Delhi District Court
State vs . Shambhu Kumar Sahni @ Ajay Kumar on 7 April, 2018
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI
Sessions Case No. 551/2016
FIR No. 235/2012
PS: Crime Branch
U/s. 20/25 NDPS Act
In the matter of:
State Vs. Shambhu Kumar Sahni @ Ajay Kumar
S/o Ram Shobhit Sahni
R/o House of Sukhari Sahni, Andarkila
Nakhas Chowk, PO & PS Town Hajipur,
Vaishali, Bihar
Date of institution 15.12.2012
Arguments heard 21.03.2018
Date of judgment 07.04.2018
JUDGMENT: PROSECUTION CASE:
1. Brief facts, as per prosecution case, are that on 28.09.2012, at about 10.10 pm a secret information was received by HC Upender no.25/Crime, that a person namely Shambu Sahni who is the resident of Samastipur, Bihar and involved in supply of ganja in Ghaziabad(U.P) will tonight come from Bihar between 11.45 pm to 12 midnight alongwith ganja in his Maroon Colour Hyundai EON car which doesn't have a number plate in front and has Bihar registration number plate at the back. This person will go to Ghaziabad via Akhshardham flyover and if followed, can be apprehended alongwith heavy quantity of illegal ganja.
FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 1 of 35 HC Upender informed about the same to SI Gurmeet Singh (first IO) who, after verifying, informed about the same to Insp. Jai Bhagwan. After that Insp. Jai Bhagwan directed him to take appropriate action upon which SI Gurmeet Singh registered the DD No.28 at 10.25 pm and made compliance of sec 42 NDPS Act. After that a raiding team, comprising of SI Gurmeet Singh, HC Upender, HC Azad, HC Dilbag and Ct. Rupesh, was constituted. After that raiding team made their departure entry vide DD no.29 at 10.40 pm. SI Gurmeet Singh took his IO kit, electronic weighing scale alongwith other necessary articles and he alongwith HC Upender, HC Azad and HC Dilbag proceeded in his private Swift Dzire Car bearing registration number DL 9CAC0525 and Ct. Rupesh proceeded alongwith the secret informer on his private motorcycle bearing regn. no. DL6SCAL7121. At about 11.15 pm they reached Akshardham Flyover where SI Gurmeet Singh shared the secret information with 67 passersby and requested them to join the raiding party but they refused to join them and they without disclosing their names left the spot by citing their valid reasons. Ct. Rupesh and secret informer took their position near the Akshardham Flyover and rest of the team members took their position at some distance. At about 11.55 pm, Ct. Rupesh gave signal towards Maroon Colour Hyundai EON car, which was coming from the side of Sarai Kale Khan to Ghazipur, by turning on the light of his motorcycle upon which SI Gurmeet started his car and proceeded towards Ghazipur and when the said car attempted to go ahead of the car of SI Gurmeet, SI Gurmeet got stopped the said car by pushing him towards left side. The driver (accused) of the car attempted to flee but he was overpowered by HC FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 2 of 35 Upender and HC Azad. After that SI Gurmeet Singh informed him about the secret information and served him with the notice u/s 50 NDPS Act. Accused was informed about his legal rights that his search as well as search of his car is to be taken and if he is willing, the search can be made in the presence of a Magistrate or a Gazetted officer and prior to that he can take search of the police team and their car. The accused refused the same and wrote his refusal on the carbon copy of the notice u/s 50 NDPS Act and signed the same. No contraband was recovered from the search of the accused, however, one white colour plastic bag containing 27 Kgs 450 gm ganja was recovered from the rear seat of the car and another white colour plastic bag containing 27 kg ganza was recovered from the dickey of the car of the accused. The bags were given serial no.1 & 2. Two samples of ½ kg ganja were drawn from each of the bags and after keeping them in transparent polythenes they were converted into cloth pullindas. The sample pullindas prepared from Serial no.1 were given Mark 1A and 1B respectively and likewise samples of Serial no.2 were given Mark 2A & 2B. SI Gurmeet Singh sealed the aforesaid two bags and samples with seal of GSK and filled FSL form and thereafter, handed over the seal to HC Upender. The pullindas were taken into possession vide a seizure memo. After that SI Gurmeet prepared a rukka for the commission of offence u/s 20/25 NDPS Act and handed over the rukka as well as all sealed pullindas with FSL form alongwith carbon copy of seizure memo to Ct. Rupesh with the instruction to handover the rukka to the DO and case property to the SHO, Crime Branch for the compliance of sec 55 NDPS Act. After registration of the case further investigation was marked to SI Sanjeev FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 3 of 35 Kumar, thus, he proceeded to spot where SI Gurmeet Singh handed over to him all the documents. He prepared the site plan of spot. In the mean time Ct. Rupesh came to the spot and handed over him a computerised copy of FIR and after that SI Sanjeev Kumar put the FIR number on all the documents. After interrogation accused was arrested and his disclosure statement was also recorded. Accused disclosed that he was handed over the said ganja by Ashok a resident of Patna to deliver the same to one Gullu at Ghaziabad. The EON car of accused was taken into possession and thereafter the accused was produced before Insp. Jai Bhagwan. Car and personal search articles were deposited in the Malkhana. SI Sanjeev Kumar recorded the statement of SHO Crime Branch and MHCM and other police officials. He then submitted report u/s 57 NDPS act to Insp. Jai Bhagwan and by that time SI Gurmeet had already submitted his report u/s 57 NDPS Act. The accused was taken on two days PC remand, however, no clue of Ashok could be gathered and Gullu had passed away. FSL result confirmed that recovered substance was ganja. The EON car No.BR31J4254 was found registered in the name of accused. After completion of investigation, the accused was chargesheet u/s 20/25 NDPS ACT.
2. Vide order Dt.04.02.13 a charge u/s 20(b)(ii)(C) NDPS Act was framed for possessing ganja weighing 54.45 kg and u/s 25 NDPS Act for using the said EON car for transporting the contraband.
