Delhi District Court
The Prosecution Has Filed The Present ... vs Unknown on 15 July, 2014
1
IN THE COURT OF MS SHAIL JAIN: SPECIAL JUDGE:
NDPS: 02: CENTRAL DISTRICT: TIS HAZARI :
DELHI
SC NO. 59/08
STATE
versus
1. Yashpal s/o Shri Om Parkash
R/o Jeewan Vihar, Gali No.5, Dewru Road
Sonipat, Haryana.
2. Satbir Singh s/o Om Parkash
r/o Village & PO Jatheri
District Sonipat, Haryana.
3. Subhash s/o Ram Singh
R/o Village Rabhrya, Tehsil Gohana
Sonepat, Haryana.
FIR No. : 14/06
Offence U/S : 20/29 NDPS Act
Police Station : Kotwali
DATE OF INSTITUTION: 24.03.2006
DATE OF JUDGMENT:15.07.2014
JUDGMENT
1. The prosecution has filed the present case against accused persons with the allegations that on 07.01.06, accused Satbir was found in possession of 1.7kg of Charas S.C.No. 59/08 2 in the car parked near car parking, upper Subhash Marg, outside old Lajpat Rai Market, Delhi. Accused Yashpal and accused Subhash have been alleged to have conspired to plant the above said contraband i.e 1.7kg of Charas on accused Satbir in order to implicate him under the provision of NDPS Act. Accused Satbeer was charged under section 21 NDPS Act. Accused Yashpal and Subhash were charged for the offence under section 20 read with section 29 NDPS Act.
2. It is the case of the prosecution that accused Satbir and accused Yashpal are stepbrothers and accused Subhash is the relative of the accused Yashpal. Accused Subhash and accused Yashpal, considering the property dispute pending between accused Yashpal and accused Satbeer, conspired to implicate accused Satbeer in case under NDPS Act in order to take revenge of the complaint filed by the wife of accused Satbir against accused Yashpal. It is further the case of the prosecution that in order to carry out conspiracy accused subhash met accused Satbir as passenger and S.C.No. 59/08 3 came from Sonipat in the vehicle bearing no. HR10F0846 (although mentioned HR10H0846 in charge, but there is no dispute regarding identify of vehicle) of the Satbir along with wife and daughter and asked him to wait in the parking near old Lajpat Rai Market, there accused Yashpal handed over cardboard box gift wrapped, containing 1.7kg of Charas, to accused Subhash who inturn placed the same in the car of the accused Satbeer. Telephonic information was received in PS Kotwali about the presence of said contraband in the vehicle. On receiving the said information vide DD 30, police team was sent to the parking where accused Satbir was found present near the taxi and above said contraband was recovered from the back seat of the vehicle.
3. The chargesheet was filed against accused persons. Accused Satbeer was charged under section 21 NDPS Act, although, it should have been Section 20 NDPS Act, as the contraband recovered was Charas. Accused Yashpal and Subhash were charged for the offence under section 20 read S.C.No. 59/08 4 with section 29 NDPS Act to which accused persons pleaded not guilty and claimed trial.
4. Prosecution has examined 40 witnesses in order to prove the case against accused persons. All the witnesses are proving different facts and stage of investigation, hence, as per the stage, I will discuss the evidence led by the prosecution.
