav, that the deposition of PW15 SI Upender Solanki is not consistent with the depositions of the other prosecution witnesses with respect to the markings given to the pullandas assertedly prepared at the spot and the time of recording of the asserted disclosure statement of Mohd. Akhtar, in the considered opinion of this FIR No. 55/08 Page 46 of 60 State Vs. Abdul Latif and Ors.
court, the said incorrect depositions made by this witness cannot be given undue significance when the contemporary documents clearly mention the markings given to the pullandas and it cannot be expected that all the prosecution witnesses must have photographic memory to remember all such minute details during the investigation. The contention of the Ld. Defence Counsel that the incorrect statements given by PW15 are sufficient to doubt the entire case put forward by the prosecution, cannot be accepted and the entire case put forward by the prosecution cannot be doubted merely on the account of some errors committed by PW15. The Hon'ble Supreme Court in its judgment pronounced in a case titled as Diler Singh vs State of Haryana reported in 2009 (4) JCC (Narcotics) 185, has held that when the recovery of contraband is fully established by the evidence on record, some errors committed by the witnesses in their depositions can be attributed to failure of human memory and that the said errors are inconsequential. In Vijay Kumar Chaddha Vs. CBI 2011(3) JCC 1660 the Hon'ble Delhi High Court has observed that a witness is not expected to have a photographic memory to remember all the details of any investigation from beginning to end and that therefore minor contradictions in the statements of witnesses should not be given undue weightage.
FIR No. 55/08 Page 47 of 60
State Vs. Abdul Latif and Ors.
46.In the considered opinion of this court, the overall testimony of the investigating officials proves the case of the prosecution and this court is satisfied that the investigation in the present case has been done in a fair and proper manner and that the prosecution has been able to prove its case beyond reasonable doubt. No doubt as discussed hereinabove there are certain discrepancies and blemishes in the depositions of PW15, however it is well settled law that the prosecution is not required to prove its case free from all blemishes, whatsoever, whether relevant or irrelevant. The Hon'ble Supreme Court in Iqbal Moosa Patel's case (supra), while dealing with the burden of proof that the prosecution is expected to discharge for proving the guilt of an accused has made the following observations:
"It is true that the prosecution is required to establish its care beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller Vs. Minister of Pension (1947) 2 ALL ER 272:
"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law FIR No. 55/08 Page 48 of 60 State Vs. Abdul Latif and Ors.
would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is to strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence 'of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt....
It is true that under our existence jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land."
47.Keeping in mind the aforementioned dicta, this court on a careful examination of the entire evidence finds no reason whatsoever to doubt the deposition of the various prosecution witnesses who have deposed in detail about the search and seizure proceedings that were conducted at the spot in question and during which contraband was recovered from the accused persons. As regards the absence of any independent witness in the proceedings, no doubt the investigating agency could not join any public witnesses in the investigation but recently the Hon'ble Supreme Court in two of its judgments pronounced in NDPS cases, titled and reported as Ram Swarooop Vs. State 2013 Crl. L.J. 2997 and Kashmiri Lal Vs. State of Haryana 2013 Crl. L.J. 3036, has observed FIR No. 55/08 Page 49 of 60 State Vs. Abdul Latif and Ors.
that ordinarily the public at large show their disinclination to come forward to become witnesses and that even in the absence of independent witnesses, a court can, on the sole testimony of the police officials believe the prosecution's case to be true, more so if the court has no reasons to suspect the truthfulness of the records produced by the police officials. In the present case, as discussed hereinabove, this court has no reasons to suspect the truthfulness of the records produced by the police officials, particularly the intercepted mobile conversations and therefore this court is of the considered opinion, that even in the absence of public witnesses, the prosecution has been able to prove that heroin was recovered from the accused persons Abdul Latif and Mohd. Akhtar on 1/9/2008. Further no doubt it has been rightly contended by Ld. Defence counsel Sh. Yadav that a defence witness is entitled to equal treatment and equal respect as given to the prosecution witness, however in the present case this court is unable to rely on the deposition of DW1 Ms. Tarannum, the wife of accused Mohd. Akhtar for it appears that she has deposed falsely only to save her husband. This is so because a document on record namely Mark DX1 filed by the accused Mohd. Akhtar himself belies the deposition of DW1. The said document had been referred to by accused Mohd. Akhtar at the stage when his statement was being recorded u/s 313 CrPC. In the said statement this accused inter alia stated FIR No. 55/08 Page 50 of 60 State Vs. Abdul Latif and Ors.