3. In order to establish the aforesaid accusations, the prosecution examined 11 witnesses. Brief outline of the testimonies of these witnesses is as under: FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 4 of 35 (3.1.) HC Jaipal Singh (PW1) is the duty officer who recorded the FIR. He placed on record the copy of FIR as ExPW1/A and his endorsement on the rukka as ExPW1/B. (3.2.) HC Sandeep Kr. (PW2) is the police official who on 29.09.2012 was posted in the office of ACP, AATS Crime Branch. This witness brought on record the DD no.28 (Ex.PW2/A) which was received in their office on 29.9.12 and registered in their records vide diary no 1139 (PW2/B). PW2 further brought on record two reports u/s 57 NDPS Act. The report sent by SI Gurmeet Singh was placed on record as Ex.PW 2/C and SI Sanjeev Kumar Ex.PW 2/D while the entry numbers i.e. 1140 and 1141 by virtue of which these reports were entered in their records were placed on record vide Ex.PW2/E and PW2/F. (3.3) HC Upender (PW3) is one of the members of the police team which held the accused and effected recovery of ganja from the accused person. This witness has deposed more or less on the same lines as discussed in the para no.1, thus, the detailed account of his testimony is not being repeated here for the sake of brevity. The entire case property was firstly brought on record by this witness, thus, particular part of his testimony where he exhibited the cases property is being discussed here in order to specify the particulars with which the case property was brought on record. During evidence of this witness the entire case property which includes the contraband recovered from the accused as well as the samples which were received back from the FSL and also the car which was used by the accused to transport the contraband was brought on record. The documents as well as case FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 5 of 35 property which were brought on record by this witness are mentioned as under alongwith their identification marks: i. Carbon copy of notice 50 NDPS Act as Ex.PW3/A, ii. The Reply of the accused on the said notice as Ex.PW3/B, iii. None personal search Memo as Ex.PW3/C, iv. Seizure Memo of contraband ExPW3/D, v. Arrest Memo ExPW3/E, vi. Personal Search Memo ExPW3/F, vii. Seizure Memo of Hyundai Eon Car ExPW3/G, viii.Disclosure statement of accused Ex.PW3/H, ix. Original notice 50 NDPS Act recovered from the personal search of the accused Ex. PW3/I, x. Nine toll tax receipts recovered from personal search of the accused collectively exhibited as Ex.PW3/J, xi. Sample Mark 1A and 2A which were sent to FSL were produced with the seal of FSL. The transparent polythene and the cloth in which both the samples were kept and wrapped were placed on record as Ex.P1 & P2 and Ex.P3 & P4 respectively, xii. Other two sample pullindas Mark 1B and 2B were produced with the seals of IO and SHO and placed on record as Ex.P5 and P6. xiii.The cloth pullindas of contraband Sl. No.1 and 2 were also produced with the seals of IO and SHO and these pullindas were brought on record as Ex.P7 and P8.
(3.4) HC Jagnarayan (PW4) is the MHCM. He deposed that on 29.09.12, he was posted at PS Crime Branch Malviya Nagar, Delhi and on that day, at about 04.45 am, the SHO Insp. Palvinder Singh had deposited in malkhana six sealed pullindas i.e. Mark1 and 2 (the contraband) and four pullindas i.e. Mark 1A, 1B, 2A and 2B (samples) alongwith FSL form with carbon copy of seizure memo. In this regard, he made an entry at Sl. No.1697 in register no.19, copy of which is FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 6 of 35 brought on record as ExPW4/A. He further deposed that on the same day at about 9.30 am SI Sanjeev Kumar produced one Hyundai EON car without number plate as well as personal search articles consisting original notice u/s 50 NDPS Act, Rs.750/, one mobile phone make Reliance and nine receipts of payment of Highway toll tax which he deposited in the malkhana and in this regard he made another entry in register no.19, i.e. entry no. 1698 copy of which is brought on record as ExPW4/B. On 04.10.2012, on the direction of SHO, he, through Ct. Jagat Singh, sent the two sample pullindas mark 1A and 2A with FSL form to the FSL vide RC No.582/21 ExPW4/C. The receipt of deposit of said pullindas at FSL was brought on record as ExPW4/D. (3.5) Ct. Jagat Nagar (PW5) is the police official who deposited the sample parcels and FSL form with FSL Rohini.
(3.6) SI Gurmeet Singh (PW6) is the first IO and HC Dilbag Singh (PW7) is another member of the police team who initially apprehended the accused and made recovery of contraband. The testimony of these witnesses is also not repeated here for the sake of brevity as they have deposed more or less on the same lines as mentioned in Para No.1.
(3.7) Insp. Sanjeev Kumar (PW8) is the second IO of the case. His testimony is also on the similar lines as described in para no.1.
(3.8) Insp. Palvinder Singh (PW9) is the then SHO of Crime Branch to whom all the six sealed pullindas were produced in compliance of the provision of sec.55 of NDPS Act. He deposed that on 29.09.2012 at about 4.20 am, Ct. Rupesh came to his office and produced six sealed FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 7 of 35 pullandas sealed with the seal of GSK, FSL form bearing the sample seal and carbon copy of the seizure memo. He put his seal of PSC on all the sealed pullandas as also on FSL form and after inquiry from the Duty Officer mentioned the FIR number on the same and then he deposited them with the MHCM who made relevant entry in register no. 19 which was signed by him.
(3.9) Insp. Jai Bhagwan (PW10) is the officer concerned with whom SI Gurmeet Singh shared the secret information. He deposed that on 20.09.12, SI Gurmeet Singh produced the secret informer before him and after his satisfaction, he telephonically informed ACP Bir Singh about the secret information who directed to take necessary action whereupon he directed SI Gurmeet Singh to conduct a raid and take necessary action. In regard to secret information, SI Gurmeet Singh lodged DD No.28 (ExPW 6/A) and produced the same before him in compliance of section 42 NDPS Act. He forwarded the said DD to the ACP. On the same day both the IOs submitted their reports regarding seizure and arrest of the accused. He put his endorsement and forwarded the reports Ex.PW10/A and PW8/B to the ACP.