(I) Recovery of contraband
5. It is proved on record by the prosecution that on 07.01.2006 vide DD no 30, Ex.PW3/A, information was received in PP Red Fort about the presence of contraband available in vehicle no. HR10F0846 which is proved by PW1 Ct NavalKishore. PW2 Ct Mukesh has proved the report u/s 57 NDPS Act. Entry in register no. 19 is Ex.PW2/A and report is Ex.PW2/B. PW3 HC Jagdish Chand was posted as MHCM at PS Kotwali. He has proved that on 07.01.2006, seven pulandas were given to him for deposition by SHO of PS Kotwali, same were deposited vide entry Ex.PW3/A. On 23.02.2006 sample pulandas were sent S.C.No. 59/08 5 to FSL through Ct Narender and on 11.04.2006 result was received from FSL and was handed over to SI Jai Bhagwan/IO of the case. PW4 Ct Narender has corroborated the testimony of PW3 by proving that he took the sample pulanda to FSL on 23.02.2006. PW10 ACP Amarjeet, who was working as SHO at PS Kotwali on 07.01.2006, he has proved that Ct Jai Parkash had handed over 7 pulandas, FSL form and seizure memo on 07.01.2006 to him and after taking FIR No. from the duty officer, he has mentioned the FIR No. on pulandas and affixed his seal and deposited the pulandas along with documents with MHCM. PW11 HC Satbir, PW28 Ct Jai Parkash along with PW12 Inspector Khushal Singh had gone to investigate the information received vide DD no 30. These three witnesses have given in detail the procedure adopted by them for recovery of contraband from the van in question. The notice u/s 57 NDPS Act given to the accused is Ex.PW12/A, reply given to the notice is Ex.PW12/B, seizure memo of contraband is Ex.PW12/C, maruti van was seized vide S.C.No. 59/08 6 seizure memo Ex.PW12/D. Thereafter PW12 Inspector Khushal Singh had prepared rukka which is Ex.PW12/E and sent the same through Ct Jai Parkash for registration of FIR and deposition of pulandas. PW13 Ct Naval Kishore has proved the original DD no 13(this witness is repeat witness as he has already been examined as PW1). PW22 ASI Nadeem Akhtar has registered the FIR Ex.PW22/E and has also proved the other relevant DD entries ie DD no 25 A, DD no 27 A and DD no. 29 A and proved the copies of the same as Ex.PW22/A to Ex.PW22/C respectively. (II) Purchase of mobile Number/Phone
6. In order to prove the purchase of Mobile no. 9813417563 in the wrong name and on wrong documents, prosecution has examined PW6, PW7, PW8, PW9, PW15 to PW17, PW20, PW23, PW26, PW27, PW29 and PW30.
7. PW9 HC Rambir Singh has proved that on 10.01.2006 he collected the information regarding mobile phone no. 9813417563, collected the CDR of the same along with voter I card of applicant and seized the same vide memo S.C.No. 59/08 7 Ex.PW9/A. The call detail record of mobile phone no. 9813417563 are proved by PW27 Israr Babu.
8. PW6 Sh Ashok Kumar and PW7 Anju Devi, both of them have stated that in November, 2005, they have applied for LIC policy and have given their election I card to their agent for the purpose of identification.
9. PW8 Kuldeep Singh is LIC agent. He has admitted that he has issued LIC policies in favour of PW6 Ashok Kumar and PW7 Anju Devi. He had also deposed that he had sent the identification documents ie election I card of PW7 to the Nursing Home of PW23 Dr Satyawati Sharma for medical examination of witnesses.
10. PW16 Roshni Devi is also examined in this respect. She has proved that she has also applied for LIC policy and has given her voter I card for the purpose of identification.
11. PW15 Jasbeer Singh has stated that he was the LIC agent through whom LIC policy was issued in the name of Smt Roshni Devi PW16. He has also proved that election I card of Roshni Devi was sent by him to the Nursing Home S.C.No. 59/08 8 of PW23 Dr Satyawati Sharma for medical examination of Smt Roshni Devi.
12. PW23 Dr Satyawati Sharma had stated that she was running Satya Om nursing Home at Sonipat where accused Yashpal was working as lab technician. She has also proved that Smt Anju Devi, PW7 and Smt Roshni Devi, PW16 were medically examined in her hospital on 24.11.2005. The certificate given by her in this regard is Ex.PW23/A.
13. PW29 S K Saini, Senior Branch Manager, LIC has proved that LIC policy was issued in the name of Smt Anju and Sh Ashok as well as in the name of Smt Roshni Devi. LIC policy in favour of Sh Ashok as well as Anju were exhibited as Ex.PW29/A collectively, LIC policy of Smt Roshni Devi is Ex.PW29/C, copy of election I card of Smt Anju Devi is Ex.PW29/B and that of election I card of Smt Roshni Devi is Ex.PW29/D. It is also stated by PW29 S. K. Saini that both Smt Anju Devi and Smt Roshni Devi were medically examined by Dr Satyawati Sharma on 24.11.2005.