before this Court that after he was falsely implicated in this case, he had written and placed a letter, mark DX1 before the Court explaining the circumstances in which he was apprehended by the police officials. The said document on record shows that it was filed by the accused before one of the Ld. Predecessors of this Court on 20/9/2008 i.e. during remand proceedings. Very interestingly in the said letter this accused has himself written that he was apprehended by the investigating officials in the present case on the morning of 30/8/2008 (and not 1/9/2008 as asserted by him and his wife during DE) while he was standing on a bus stand to go for his work at a shoe factory (and not to any hospital as asserted by him and his wife during DE). The aforementioned completely contradictory stands taken by accused during trial does show that the defence put forward by him is an after thought and that therefore the deposition of his wife cannot be believed.
48.Now despite the prosecution having proved the recovery of contraband from the accused persons, the submission of the Ld Defence Counsels is that the accused persons are still entitled to be granted the benefit of doubt for the evidence proved on record by the prosecution does not rule out the possibility of tampering with the case property and the samples drawn therefrom. Ld. counsel Sh. Amit Yadav has contended that since there had been a delay in sending of samples to the FSL and that the said FIR No. 55/08 Page 51 of 60 State Vs. Abdul Latif and Ors.
delay has remained unexplained, the tampering of the samples cannot be ruled out. He has further pointed out that since during trial it was observed that the colour of the seized contraband as mentioned in the seizure memo was brown while the colour ascribed by the Chemical Examiner PW11 Dr. Madhulika Sharma to the samples sent to her for analysis was yellowish brown, the accused had filed applications for retesting of the case property which was allowed by this Court and his submissions is that the said difference in colour is also sufficient to make an inference that the case property and the samples were tampered with by the Investigating Officials.
49.In the considered opinion of this court none of the aforementioned contention of the Ld. Counsel Sh. Yadav have any merit. The testimony of PW11 Dr. Madhulika Sharma makes it clear that at the time of the receipt of the samples in the FSL, the seals thereon were tallied with the FSL form and were found intact. In view thereof, it cannot be stated that a mere delay of a few days in sending the samples to FSL has caused any prejudice to the accused persons, more so when there is nothing on record to suggest that the samples were tampered with. In a case reported as Jarnail Singh Vs. State of Punjab, 2011 CRI, L.J. 1738, the Hon'ble Supreme Court has held that even if there has been delay in sending samples of seized contrabands, the same is not fatal to the case of the FIR No. 55/08 Page 52 of 60 State Vs. Abdul Latif and Ors.
prosecution if there is clear evidence of chemical examiner that seals were intact when samples were received by him.
50.As regards the asserted difference in the colour of the case property and the samples drawn therefrom, though no doubt on an application filed on behalf of the accused persons this Court had allowed the retesting of the case property, the deposition of CW1 Dr. Lingraj Sahoo, the expert who had analysed the fresh samples drawn out from the case property and who was examined by this Court as a Court witness explains the reasons for the difference in the colour of the case property and the samples. This witness on a specific query by this Court has deposed that the difference in the colour of the case property and the samples is very minor and may have occurred due to some chemical changes. The said categorical deposition of the expert has not at all been controverted by the defence and therefore in the considered opinion of this Court the accused persons cannot be granted any benefit of doubt due to the asserted variation in the colour of the case property and the samples.