(3.10) HC Rupesh Kumar (PW11) is also the member of raiding team and he also deposed on the same lines of Para no.1.
4. After completion of the prosecution evidence, the statement of the accused was recorded under section 313 Crl.P.C. to explain the above detailed incriminating circumstances existing against the accused. The accused pleaded innocence and claimed false implication. Accused FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 8 of 35 stated that nothing has been recovered from his possession or from his car. Accused opted not to lead any defence evidence.
5. I have heard Mr. Maqsood Ahmed, Ld. Addl. Public Prosecutor as well as Sh. K.K. Sharma, Ld. LAC and perused the record. During the course of arguments, Ld. Addl. Public Prosecutor submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt through the testimonies of the prosecution witnesses, thus, he prayed that accused may be convicted for the offences charged with. He further submitted that the raiding team members as well the second IO i.e. PW3, PW6, PW7, PW8 and PW11 have fully supported the prosecution case in regard to the recovery of contraband and arrest of accused. He further submitted that necessary compliance of sec 42, 50, 55 and 57 of NDPS Act were properly made and same has been proved with the evidence of prosecution witnesses. Thus, he submitted that accused may be convicted for the offences he is charged with.
6. While Ld. LAC submitted that prosecution has failed to prove its case against the accused beyond reasonable doubt. He made the following submission and contended that prosecution case is doubtful:
(a) that no public witness has been joined during entire investigation despite availability and the entire case rests solely on the testimony of police officials and there are several material contradictions in their testimony;
(b) that no call record is produced to prove that ACP was informed about the secret information;
(c) that no written permission of ACP is on record to conduct the raid;
FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 9 of 35
(d) that writing work was done in the street light but no street light has been shown in the site plan;
(e) that none of the witnesses stated that how many times the contraband was weighed;
(f) that PW7 could not tell during his cross as to from which bag the sample was taken;
(g) that PW6 SI Gurmeet Singh did not make any entry in record that he is going to conduct raid by his private car;
(h) that PW6 did not tell when and from where he purchased the IO kit and he did not place on record the proof of its purchase;
(i) that accuracy certificate of the weighing scale was brought on record;
(j) that PW11 stated that he did not sign any document on spot and he was not aware as to what did IO bag contained. He was also not aware of the colour and size of the bag;
(k) that 9 toll tax receipts are filed on record as the accused was lifted from Agra, U.P.;
(l) that statement of PW9 was recorded only once i.e. 29.9.12 while he stated that he got sent the samples to FSL on 4.10.12, however, in this regard no statement of this witness has been recorded;
(m) that the alleged recovery was effected on 29.12.2012, however, samples were sent to FSL on 4.10.12 with the delay of 6 days from the alleged recovery.
7. Ld. LAC pointed the following contradictions:
(a) PW7 stated that IO had taken the IO kit from the malkhana but PW6 SI Gurmeet Singh stated that IO kit was already with him as the same was him personal kit;
FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 10 of 35
(b) PW6 stated that disclosure statement of the accused was recorded at about 88.30 am while other witnesses told that raiding team left the spot at 88.30 am;
(c) PW6 told that he sent the compliance report u/s 57 NDPS Act on 29.09.12 at about 1 pm while PW8 said that it was sent at about 11 am;
(d) Some witnesses told that from the personal search of accused Rs.75/ were recovered while some said Rs.750/;
(e) Information about the arrest of the accused was not given to his family but some witnesses said this information was given to his wife while some said to his friend;
8. Before making discussions on the different aspects of the case, the different documents which have been brought on record by the prosecution witnesses, are required to be noted. The prosecution brought on record the following documents through the testimony of its witnesses: i. Copy of FIR Ex.PW1/A ii. Endorsemt Ex.PW1/B made on rukka.
iii. DD No.28 Ex.PW2/A iv. Copy entry Ex.PW2/B regarding receipt of DD No.28 in the office of PW2.
v. Special Reports u/ 57 NDPS Act, one prepared by SI Gurmeet Singh and another by SI Sanjeev Kumar Ex.PW2/C and Ex.PW2/D. vi. Copies of entires Ex.PW2/E and Ex.PW2/F regarding receipt of notice u/s 57 NDPS Act in the offence of PW2.
vii. Carbon copy of notice u/s 50 NDPS Act Ex.PW3/A. viii.Reply of accused to the said notice Ex.PW3/B. ix. No recovery memo prepared by IO Ex.PW3/C. x. Seizure memo of case property and FSL Form Ex.PW3/D. xi. Arrest and personal searc memo Ex.PW3/E and Ex.PW3/F. FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 11 of 35 xii. Seizure memo of vehicle Ex.PW3/G. xiii.Original notice u/s 50 NDPS Act Ex.PW3/I recovered from personal search of accused.
xiv.Nine slilps of tall tax Ex.PW3/J recovered from personal search of accused.
xv. Copy of relevant entry of register no.19 Ex.PW4/A regarding deposit of four cloth pullandas (Mark 1A, 1B, 2A, 2B), two plastic bags (Mark 1 and 2), one FSL form, one carbon copy of sieuzre memo.
xvi. Copy of relevangt entry of register no.19 Ex.PW4/B regarding deposit of personal search articles consisting of original notice u/s 50 NDPS Act in the Malkhana.
xvii.Copy of RC register Ex.PW4/C regarding sending of sample pullanda to FSL through Ct. Jagat Singh.
xviii.Acknowledgement receipt Ex.PW4/D regarding deposit of sample pullanda with FSL.