14. PW30 Karam Dahiya, Election Kanungo had proved S.C.No. 59/08 9 that Smt Anju Devi is registered in the voter list of Sonipat. He has proved the voter list as Ex.PW30/A and voter I card of Anju Devi is Ex.PW29/B whereas voter list of Roshni Devi is Ex.PW30/B and election I card of Smt Roshni Devi is Ex.PW29/D.
15. PW27 Israr Babu, Nodal Officer, Vodafone had proved that mobile no. 9813417563 was purchased in the name of Smt Anju Devi. PW27 has proved the Customer Application Form as Ex.PW27/A and CDR as Ex.PW27/B.
16. PW20 Sanjay from Hasija Communication has stated that on 25.11.2005 he has sold one Hutch SIM of phone no. 9813417563 to a boy who has given the voter I card in the name of his wife Anju Devi vide memo Ex.PW20/A.
17. PW26 Ravinder Kumar Batla has stated that he was having mobile shop in the name of City Communication. On 23.08.2004 Yashpal had purchased mobile phone make Nokia 2100. Copy of the bill is Ex.PW26/A. (III) In respect to the vehicle No. HR10F0846.
18. For proving this fact, prosecution has examined PW14 S.C.No. 59/08 10 Vijay, PW21 Sudhisht Kumar and PW25 Jagbir Singh. PW14 Vijay has not supported the case of the prosecution. PW21 Sudhist Prasad has stated that he is registered owner of maruti van No. HR10F 0846. He handed over the same to accused Satbir on 26.09.2003, though the same has not been transferred in the name of accused Satbir but the same was being used by accused Satbir. Maruti van was exhibited as Ex.P9.
19. PW25 Jagbeer Singh, Record Clerk from transport authority has proved that vehicle no HR10F 0846 was registered in the name of PW29 Sudhist Persad. (IV) On the point of investigation:
20. PW5 Ct Jitender, PW11 HC Satbir Singh, PW19 HC Deepak, PW36 ASI Jai Ram, PW37 HC Praveen along with PW40 Inspector Jai Bhagwan were the members of the investigating team.
(V) Other Phone No
21. PW24 Rakesh Kumar, PW33 Sunil s/o Randhir Singh , PW35 Ram Kumar are the relatives of accused Subhash. S.C.No. 59/08 11 PW38 Amit Taneja and PW39 Sunil s/o Sh Shyam Bahadur are formal witnesses who have proved that from their PCOs, call was made on mobile phone no. 9812143067.
22. PW31 Deepak Kumar, Nodal Officer of Idea has proved that mobile phone no 9812143067 was issued in the name of accused Satbir. The Customer Application Form is Ex.PW31/A, copy of driving license is Ex.PW31/B and CDR of that mobile phone is Ex.PW31/C.
23. PW32 Ravinder Kumar, Sub Divisional Engineer, BSNL has proved that mobile phone no. 9416264325 was in the name of accused Yashpal. Customer Application Form is Ex.PW32/A, and photocopy of election I card is Ex.PW32/B. The phone was closed on 07.03.2008 vide letter Ex.PW32/C.
24. Thereafter prosecution evidence was closed.
25. Statement of accused persons Yashpal, Satbir and Subhash were recorded u/s 313 CrPC wherein the entire incriminating evidence has been put forth and explained to the accused to which they pleaded innocence and false implication. Accused Subhash had stated that he wants to S.C.No. 59/08 12 lead the defence evidence but no witness was examined by him and after availing opportunity for defence evidence, he gave the statement and Defence evidence was closed. Other two accused have stated that they do not want to lead any evidence in defence.
26. I have heard arguments from Ld Additional P.P and Sh C L Gupta, Ld counsel for accused Yashpal, Sh Sanjay Suri, Ld counsel for accused Subhash and Sh Ved Pal, Ld counsel for accused Satbir.