51.Ld. Defence Counsels have then pointed out that though as per the first FSL report proved on record by PW11 Dr. Madhulika Sharma, the samples sent to FSL had been found to contain diacetylmorphine to the extent of 58%, the fresh sample drawn out from the case property and sent for analysis have been found to contain diacetylmorphine only to the FIR No. 55/08 Page 53 of 60 State Vs. Abdul Latif and Ors.
extent of 2.1% and it is their contention that such a huge variation in the percentage of diacetylmorphine would not have taken place had the two samples been taken out from the same substance and that therefore the possibility that the case property was tampered with cannot be ruled out. With respect to the said contention it is to be taken note of that CW1 Dr. Lingraj Sahoo, the expert who had examined the second sample sent during court proceedings, on being asked to explain the variation in the percentage of diacetylmorphine between the sample examined by him and the sample examined by PW11 Dr. Madhulika Sharma, has stated in his deposition that the reduction in the percentage of diacetylmorphine in the present case could have occurred due to hydrolysis and natural decomposition of diacetylmorphine over a passage of time. No doubt it has been rightly contended by the Ld. Defence counsels that the huge reduction in the percentage of diacetylmorphine in the present case could have occurred only due to hydrolysis over a passage of time cannot be completely accepted since no research has been conducted in India to show that the percentage of diacetylmorphine in a sample of illicit heroin will reduce to such a huge extent as has been found out in the present case and CW1 Dr. Lingraj Sahoo has admitted in his crossexamination that there is no fixed data available to show over how much time period the percentage of diacetylmorphine will get reduced from 58% to 2%. FIR No. 55/08 Page 54 of 60 State Vs. Abdul Latif and Ors.
But at the same time it also cannot be said that the only inference that should be drawn in view of the variation in the percentage of diacetylmorphine in the two tests is that the case property or its samples were tampered with. The other inference that could also be drawn, is that apart from hydrolysis which could have led to some reduction in diacetylmorphine, the variation in percentage of diacetylmorphine could have also occurred due to the failure of the investigating officials in drawing out a representative sample at the time of the search and seizure proceedings. Apparently if a representative sample is not drawn from a seized substance it can lead to the sample showing a high percentage of diacetylmorphine than the actual amount of diacetylmorphine in the entire seized substance. Now in the present case, it is a matter of record that when a fresh sample was drawn out from the case property during court proceedings, the entire powder was properly mixed and homogenized and a sample of 5 gm taken out after following the technique prescribed by the UNODC manual and as agreed to by the Ld. Defence counsels and the Ld. APP. On the other hand the deposition of PW13 Inspector Attar Singh, the seizing officer shows that he did not follow the proper technique of drawing out samples (a contention even taken by Ld. Defence counsels in their written submissions) and therefore in the considered opinion of this court, the possibility that it is this FIR No. 55/08 Page 55 of 60 State Vs. Abdul Latif and Ors.
incorrect procedure which led to a diacetylmorphine concentrated unrepresentative sample being sent to the FSL for analysis cannot be ruled out at all, more so when the evidence on record does not reflect any circumstances that the samples of the case property were tampered with. The only effect of the said inference is that the percentage of diacetylmorphine found in the sample sent by the IO cannot be assumed to be indicative of the percentage of diacetylmorphine in the entire seized substance and therefore in such view of the matter, the accused will have to be given the benefit of the second/subsequent report as per which applying the ratio of the judgments pronounced in the cases reported and titled as Ansar Ahmed Vs. State 2005(4) RCR (CRL) 393, NCT of Delhi V. Ashif Khan @ Kalu [2009 (2) RCR (Crl.) 267]; E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, 2008 (2) RCR (Criminal) 597 and Ouseph V. State of Kerala [2004 (4) SCC 446], the actual quantity of contraband recovered in the present case comes to less than the commercial quantity but more than the small quantity (prior to the issuance of notification dated 18/11/2009 by the Central Government vide which the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug is to be considered for determining the quantity of the contraband recovered in a FIR No. 55/08 Page 56 of 60 State Vs. Abdul Latif and Ors.
particular case, as per the aforementioned judgments pronounced by the Hon'ble Supreme Court and Delhi High Court, it is the pure drug content in the recovered substance that is to be considered for determining the quantity of contraband recovered).
52.In view of the discussion hereinabove the quantity of heroin that can be said to have been recovered from both the accused persons on 1/9/2008 is to be held as intermediate and the offence proved to have been committed by both the accused persons with respect to the said recovery is to be held punishable u/s 21 (b) NDPS Act and not u/s 21 (c) NDPS Act.