xix. Rukka as Ex.PW6/C. xx. Site plan as Ex.PW8/A. xxi. FSL Result as Ex.PW8/C
9. During the course of evidence, the prosecution witnesses brought on record the following case property: i. plastic pouch containing seeds type substance as Ex.P1 and P3.
ii. Cloths used for making parcels as Ex.P2 and Ex.P4.
iii. Sample pullanda drawn for sample purpose Ex.P5 and P6.
iv. Plastic bag containing the substance (sl. no.1) Ex.P7 recoverred from the back seat of the vehicle of accused.
v. Another plastic bag containing the substance (sl. no.2) Ex.P8 recovered from the dickey of vehicle of the accused. vi. Photographs of the Eon Car No. BR31J4254 Ex.P8/1 to Ex.P8/2 (identity of the car was not disputed by Ld. Defence counsel during prosecution evidence) FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 12 of 35 DISCUSSION ON THE POINT OF COMPLIANCE OF SEC 42 NDPS ACT:
10. As per settled provision of section 42, the concerned police officer is required to inform his immediate senior officer about the secret information within 72 hours of its receipt. In regard to the compliance of sec 42 NDPS Act, prosecution has examined four witnesses i.e. PW6 SI Gurmeet Singh (the 1st IO), PW3 HC Upender, PW10 Insp. Jai Bhagwan and PW2 HC Sandeep Kumar. In this regard PW6 deposed that on 28.09.2012, at about 10.15 pm PW3 came to the office of AATS, Malviya Nagar alongwith the secret informer who passed on the secret information about movement of the accused to him and thereafter, he produced the secret informer before PW10 who informed about the same to the ACP concerned and ACP concerned gave his approval over telephone to proceed further. He deposed that in regard to the secret information, he made a DD entry i.e. DD No.28(ExPW 2/A) and gave a copy of this DD entry to PW10. PW6 brought on record the carbon copy of said DD as Ex6/A. PW3 who had brought the secret informer has very well supported the case of the prosecution in this regard. The testimony of PW6 has been duly supported and corroborated by PW10 who deposed that on 28.09.12, at about 10.15 pm, PW6 had produced the secret informer in his office and after satisfying with the secret information, he then informed about the same to the ACP Bir Singh who directed him to take necessary action. He deposed that in this regard the PW6 lodged the DD no.28 and produced the same to him in compliance of section 42 NPDS Act. PW10 was also given DD no.28 which he after his endorsement forwarded to FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 13 of 35 the ACP concerned. In order to prove that the said information was passed onto the ACP concerned within 72 hours, prosecution examined PW2 who brought on record the relevant record to fortify the claim of the prosecution that the information about the secret information was sent to the ACP within the prescribed time. This witness deposed that on 29.09.12 the DD no.28 which was duly forwarded by Insp. Jai Bhagwan was received in their office and same was entered in their record at entry no.1139 copy of which was brought on record as Ex.PW 2/B. Thus, it is clear from these discussions that the secret information about the movement of accused was received by the office of AATS on 28.09.12, at about 10.15 pm and zist of the same was mentioned in the DD ExPW2/A. It is further clear that PW6 handed over this DD to his senior officer i.e. PW10 who after putting his endorsement forwarded the same to the ACP concerned which was acknowledged in the office of ACP on 29.09.12 vide entry no.1139 copy of which is also brought on record as ExPW2/B. Thus, keeping in view of these discussions it is held that compliance of sec 42 NDPS Act has been properly made.
DISCUSSION ON THE POINT OF RECOVERY OF CONTRABAND:
11. As per prosecution case, on 28.09.12, a secret information was received by SI PW6 Gurmeet Singh after which PW6 with permission of his superiors constituted a raiding team comprising of himself, HC Upender, HC Azad, HC Dilbag and Ct. Rupesh. PW6 as well as other members of his team have spelled out in detail the manner in which the accused was apprehended and recovery of contraband was effected from his car. All the recovery witnesses (PW3, PW7 & PW11) have FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 14 of 35 very well supported the version of each other and deposed more or less on same lines in regard to the recovery. PW6 who is the first IO and incharge of the raiding team deposed that the entire raiding team alongwith the secret informer left the office at about 10.40 pm after making their departure entry i.e. DD no.29 Ex PW6/B. PW6 stated that that he alongwith HC Upender, HC Dilbag and HC Azad were in his Swift Dezire Car while Ct Rupesh and secret informer were on a motorcycle and while leaving he took his IO Kit, NDPS Kit and his weighing machine with him. He further deposed that he reached near Akshardham Flyover at about 11.15pm and there he requested 67 passers by to join investigation but none agreed then he deputed Ct.Rupesh and secret informer 4050 meters towards Yamuna and he took position near Akshardham Flyover. At about 11.55 pm, Ct. Rupesh gave him signal by blinking the light of his motorcycle indicating the arrival of the target. IO found coming a car (Maroon colour EON car) from Sarai Kale Khan side and going towards Ghaziabad which he got forcefully stopped. Accused came out of the car and started running and he was apprehended by HC Upender and thereafter he was served with the notice u/s 50 NDPS Act but accused refused to have his search conducted in the presence of a Gazetted officer. Two white colour plastic bags, one from the rear seat of the car containing 27.450 Kg Ganja and another one from dickey of the car containing 27 Kg Ganja were recovered. Out of five raiding team members prosecution examined four police officials including the first IO and vide order dt. 31.01.2015 the HC Azad was dropped on the request of Ld.Addl PP as other witnesses on the similar facts were available. FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 15 of 35
12. All the raiding team members have properly spelled out all the material facts ie pertaining to the time of departure of raiding team members from their office, the vehicles in which they left, the time when they reached at the spot, what articles they carried with them, where they took their positions, the manner in which they apprehended the accused, number of bags recovered from the car of the accused and how much contraband each bag was containing, the colour of the bags, how much contraband was taken out from each bag for sample and number of sample prepared by the IO. They have deposed on the similar lines and very well supported the version of each other which leaves no doubt about the veracity of the prosecution case as spelled out in chargesheet and proved through the testimony of the recovery witnesses. The contradictions pointed out by Ld. LAC are minor contradictions and are insignificant and do not affect the merit of the case. The witnesses normally come to depose after long gap of time of the joining investigation, thus, it is quite natural that some minor contradictions would surface but these minor contradictions are liable to be ignored till the time they don't touch the core of the case. In the case of State of Rajasthan Vs. Kalki, AIR 1981 SC 1390 their Lordships have observed that 'in the deposition of witnesses there are always normal discrepancies, however honest and truthful they may be. It was further observed that these discrepancies are due to normal errors of observations, normal errors of memory, due to lapse of time and due to mental disposition such as shock and horror at the time of occurence and the like. Dealing with the aspect of minor discrepancies, FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 16 of 35 contradictions, the Hon'ble Supreme Court of India in the matter of Jugendra Singh vs State of U.P., reported in II (2012) CCR 431 (SC)=IV (2012) SLT 244=II (2012) DLT (Crl.) 794 (SC)= AIR 2012 SC 2254, held as under: "The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
13. The accused has claimed that he was lifted from Arga, U.P. and the contraband shown to have been recovered from his car was planted upon him. As per record the accused is permanent resident of Bihar and he has not proved on record that on the date and time of recovery of contraband he was stationed at Agra, UP. He has not explained purpose of his visit to Agra and the place where he was present in Agra. Thus, in the absence of any supporting evidence, the said defence of the accused cannot be trusted and consequently, it is to be held that he took this defence for the sake of the defence and there is no substance in it.