27. It is argued on behalf of accused Satbir by Ld counsel Sh Ved Pal that mother of accused Satbir died in the year 1978 and he started living with his grand mother. Father of accused Satbir remarried and accused Yashpal is his step brother. The dispute arose between accused Yashpal and accused Satbir in respect to the properties and because of enmity and property dispute, accused Yashpal had conspired with accused Subhash who is relative of accused Yashpal to implicate the accused Satbir in false case. It is also argued by Ld counsel for accused Satbir that SIM for S.C.No. 59/08 13 mobile phone no. 9813417563 which was issued in the name of Anju Devi had been used in both the mobile numbers recovered from accused Yashpal which proves that there was a conspiracy between accused Yashpal and accused Subhash. It was also argued on behalf of accused Satbir that SIM for mobile phone no. 9813417563 was obtained by accused Yashpal on forged documents as front page of voter I card belongs to Smt Anju Devi and back of that I D card was the photocopy of election I card of Smt Roshni Devi, as accused Yashpal was working in the Nursing Home of Dr Satyawati Sharma, he had the opportunity and means to get the photocopy in order to procure the SIM on forged documents. It is also submitted by Ld counsel for accused Satbir that he is innocent and has been falsely implicated in the present case.
28. On behalf of the accused Subhash, Sh Sanjay Suri, Ld counsel had argued the matter. It is argued by Ld counsel on behalf of accused Subhash that there is no conspiracy proved between accused Subhash and accused Yashpal. S.C.No. 59/08 14 PW14 Vijay who was allegedly examined by the prosecution to prove the conspiracy angle has not supported the case of the prosecution and has not identified the accused Subhash. Therefore, there is nothing material on record to implicate the accused Subhash in the present case. Hence it is prayed by Ld counsel for accused Subhash that he be acquitted.
29. On behalf of accused Yashpal, Sh C L Gupta, Ld counsel has argued the matter. It is argued by Ld counsel for accused Yashpal that contraband was recovered from the possession of accused Satbir, but he was let off by the police on the ground, that, he was innocent and was not aware of the presence of the contraband. Though mere possession of contraband is punishable under the provisions of NDPS Act. This shows that police in connivance with accused Satbir had falsely implicated the accused Yashpal in this case. Accused Yashpal is the step brother of accused Satbir, and accused Subhash is brother in law of maternal uncle of accused Yashpal. All the accused S.C.No. 59/08 15 are relative, therefore, there is every likelihood of these people being in communication with each other telephonically, as such, this fact cannot be read against the accused persons. As regards conspiracy, it was argued by Ld counsel for accused Yashpal that prosecution has not been able to prove conspiracy and as the prosecution has not taken the opinion of handwriting expert regarding the person who has applied for mobile phone no. 9813417563, which was allegedly procured on the forged identification documents. The prosecution has failed to prove the conspiracy theory. It was also argued by Ld counsel for accused Yashpal that as per the case of the prosecution, accused Subhash had hired taxi of accused Satbir but accused Satbir sent another driver ie PW14, but PW14 Vijay has not supported the case of the prosecution and has not identified accused Subhash to be the passenger on that date. It was further argued by Ld counsel that the call received on 07.01.2006 on the phone of accused Satbir are from PCO as is stated by PW38 and PW39 and none of the S.C.No. 59/08 16 call was made from mobile phone no. of the accused Yashpal or accused Subhash on the phone of accused Satbir. It was also argued that as per the settled preposition of law, possessor is deemed to be the owner and since accused Satbir was found in possession of contraband, he should have been arrested by police at that time and mere fact that he was not arrested and left by the police shows the case to be a false case. It is also argued by ld counsel for accused Yashpal that it is the case of the prosecution that accused Subhash procured charas from Kulsi village from person namely Taqdeer. But during investigation, when police reached there, he had reportedly expired before the raid of the police. No document has been placed or proved on record by the police to show the death of accused Taqdeer, this shows that the present case is false case.
30. On the other hand Ld Additional P.P had argued that case has been proved by the prosecution against all three accused persons. It is also prayed by Ld Additional P.P that though charge in this case has been framed against accused S.C.No. 59/08 17 Satbir u/s 21 NDPS Act but it should be read as section 20 NDPS Act as contraband recovered from the possession of accused Satbir was charas which is covered under the provision of section 20 NDPS Act.
31. As regards the possession of contraband, it was stated by Ld Additional P.P that recovery has been proved by the prosecution witnesses ie PW1 to 4, PW10 to 13 and PW28 and has also not been disputed by any of the accused persons. Thus, accused Satbir should be convicted u/s 20 NDPS Act.