53.Coming now to the second recovery of contraband assertedly made from the house of the accused Abdul Latif, this Court is constrained to observe that the evidence on record makes it clear that there has been a total non compliance of section 42 of the NDPS Act with respect to the search and seizure proceedings allegedly conducted by the investigating agency at the house of accused Abdul Latif. As per the case put forward by the prosecution itself, the raiding team had proceeded to the residence of accused Abdul Latif on 1/9/2008 pursuant to the disclosure made by the accused Abdul Latif himself that he had concealed heroin in his residential premises at F9394 Gandhi Vihar Delhi and that he could get the said contraband recovered. Now assuming that this disclosure was infact given by the accused Abdul Latif, there is no explanation FIR No. 55/08 Page 57 of 60 State Vs. Abdul Latif and Ors.
forthcoming from the prosecution as to why in compliance of the provisions of Section 42 of the NDPS Act this asserted disclosure was after being reduced into writing not put up before a senior official so as to obtain a search authorization warrant for the premises of accused Abdul Latif. It is not the submission of Ld. APP that the disclosure assertedly given by accused Abdul Latif was of a nature to which the provisions of Section 42 NDPS Act would not apply. In a judgment pronounced in a case titled and reported as Shyam Babu Vishwakarma & Anr. Vs. State of UP 2012 (2) JCC (Narcotics) 43, the Hon'ble Allahabad High Court has made it very clear that provisions of Section 42 NDPS Act would squarely apply to an information given by an accused during investigation. It is also not the case of the prosecution that there was any paucity of time due to which the disclosure assertedly given by the accused Abdul Latif could not have been put up before a senior official and a search authorization obtained for the search of the house of accused Abdul Latif. Admittedly no contemporary document prepared at the spot after the giving of the said disclosure by Abdul Latif, records any belief of any Investigating official that there was any apprehension that there was a possibility of the contraband being removed from the house of accused Abdul Latif and that therefore the investigating officials thought it fit to enter the said house after sunset, FIR No. 55/08 Page 58 of 60 State Vs. Abdul Latif and Ors.
without making any efforts to obtain a search authorization warrant. Though Ld. APP for State has fairly conceded that the provision of Section 42 NDPS Act have not been followed by the investigating agency, his submission in this regard is that the factum of arrest of accused Abdul Latif was duly intimated to the superior officers in due course of time and that therefore no prejudice can be stated to have been caused to the accused Aka. Suffice is to state that now it is well settled by judicial dicta that total non compliance of section 42 NDPS Act is absolutely impermissible. The Apex court of this country has reiterated more than once that though a late compliance with satisfactory explanation about the delay will be acceptable compliance of section 42, total non compliance of requirement of subsection (1) and (2) of section 42 is impermissible. Particular reference in this regard is made to the Supreme Court decision in Karnail Singh Vs. State of Haryana (Supra). As discussed hereinabove, present is not a case where the prosecution has taken a stand that due to some special circumstances involving emergent situation, the information received from Abdul Latif could not be reduced into writing immediately and a copy therefore could not be sent to the superior officer and that the said acts were done subsequently within a reasonable period of the receiving of the said FIR No. 55/08 Page 59 of 60 State Vs. Abdul Latif and Ors.
information. Present is a case where there has been a total non compliance of section 42 of the NDPS Act and therefore in the considered opinion of this court, the entire search and seizure proceedings allegedly conducted at the house of accused Abdul Latif stand vitiated and he therefore cannot be held guilty with respect to the heroin assertedly recovered from his residence.
54.In view of the aforementioned discussion it is hereby held that the prosecution has been able to prove beyond reasonable doubt that both the accused persons had conspired to sell/purchase heroin and in pursuance of the said conspiracy on 1/9/2008 at about 8:20 PM near F block Gandhi Vihar road, the accused Mohd. Akhtar had handed over intermediate quantity of heroin to accused Abdul Latif and that therefore both the accused persons are to be held guilty of the offences punishable u/s 21 (b) and Section 29 of the NDPS Act. In addition, in view of the discussion held in para 40, the accused Abdul Latif is also hereby held guilty of the offence punishable u/s 471 IPC for having obtained two mobile connections on the basis of fake documents.
Announced in the open court (Anu Grover Baliga)
on this 24th day of May, 2014 Special Judge: NDPS
New Delhi
FIR No. 55/08 Page 60 of 60