14. The accused has claimed that contraband was planted upon him after he was was lifted from Agra. His this defence is not reliable for two FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 17 of 35 reasons, firstly he has failed to prove his presence at Agra at the time of alleged recovery, and secondly, he simply claimed false implication and foisting of contraband upon him, however, he has not mentioned any reason whatsoever, for his false implication. Accused has neither claimed animosity nor acquaintance with the police officials; hence, there is no chance or reason for his false implication. Furthermore, till date he has not raised any protest against his alleged false implication which shows that he has taken this plea for the sake of plea and there is no substance in it. In view of these discussions it is held that prosecution has successfully proved the recovery of contraband from the possession of the accused.
CONSCIOUS POSSESSION:
15. The recovery of the said two bags of contraband was effected from the rear seat of the car as well as from the dickey of the car of the accused. Thus, it also to be seen whether the accused was in conscious possession of the contraband. It is clear from the aforesaid discussions that recovery of contraband from the car which was being driven by the accused has been proved. It is admitted position of fact that the car from which the recovery took place is registered in the name of the accused. It is clear from the testimony of the recovery witnesses that accused attempted to flee from the spot, however he was apprehended and subsequently the aforementioned recovery was effected from his car. All these facts are the clear indications of the culpable mind of the accused that he was well aware that he had contraband in his car. It is well settled law that once the possession is established then it has to be FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 18 of 35 assumed that accused was in conscious possession unless he proves it otherwise. In this regard this court is supported by the case law reported as Madan Lal v. State of H.P., 2003(4) R.C.R.(Criminal) 100 :
(2003) 7 SCC 465. The relevant para reads as follows :-
"26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sec. 35 and 54 of the Act."
16. Thus, in view of settled law once the possession is proved then it has to be presumed that accused was in conscious possession of the contraband unless he rebuts the same. In the instant case, accused has not put forth any defence or rebuttal rather he has completely disowned the recovery. Thus, in view of the facts discussed above as well as in the absence of any evidence in rebuttal, it is assumed that accused had conscious possession of the contraband recovered from his car. COMPLIANCE OF SECTION 50 OF NDPS ACT:
17. The legal position in respect to the section 50 NDPS Act has been laid down by Hon'ble Supreme Court in the case titled as State Vs Baldev Singh reported as 1999 AIR (SC) 2378 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 19 of 35 case of a chance recovery. The relevant para of this judgment reads as under:
11. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted.
18. In the case titled as State of Punjab Vs Balbir Singh and reported as 1994(3) SCC 299 same view has been taken by Hon'ble Supreme Court. The relevant para reads as under:
27.The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :
1) If a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards. he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act.
19. It is held in the case of Madan Lal Vs State of Himachal Pradesh reported as 2003(7) SCC 465 that the compliance of section 50 of NDPS Act is required only when personal search of the accused is to be FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 20 of 35 conducted, however, the provisions of this section is not attracted in case the vehicle of the accused is to be searched. The relevant para reads as under:
17. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra and Anr., (JT 1999(8) SC 293) : 1999(4) RCR(Cr.) 575 (SC), The State of Punjab v. Baldev Singh (JT 1999(4) SC 595) :
1999(3) RCR(Cr.) 533 (SC), Gurbax Singh v. State of Haryana, (2001(3) SCC 28) : 2001(1) RCR(Crl.) 702 (SC). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-
compliance of Section 50 of the Act is also without any substance.
20. It is clear from the evidence of PW3, PW6, PW7 & PW11 that in the instant the case, the recovery of ganja was effected from the car of the accused. Thus, in the instant case the compliance of section 50 NDPS Act was not required to be made as the recovery was not effected from the personal search of the accused and it was recovered from his car.