32. As regards accused Yashpal and Subhash, it was argued by Ld Additional P.P that accused Yashpal had procured the mobile phone no. 9813417563 on the forged documents and SIM of mobile phone no. 9813417563 was used in both mobile phones recovered from his possession as is clear from the document Ex.PW27/B, ie CDR of phone no. 9813417563, hence it connects accused Yashpal and accused Subhash with phone no. 9813417563. Accused Yashpal and accused Subhash were having frequent S.C.No. 59/08 18 communication with each other. Two mobile phones make Nokia 2100 and Nokia 3315 were recovered from the possession of accused Yashpal. Further, it has been proved by the prosecution witnesses that PW7 Smt Anju Devi and PW16 Smt Roshni Devi had given their identification documents papers for medical examination in Nursing Home of PW23 Dr Satyawati Sharma where accused Yashpal was working as lab technician, therefore, he had the opportunity to forge the documents and procure phone no. 9813417563. It is therefore submitted by Ld Additional P.P that prosecution has proved its case against all accused beyond reasonable doubt and they should be convicted.
33. I have considered the arguments advanced by ld counsel for the parties, evidence and the material on record.
34. The case of the prosecution is that accused Yashpal and accused Subhash have conspired against accused Satbir to implicate him in false case on account of enmity and S.C.No. 59/08 19 property disputes pending between accused Yashpal and accused Satbir. Admittedly accused Yashpal and accused Satbir are the step brothers. It is also admitted case of accused Yashpal that accused Subhash is brother in law of his maternal uncle. Thus, all accused persons are related to each other.
35. This is a peculiar case, where one accused was found in possession of charas, contraband material and other two accused persons have been the accused of conspiring to place the contraband, charas in the van of the accused Satbir in order to falsely implicate him. As regards the possession of charas and recovery of charas from the vehicle in question, there is neither any challenge raised by the accused persons nor accused Satbir has tried to controvert the recovery. The only claim and defence taken by accused Satbir is that accused Subhash had come as passenger in his vehicle from Sonipat and while in the market he had brought this card board box, gift wrapped and placed it in the vehicle. Accused Satbir has accepted S.C.No. 59/08 20 the recovery of charas from the vehicle but has claimed the charas belonging to accused Subhash. At this stage, it is important to see the conspiracy theory which is taken by the prosecution as well as supported by accused Satbir. If the prosecution is able to prove the theory of conspiracy against accused Yashpal and accused Subhash, accused Satbir will be able to prove his defence and there should be no case against accused Satbir.
36. In order to prove the conspiracy, prosecution has examined as many as 40 witness, who have proved different facts in the present case. Entire investigation of this case revolves around the mobile phone no. 9813417563 as this is the mobile no. which was given by accused Satbir to police by telling them that this mobile phone no. 9813417563 belonged to the passenger who had hired him to come from Sonipat to Delhi. Presence of accused Satbir in Delhi on 07.01.2006 is not denied. It is also the case of the prosecution that at about 4.45 p.m, DD no 30 Ex.PW3/A was received in PP Red Fort stating that S.C.No. 59/08 21 contraband is available in van no. HR10F0846. When police reached Lajpat Rai Market , police recovered gift wrapped parcel containing 1.7 kg charas and found accused Satbir present near the van no. HR10F0846 who informed the police that this gift packet belongs to the person who has hired him from Sonipat. At that time accused Satbir provided telephone no. 9813417563 to the police as the phone no. of said passenger. Accused Satbir was allowed to go without arrest by the police.
37. It is proved by PW9 HC Rambir Singh that he collected the information about the mobile phone no. 9813417563. the CDR and documents were seized vide memo Ex.PW9/A. From the identification documents filed along with the Customer Application Form, police came to know that front portion of election I card was in the name of Smt Anju Devi and the back portion was in the name of Smt Roshni Devi. Both PW7 Smt Anju Devi and PW16 Roshni Devi had proved that in order to take LIC policy, they have given the photocopies of their election I card to their agents ie PW8 S.C.No. 59/08 22 Sh Kuldeep Singh and PW15 Sh Jasbeer Singh respectively. Both PW8 Shri Kuldeep Singh and PW15 Jasbeer Singh have corroborated the testimonies of PW7 and PW16 and had further stated that PW7 Smt Anju Devi and PW16 Smt Roshni Devi were medically examined in Satyaom Hospital where they have sent their identification documents. The factum of PW7 and PW16 being medically examined in Satya Om Hospital has been proved by PW23 Dr Satyawati Sharma. She has also stated that accused Yashpal was working as Lab Technician there.
38. It was argued by Ld counsel for accused Yashpal that since the police has not taken handwriting of accused Yashpal and Anju Devi in procuring the mobile phone no. 9813417563, therefore, it cannot be said that said mobile no. was taken by accused Yashpal and this fact cannot be read in evidence against him. At this stage, it is important to note that at the time of cross examination of PW40 Inspector Jai Bhagwan/IO of the case , this question was specifically put to the witness by Ld counsel for accused S.C.No. 59/08 23 Yashpal but was disallowed by Ld Presiding Officer at that time as being irrelevant. Despite that, this question is being agitated again by Ld defence counsel. Once it is specifically stated by PW7 Smt Anju Devi that she has not applied for mobile phone no. in the year 2005, there was no necessity of comparing her handwriting with that of accused Yashpal. Even otherwise, it is not necessary that a person will apply in his/her own handwriting for obtaining the mobile no. hence, this argument of Ld counsel for accused Yashpal is not a valid argument.
39. From the possession of accused Yashpal, two mobile phones Ex.P1 Nokia 2100 and Ex.P2 Nokia 3315 were recovered. Mobile phone make Nokia 2100 was having IMEI No. 353400006688324 and mobile phone make Nokia 3315 was having EMEI no. 352501003530749. The call detail record of mobile phone no. 9813417563 proved by PW27, Sh Israr Babu as Ex.PW27/B, clearly proves that this mobile phone no. 9813417563 was used in both mobile phone Nokia 2100 and Nokia 3315. From this mobile phone no. S.C.No. 59/08 24 9813417563, calls were made to phone no. of the accused Satbeer i.e. 9812143067 using this mobile phone no. 9813417563 in both mobile phone make Nokia 2100 and Nokia 3315. It is also clear from the call detail record that from this mobile phone no. 9813417563, being used in phone make Nokia 2100 and Nokia 3315, calls were made to PW24 Rakesh Kumar on his mobile phone no. 9213478212. It has been stated by PW24 Rakesh Kumar in his examination in chief that On 07.01.2006 he received call from accused Subhash who stated that he was coming to Delhi on that date, accused Subhash Kumar is cousin of his wife and accused Subhash used to call him on his mobile phone no. 9213478212 from mobile phone no. 9813417563. PW24 Rakesh Kumar has not been cross examined by any of the accused persons. Hence it has been proved by the testimony of PW24 Rakesh Kumar that accused Subhash was using mobile phone no. 9813417563 and this mobile phone no. was being used in both the mobile phone make Nokia 2100 as well as in Nokia 3315 for S.C.No. 59/08 25 calling by accused Subhash. The fact that these two mobile phones were recovered from the possession of accused Yashpal proves the conspiracy between accused Yashpal and accused Subhash. Further, PW26 Ravinder Kumar had also proved the sale of mobile Nokia 2100, with IMEI No 353400006688324 to accused Yashpal vide bill Ex.PW26/A.
40. It is common knowledge that conspiracy is hatched in secret and the facts of conspiracy can only be determined by circumstantial evidence, there can be no direct evidence to prove the 'factum of conspiracy' between accused persons. The rivalry between accused Yashpal and accused Satbir is admitted as there are litigations pending between the families of accused Satbir and accused Yashpal. Admittedly, wife of accused Satbir has filed a case against accused Yashpal, therefore, accused Yashpal had motive to make false allegations against accused Satbir to implicate him in a false case.
41. In order to prove the conspiracy, it is essential to prove the motive, circumstances, capacity of accused persons to S.C.No. 59/08 26 conspire and the opportunity to give effect to the conspiracy.