21. However, as per prosecution case, after apprehension of the accused, he was served with the mandatory notice and only thereafter, his search as well as the search of his vehicle was carried out. Thus, it is to be seen whether compliance of sec 50 was properly made before his search was carried out. PW3 is the member of raiding team and in this regard he deposed that after apprehension of the accused, the IO (PW6) made inquiries from the accused and upon inquiry he revealed his name as Shambhu Sahni. IO prepared notice under section 50 of NDPS Act (ExPW3/I) and served the accused with this notice alongwith carbon copy. He was told that they had information that he FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 21 of 35 was having the contraband in his vehicle and thus, he and his vehicle are required to be searched. PW3 also deposed that accused was told that if he wants, he can take search of the members of the raiding team and their vehicle and he was also told that his search can also be conducted in the presence of a Magistrate or a Gazetted Officer but he refused and gave his written reply which is mentioned on the carbon copy of notice (ExPW3/A) at the point mentioned at point ExPW3/B. Once the accused denied to exercise the options given to him, the raiding carried out the search of the accused and the search of his vehicle and from the search of the accused nothing was recovered and in this regard IO prepared the no recovery memo which this witness brought on record as ExPW3/C. It is further clear from the testimony of this very witness that after arrest personal search of the accused was carried out vide personal search memo ExPW3/F and original notice served upon the accused was recovered from his personal search. During his statement u/s 313 Cr.P.C., the accused was asked if it is correct that original notice u/s 50 of NDPS Act ExPW3/I was recovered from his personal search and accused did not dispute this fact which also fortifies the claim of the prosecution that accused was served the notice before his search. The testimony of PW3 has been duly corroborated by the IO/PW6 (who served the said notice), PW7 and PW11, the other raiding team members. No material contradiction came to the light during the cross examination of these witnesses on this aspect as well. Ld. LAC submitted that there is no proper compliance of section 50 of NDPS Act as accused was not explained the meaning of Magistrate and Gazetted Officer and in the absence of FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 22 of 35 proper compliance, the process of serving the notice stood vitiated; hence accused is entitled to be acquitted for this defect alone. This court doesn't find any substance in this contention of the ld. LAC as it is clear from the reply of the accused ExPW3/C that he stated in his own hand writing that he was served with the notice and also explained contents of the same as well as the meaning of the Magistrate and Gazetted Officer. The IO was also cross examined on this aspect who clearly stated that he had explained the meaning of a Magistrate and Gazetted Officer to the accused. Thus, under these circumstances it cannot be assumed that accused was not explained the meaning of the said authorities. Further, it is also clear from the cross examination of PW11 that testimony of this witness on the point of service of the notice and the manner in which accused was served with this notice with the fact that he was also explained the meaning of these authorities, remained unrebutted. In view of these discussions it held that accused was properly served with the notice under section 50 of NDPS Act.
PROCEEDINGS REGARDING DRAWING OF SAMPLE, SEIZURE OF CONTRABAND AND COMLIANCE OF SECTION 55 NDPS ACT:
22. PW6 SI Gurmeet Singh is the first IO of the case who got the recovery effected from the car of the accused. He deposed that the plastic bag recovered from the rear seat contained 27.450 Kg ganja and the other bag recovered from the dickey was having 27 Kg ganja. These bags were given serial number 1 & 2. PW6 drew two samples of 500g each from both the bags and kept them in separate transparent polythenes and these samples were given Mark 1A & 1B and Mark 2A and 2B respectively. After that IO/PW6 converted them in six cloth pullandas FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 23 of 35 and he sealed all these pullandas with the seal of GSK. He also filled up the FSL form. Thereafter, he seized all these pullandas vide seizure memo ExPW3/D and handed over the seal to HC Upender. All the recovery witnesses have deposed on the similar lines of the deposition of PW6 and very well supported his version regarding the sealing and seizure of the contraband especially PW3 and PW7 who are witnesses to the seizure of contraband and its samples.
23. PW6 deposed that after seizure of contraband and its samples, he through PW11 Ct. Rupesh sent the said case property to SHO (PW9) who confirmed the same. PW9 Insp. Palvinder Kumar also corroborated the version of PW6 and PW11. He stated that at about 4.20 am Ct. Rupesh came to his office and handed over to him the six pullandas Mark 1, 2, 1A, 1B, 2A & 2B which were sealed with the seal of GSK. He thereafter put his seal of PSC on all these pullandas and deposited these pullandas, carbon copy of seizure memo and FSL form with MHCM (PW4) who made relevant entry in the Register No.19 which was signed by him. In this regard PW9 also made an entry (DD no.4) in the Roznamcha. The entry in the Register no.19 has been brought on record as ExPW4/A.
24. Thus, it is clear that after recovery the sampling was done on the spot and proper procedure regarding sampling was followed and IO did not retain the seal with him and after sealing the pullandas, he handed over the seal to PW3 HC Upender who also confirmed the same. It is further clear that immediately after seizure, the pullandas of the contraband, samples and FSL form were sent to SHO who also put his seal and FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 24 of 35 immediately deposited the case property in the Malkhana. Thus, sampling was done properly and proper compliance of Section 55 NDPS Act has been done.
COMPLIANCE OF SECTION 57 OF NDPS ACT:
25. In order to prove that the information regarding arrest and seizure was made to the ACP concerned within the prescribed time, the prosecution examined PW2 HC Sandeep Kumar, an official from the concerned AATS Crime Branch. This witness has brought on record two reports u/s 57 NDPS Act, one submitted by SI Gurmeet Singh regarding the apprehension and seizure of contraband (ExPW2/C) and another one submitted by SI Sanjeev Kumar (ExPW2/D). This witness deposed that on 29.09.2012 was posted in the office of ACP, AATS Crime Branch and on that day two reports u/s 57 NDPS Act, one sent by SI Gurmeet Singh and another one sent by SI Sanjeev Kumar were received and were entered in their records at entry numbers i.e. 1140 and 1141 and these reports bear the signature of the ACP concerned at Point A. PW2 has placed on record the copy of the relevant entries as Ex.PW2/E and PW2/F.