42. In the present case, it has been categorically proved by testimonies of PW24 Rakesh Kumar, PW40 Inspector Jai Bhagwan (IO), PW7 Smt Anju Devi, PW16 Smt Roshni Devi and PW23 Dr Satyawati Sharma that photocopies of election I card of PW7 Anju Devi and PW16 Roshni Devi were sent to Satya Om Hospital, run by PW23 Dr Satyawati Sharma , for their medical examination in order to obtain the LIC policy. All these facts have been proved by the prosecution beyond reasonable doubt that PW7 Anju Devi and PW16 Smt Roshni Devi have applied for LIC policy through their agents. PW8 Kuldeep Singh and PW15 Jasbeer Singh have corroborated their testimonies. PW23 Dr Satyawati Sharma was running Nursing Home to carry out medical examination is proved by PW29 Sh S K Saini and the fact that accused Yashpal was working as lab technician there in Nursing Home of PW23 Dr Satyawati Sharma is proved by PW23 herself. Though PW23 Dr S.C.No. 59/08 27 Satyawati Sharma had specifically stated that she had certified that accused Yashpal was working in his hospital as lab technician but she was not cross examined on this point. Nor any suggestion was given to her that accused Yashpal was not working in her hospital, so that it could have been proved by ld defence counsel that accused Yashpal had no opportunity to obtain the mobile phone no. 9813417563 on forged documents.
43. The factum of purchase of mobile phone make Nokia 2100 by accused Yashpal has also been proved by PW26 Ravinder Kumar Batla, who has also not been cross examined by any of the accused persons. Therefore, this fact is admitted by accused Yashpal that he had purchased mobile phone Nokia 2100 having IMEI 353400006688324. Thus, this fact is proved by prosecution beyond reasonable doubt that mobile phone Nokia 2100 was purchased by accused Yashpal, in this phone, mobile no. 9813417563 was being used which is proved by PW27 Israr Babu vide Ex.PW27/B. Thus, factum of procuring the mobile phone S.C.No. 59/08 28 and mobile phone no. by accused Yashpal is proved beyond reasonable doubt by the prosecution.
44. Admittedly, accused Yashpal and accused Subhash are relative. PW24 Rakesh Kumar has proved that this mobile phone no. 9813417563 was being used by accused Subhash. It is also proved by PW24 Rakesh Kumar that on 07.01.2006 Subhash had come to Delhi. Even on that point PW24 Rakesh Kumar was not cross examined, hence this fact has also been proved against accused Subhash. PW35 Ram Kumar has stated in his examination in chief that accused Subhash used to call him on his land line no. 0130 2415447 through his mobile phone no. 9255182848. This witness was also not cross examined by Ld defence counsel. PW24 Rakesh Kumar has also stated in his evidence that accused Subhash was having mobile phone no. 9255182848 along with mobile phone no. 9813417563 and he used to call him from both mobile phone numbers. The call detail records of mobile phone no. 9255182848 in the name of accused Subhash clearly proves that this mobile phone no. S.C.No. 59/08 29 was continuously in communication with accused Yashpal on his mobile phone no. 9255498284 and also on mobile phone no. 9213478212 of PW24 .
45. Thus, prosecution has clearly proved by testimonies of PW24 Rakesh Kumar and PW35 Ram Kumar that accused Subhash was also having mobile phone no. 9255182848, obtained in the name of PW33 Sunil who has stated that accused Subhash is his maternal uncle. This witness was declared hostile by Ld Additional P.P. In cross examination it was specifically pointed out that in call detail record of this mobile phone mark XZ and mark XZ1 , it is clear that this phone was never used by PW33 as the location of the mobile was not of the residence of PW33 but of the Sonipat, that of the accused Subhash. Further, this fact has been corroborated by the testimonies of PW24 Rakesh Kumar and PW35 Ram Kumar that this mobile phone no. 9255182848 was being used by accused Subhash, along with phone no. 9813417563.
46. From the call detail record of all the telephone no. i.e. S.C.No. 59/08 30 9813417563 and 9812143067 of accused Satbeer, mobile phone no. 9255182848 of accused Subhash, mobile phone no. 9416264325 of accused Yashpal, it is clear that on 07.01.2006 there were repeated telephonic communication between PW24 Rakesh Kumar, on mobile no. 9213478212, and accused Subhash, mobile phone no. 9255182848 from 11.56 a.m to 15.30 p.m, tower location chart shows that location of phone no. 9255182848, ie location of accused Subhash was near Bhagirath Palace and Jama Masjid whereas location of phone of PW24 Ram Kumar was near Pahar Ganj and Azad Market between this time. This shows that accused Subhash was present in Delhi on 07.01.2006 and was also present in the vicinity of spot from 11.56 am to 15.30 p.m.
47. It has also been proved by prosecution that PW19 HC Deepak had specifically stated that accused Yashpal had pointed out the place ie shop where accused Yashpal had handed over the 'gift packet' containing contraband to accused Subhash vide memo Ex.PW19/A. PW19 has also S.C.No. 59/08 31 not been cross examined by Ld defence counsel on behalf of accused Yashpal or accused Subhash on this point. Thus, this statement of PW19 stood unchallenged and unrebutted. This fact is also corroborated by the testimony of PW40 Inspector Jai Bhagwan/IO . PW40, IO was also not cross examined on this aspect and thus, it is proved by prosecution that accused Yashpal had handed over the gift packet containing charas to accused Subhash to place the same in the van of accused Satbir. This fact is neither challenged nor rebutted by accused persons, hence this fact is proved beyond reasonable doubt.
48. As regards the arguments of Ld defence counsel that the prosecution has not proved the "source of Charas" or procurement of same by either accused Yashpal or accused Subhash, I am of the opinion that even this argument of Ld defence counsel is not sustainable as PW19 had specifically stated that accused Subhash had pointed out the house of Ishwar Singh in front of which he had procured the charas from the person namely Taqdeer S.C.No. 59/08 32 for Rs.20,000/. PW19 was not cross examined on the point of procurement of charas from person Taqdeer for Rs. 20,000/. Neither any suggestion was given to PW19 in this respect. Therefore, this fact has been unchallenged and unrebutted by accused persons. Therefore, it can be clearly stated that prosecution has proved beyond reasonable doubt that charas was procured by accused Subhash from Taqdeer at Kulasi village for Rs.20,000/. This packet was handed over by accused Yashpal to accused Subhash at Delhi and accused Subhash had kept the packet in the van of accused Satbir. The conspiracy and connivance of accused Yashpal and accused Subhash had been proved by the call detail record of these accused persons and corroborated by the testimonies of PW24 and PW35.
49. Further, it was argued by Ld counsel for accused persons that as per the case of the prosecution, passenger had come with his wife and daughter, therefore, prosecution should have examined the wife and daughter of accused Subhash or should have get the TIP of those persons effected in order to prove their S.C.No. 59/08 33 case, I am of the opinion that since there was no allegations against the wife of passenger ie accused Subhash, there was no need for the police/prosecution to examine her but if the defence wanted, they could have examined any other witness to prove that accused Subhash or accused Yashpal were not present in Delhi on 07.01.2006 or that accused Subhash had never come to Delhi on 07.01.2006 or prior to that. Since the defence has not examined any witness, therefore, the evidence led by the prosecution remains unrebutted and unchallenged. Testimonies of prosecution witnesses inspire confidence despite lengthy cross examination. Version of prosecution witnesses remain unshattered. Testimonies of all prosecution witnesses lead to only one conclusion that accused Yashpal and accused Subhash have conspired to frame accused Satbir in false and planted case, for which they have procured 1.7 kg charas from Taqdeer and had planted it on accused Satbir. Therefore, I am of the opinion that prosecution has been successful in proving the case against accused Yashpal and Subhash u/s 20 read with section 29 NDPS Act beyond reasonable doubt . As regards 'possession' of charas found in van of accused Satbeer , I am of S.C.No. 59/08 34 the opinion that said possession of charas from accused Satbir cannot be called to be "conscious" possession in the hands of the accused Satbir, therefore basic ingredients of section 20 NDPS Act are not proved against accused Satbir. Hence accused Satbir is acquitted of the charges u/s 21 NDPS Act (it should be u/s 20 NDPS Act). The charges against accused Yashpal and accused Subhash have been proved beyond reasonable doubt by the prosecution for procurement of charas and transportation of same to the Delhi from Sonipat and that they conspired against accused Satbir to implicate him in false case . Therefore, Holding the accused persons guilty, I convict accused Yashpal and accused Subhash u/s 20 read with section 29 NDPS Act. Accused Satbeer is acquitted. ANNOUNCED IN THE OPEN COURT ON 15.07.2014 (SHAIL JAIN ) SPECIAL JUDGE: NDPS02 CENTRAL DELHI S.C.No. 59/08