26. During the course of arguments Ld. LAC submitted that the prosecution case is highly doubtful as no public witness has been joined during investigation. In the present case no public witness has been joined to the investigation, however it is clear from the testimony of the prosecution witnesses that the the PW6/IO made efforts to join public witnesses, however, none agreed. Thus, once, it has come on record that public witness could not be joined despite efforts were made then FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 25 of 35 non joining of independent witness is not fatal to the prosecution case. In this regard this court is supported by the case law i.e. Ajmer Singh Vs State of Haryana reported as 2010 (2) SCR 785. The relevant para reads as under: It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.
27. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused the police officials is shown. In Sunil Tomar Vs. State of Punjab, Criminal Appeal no. 16901691 of 2012 decided on 19.10.12, it was held : 'In a case of this nature, it is better if prosecution examines atleast one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case.
28. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 26 of 35 without corroboration by an independent witness if same is cogent and reliable. In Rohtas Vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that : 'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
29. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard the Hon'ble High Court in the case of Bheru Lal Vs State while observing that recovery cannot be doubted for the reason of non joining of public witness held as under:
19.Dealing with a similar contention in 'Ram Swaroop v. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
30. Thus, in view of the settled legal position the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non joining of independent witness as firstly it is clear that sufficient efforts were made by the PW6/ First IO to join investigation and it is further clear from the cross examination of PW 8/second IO that he explained that he could not join any public witness FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 27 of 35 as at that point of time none was available on the spot and residential area was far off from the spot. Furthermore, the testimonies of the police officials do not suffer from any material contradiction. Moreover, no animosity between the accused and the police officials has been pointed out therefore, even otherwise there is no reason to disbelieve the testimony of police officials.
31. Ld. LAC also submitted that there is substantial delay of 6 days in sending the sample to the FSL, thus, possibility of tampering of sample cannot be rules out. Thus, he submitted that prosecution case becomes doubtful on this ground also. As far as the delay in sending the sample to FSL is concerned, it is well settled law that delay in sending the sample is not fatal unless it is shown that the sample was tampered with. In the case of Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Hon'ble Supreme Court ignored the delay of 15 days and held that the statements of witnesses and the report of FSL shows sample was received in a sealed cover and there was no tampering of the sample. In the cases of Ramesh Kumar Rajput @ Khan Vs. State of NCT of Delhi MANU/DE/0786/08 and Bilal Ahmad Vs. State 2011 III AD (Crl.) (DHC) 293, the delay of 13 days and 59 days respectively was ignored as the seals on the sample were found intact till the time sample was received by the FSL.
32. In the instant case also it is clear from the prosecution evidence that after recovery of contraband, the pullandas of samples Mark 1A, 1B, 2A & 2B were sealed by the PW6/IO with seal of GSK and after sealing, the sample pullandas alongwith pullandas of case propery were sent to FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 28 of 35 the PW9/SHO who also put his seal of PSC over the sample pullandas and he immediately deposited them with other case property with the malkhana mohrar. It is clear from the testimony of PW6 that on 29.09.12, at about 3.15 am, Ct. Rupesh was sent to the PS with sealed samples who, at about 4 am, handed over the same to the PW9, the SHO concerned which is clear from the testimony of PW9 and PW11 Ct.Rupesh. It is further clear that thereafter PW9 put his own seal on the samples and after that he deposited the same with the PW4/MHCM at about 4.45 am. It is further clear from the FSL report Ex PW8/C that both the samples were received by the FSL with the abovesaid two seals which were found to be intact. Thus, it is clear that immediately after sealing the sample, without wasting any time the sample pullandas were deposited in the malkhana and thus, there was no possibility of any one tampering with the samples and furthermore, the samples were received by the FSL with the same seals in intact conditions. Thus, the delay in sending samples is not fatal to the prosecution case as seals throughout remained intact.
33. The FSL report ExPW11/D has confirmed that the recovered substance was ganja (cannabis).
34. The statement of the accused was recorded under section 313 Cr.P.C. to explain the above detailed incriminating circumstances existing against him. The accused claimed false implication; however, he has not mentioned any reason whatsoever, for his false implication. Accused has neither claimed animosity nor acquaintance with the police officials; hence, there is no chance or reason for his false implication.
FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 29 of 35 Furthermore, till date he has not raised any protest against his alleged false implication which shows that he has taken this plea for the sake of plea and there is no substance in it.
35. Besides, the afore discussed submissions, Ld. LAC submitted that prosecution case is highly doubtful for the following reasons also:
(i) that no call record is produced to prove that ACP was informed about the secret information;
(ii) that no written permission of ACP is on record to conduct the raid;
(iii) that writing work was done in the street light but no street light has been shown in the site plan;
(iv) that none of the witnesses stated that how many times the contraband was weighed;
(v) that PW7 could not tell during his cross as to from which bag the sample was taken;
(vi) that PW6 SI Gurmeet Singh did not make any entry in record that he is going to conduct raid by his private car;
(vii) that PW6 did not tell when and from where he purchased the IO kit and he did not place on record the proof of its purchase;
(viii) that accuracy certificate of the weighing scale was not brought on record;
(ix) that PW11 stated that he did not sign any document on spot and he was not aware as to what did IO bag contained. He was also not aware of the colour and size of the bag;
(x) that 9 toll tax receipts are filed on record as the accused was lifted from Agra, U.P.;
FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 30 of 35
(xi) that statement of PW9 was recorded only once i.e. 29.9.12 while he stated that he got the samples sent to FSL on 4.10.12, however, in this regard no statement of this witness has been recorded;
36. Ld. LAC pointed the following contradictions:
(i) PW7 stated that IO had taken the IO kit from the malkhana but PW6 SI Gurmeet Singh stated that IO kit was already with him as the same was him personal kit;
(ii) PW6 stated that disclosure statement of the accused was recorded at about 88.30 am while other witnesses told that raiding team left the spot at 88.30 am;
(iii) PW6 told that he sent the compliance report u/s 57 NDPS Act on 29.09.12 at about 1 pm while PW8 said that it was sent at about 11 am;
(iv) Some witnesses told that from the personal search of accused Rs.75/ were recovered while some said Rs.750/;
(v) Information about the arrest of the accused was not given to his family but some witnesses said this information was given to his wife while some said to his friend.
37. The contradictions and flaws pointed by Ld. LAC are wholly insignificant and immaterial and don't touch the core of the case at all. There is no legal requirement to obtain the CDR record of calls made to the ACP regarding secret information and place it on record and also there is no such requirement to have the order of ACP in writing before proceeding to conduct a raid and what is required as per section 42 NDPS Act is that the officer concerned is to communicate about the secret information, received in regard to contraband and the accused, to his superior officer within 72 hours of the receipt of such information, which has been properly done in this case by the officers concerned and same FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 31 of 35 has been proved on record vide Ex.PW2/A. It is further submitted that PW11 is one of the raiding team members but it is clear from his cross examination that he was not part of the same as he showed his ignorance towards certain facts and none of the documents prepared during investigation bears his signatures. He submits that these facts fortifies the claim of the accused that he has been falsely implicated and contraband was planted upon him. It is clear from the record that a lengthy cross examination of this witness was conducted and this witness withstood the test of this lengthy cross examination and gave all answers firmly. The entire testimony of a witness is to be read to assess his credibility and minor contradictions here and there would not make his testimony doubtful or consequently, the prosecution case doubtful. Some minor contradictions are bound to occur due to time gap and witness cannot be expected to remember all the facts with all minute details. So the factum that PW11 was member of raiding team cannot be doubted merely because he did not remember as to what did IO bag containe or what its colour was, when PW11 remained firm on all material aspects of the case during his cross examination. Furthermore it is clear that there were five members in the raiding team and the documents bears signatures of some of the members. There is no legal requirement that the documents prepared during investigation to be signed by all the raiding/investigation team members. Ld. LAC also submitted that first IO PW6 did not mention in record that he is going to conduct the raid by his private car and he also neither told as to from where he had bought his IO Kit nor place the proof of its purchase on record. Again, these things are immaterial as it is proved on record that FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 32 of 35 a secret information was received and raid was conducted at the informed place and contraband was sealed and seized there. As far as the recovery of toll tax receipts are concerned, these receipts don't support the case of accused that he was lifted from Agra, UP and contraband was then planted upon him rather this fact fortifies the case of prosecution that the accused had travelled from Bihar and was apprehended while going towards Ghaziabad. The prosecution case also does not become doubtful merely because the witnesses could not tell as to how many times the contraband was weighed and also for the reason that street light under which the IO prepared the documents has not been shown in the site plan when the prosecution has proved the recovery from the testimony of number of witnesses. Ld. LAC also submitted that IO did not file on record the accuracy certificate to show that weighing scale was in proper working condition. There is no merit in this submission as it is not the case of the accused that the contraband was not weighed properly as weighing scale was not properly functional. It is also not the case of the accused that the contraband which is recovered from the accused was less and has been shown more due to the faulty weighing scale. Thus, under these circumstances, the non production of accuracy certificate doesn't affect the prosecution case at all. Ld. LAC also submitted that the prosecution case is also higly doubtful as no information of the arrest of the accused was given to his family members. He also submitted that some witnesses stated that the information of the arrest was given to his wife while some said that this information was given to his friend. Again this court does not find any substance in this submission as it is clear from the arrest memo FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 33 of 35 Ex.PW3/E, the information of his arrest was given to Mr. Sujeet, the friend of the accused as well as to the wife of the accused. During cross examination of the prosecution witnesses especially PW3 and PW6, the correctness of the particulars as well as mobile numbers of friend and wife of accused mentioned in the arrest memo, have not been disputed. Furthermore, since the information was given to the friend as well as wife of the accused, thus, the version of some of the witnesses that information was given to his friend and other witnesses that information was given to his wife, cannot be considered to be a contradiction. The other contradictions pointed out by the Ld. LAC are also of trivial nature and doesn't affect the core of the prosecution case. It is also clear from the testimony of the prosecution witnesses that all the material witnesses were subjected to a lengthy cross examination and they very well withstood the test of cross examination and no material contradiction has surfaced in their cross examination.
38. Before concluding, it is necessary to discuss one of the charges for which the accused is being prosecuted. Besides the charges of possessing the contraband, the accused is also facing prosecution u/s 25 of NDPS Act, for using his Hyundai EON car in transporting the contraband. The provisions of section 25 reads as follows: Punishment for allowing premises, etc., to be used for commission of an offence .Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence.
39. It is clear from the perusal of the provision of Sec 25 itself that the FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 34 of 35 owner of a vehicle cannot be prosecuted under this provision for self use of the vehicle however, he can be prosecuted and punished if he permits some other person to use the vehicle for commission of any offence punishable under NDPS Act. In the instant case, the accused is the owner of the EON car which he himself used for transportation of the contraband. Thus, keeping in view of these facts, the accused is liable to be acquitted for the charges u/s 25 NDPS Act. Accordingly, he is acquitted of the charges u/s 25 of NDSP Act.
40. As such, keeping in view of the aforesaid discussions, it is held that prosecution has established beyond reasonable doubt that ganja weighing 54.450 Kg was recovered from the possession of the accused. The quantity of ganja recovered from the accused is a commercial quantity which falls u/s 20 (b)(ii)(C) NDPS Act. Accordingly, accused is held guilty for the offence punishable under Section 20 (b)(ii)(C) NDPS Act, for possession of the 54.450 Kg ganja.
Digitally signed by AJAY AJAY GUPTA
Location: Delhi
GUPTA Date: 2018.04.07
16:08:42 +0530
(Ajay Gupta)
ASJ02/Special Judge (NDPS)
KKD/East/Delhi
Announced in open
court on 7th April 2018
FIR No.235/12 State vs Shambhu Kumar Sahni @ Ajay Kumar U/s 20/25 NDPS PS Crime Branch 35 of 35