Delhi District Court
Fir No. 194/2013 State vs . Najruddin Etc. Page No.1 Of 44 on 22 September, 2018
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE02 (EAST) SPL. JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
New Case No. 541/2016
FIR No.194/2013
U/s 20/25/29 NDPS Act
PS Crime Branch
State
Versus
(1) Najruddin
S/o Sh.Noor Ahmed @ Mohd. Hasan
H.No.2776, Gali no.22
Rajeev Gandhi Nagar
Mustfabad, Delhi.
(2) Sanjay Kant @ Bhola
S/o Late Sh. Goverdhan
H.No.32 B Block, Gali No.20
Kaushik Enclave, Burari
Delhi
........... Accused
Date of Institution: 16.04.2014
Reserved for Judgment on : 23.08.2018
Judgment pronounced on: 22.09.2018
JUDGMENT
1. The prosecution case in brief is that on 17.11.2013 at about 8.00 p.m, a secret informer came to Narcotics Cell, Shakarpur and gave information that Najruddin r/o Mustfabad, Delhi and FIR No. 194/2013 State Vs. Najruddin etc. Page No.1 of 44 Sanjay @Bhola r/o Burari,Delhi who used to bring ganja from Orissa and supply the same in Delhi, would come with ganja from Ballabhgarh, Harayana in vehicle no. DL 1 LM 6602 (Tata) of white colour and would pass through Pushta Road, Geeta Colony for going to Khajuri Khas and if nakabandi is made at footover bridge Lalita Park, they can be apprehended with vehicle. After satisfying himself SI Satyawan produced the secret informer before Insp. Vivek Pathak, who also interrogated the secret informer and after satisfying himself, gave information to ACP N&CP Sh. Zile Singh through telephone, who directed to conduct the raid. SI Satyawan recorded the information in DD no.10 and produced the same before Insp. Vivek Pathak for the compliance of section 42 NDPS Act. On the instructions of Inspector Vivek Pathak, a rading party was organized consisting of HC Abdul Hakim, Ct. Sohan, and Ct. Ram Dass who were also informed about the secret information. IO took the IO bag, field testing kit, electronic scale and spring weighing scale and at about 9.00 p.m vide DD no.11, all the members of the raiding party alongwith secret informer left the PS in a qualis car and reached at the spot at about 9.15 p.m. After coming out of PS Shakarpur, IO requested four passersby and four passengers at the Ramesh park bus stand and four passersby at the spot to join the raiding party but they all refused and left disclosing their genuine reasons. The vehicle was parked 30 meters ahead towards Geeta Colony. Raiding party was deputed at the spot. It is further the case of the prosecution that at about 9.55 p.m, one white FIR No. 194/2013 State Vs. Najruddin etc. Page No.2 of 44 colour TATA ACE bearing no. DL 1 LM 6602 was found coming from the side of Shakarpur and the secret informer identified the driver of the said vehicle as Najruddin and the person sitting besides driver seat was identified as Sanjay @ Bhola and after identification, secret informer left the spot. SI Satyawan gave signal to the said vehicle to stop but the driver did not stop the vehicle. SI Satyawan ran and sat in the government vehicle with staff and the said TATA ACE was stopped about 200 meters away. Both the persons sitting in the vehicle were apprehended at about 10 p.m. Introduction of raiding team was given. On enquiry, the name of the person sitting on driver seat came to be known as Najruddin and the name of the person sitting beside driver seat Sanjay@ Bhola. They were informed about the secret information and also they were explained about their legal rights. Notice u/s 50 NDPS was prepared and carbon copy of the same was served upon them. Accused were read over the notice and they were explained the meaning of Gazetted Officer and Magistrate. The reply of Najruddin was recorded by SI Satyawan as he was less literate and after recording, it was read over to him and he accepted the same as true and correct and signed in Hindi. The refusal of accused Sanjay @ Bhola was recorded on the notice by Sanjay @ Bhola himself and he signed the same. 45 rickshaw pullers were requested to join the investigation but they refused and left away after telling their genuine reasons. Both the accused persons were searched but no incriminating substance was recovered from them. Thereafter, IO took the search of TATA ACE FIR No. 194/2013 State Vs. Najruddin etc. Page No.3 of 44 no. DL 1 LM 6602. Backside door of the vehicle was opened and some weighty plastic kattas were found loaded. All the kattas were brought down and counted. They were found 18 in numbers and the mouths of the same were found tied with a sutli. On checking the kattas, vegetative material i.e. green leaves with seeds was found. On smell as well as physical qualities, the same was found to be ganja. The same was weighed and it was found to be 324 Kgs. It is further the case of the prosecution that two samples of 500 grams each were drawn and two pullandas were prepared which were given Mark A and B. All the kattas were again tied with a sutli and they were given sr.no.1 to 18. Form FSL was filled. All the pullandas were sealed with the seal of 7APS NB DELHI and seal after use was handed over to HC Abdul Hakim. FSL form was also sealed with the same seal. Vehicle no. DL 1 LM 6602 was also seized. Rukka was prepared and it was handed over to Ct. Sohan Singh for the registration of the case and he got FIR no.194/13 recorded. Case property i.e. pullandas and TATA ACE were also taken to PS and handed over the same to SHO. SHO conducted the proceedings u/s 55 NDPS Act. Further investigation was conducted by ASI Rajveer Singh. He prepared the site plan and arrested the accused persons. Personal search of the accused persons were conducted and their disclosure statements were recorded. In the disclosure statements, accused disclosed the source of supply as Pradipta @ Tinku r/o Orissa and receiver of ganja were named as Nikki, Mukesh and Jarnail @ Kallu. The case property was FIR No. 194/2013 State Vs. Najruddin etc. Page No.4 of 44 deposited in the malkhana. Both the accused were produced before Insp. Vivek Pathak. Reports u/s 57 NDPS Act were prepared and sent to SHO for forwarding the same to senior police officials. Two days police remand was obtained. Bank account of Pradipta was searched. Accused Sanjay Kant got recovered two air tickets from Delhi to Bhubneshwar alongwith one visiting card on which Sunrow Cottage was written and he got recovered the same from his house at Burari. Source of supply could not be traced. Accused persons were remanded to JC. On 20.11.2013, case property was sent to FSL. Pending receipt of FSL result, chargesheet was prepared against the accused persons u/s 20 NDPS Act and they were sent to court for trial.
2. FSL result was filed in the court which confirmed that sample contained ganja. After compliance of section 207 Cr.P.C., charge u/s 20(b)(ii)(C) & 29 of NDPS Act was framed against both the accused and separate charge u/s 25 NDPS Act was framed against accused Najruddin to which both the accused pleaded not guilty.
3. In order to prove its case, prosecution examined 11 witnesses. PW1 is HC Jag Narayan. He is the MHCM. He deposed that on 18/11/2013 Insp. Virender called him with register no.19. He went there where Inspector produced two cloth pullandas Mark A and B and 18 plastic kattas numbered 1 to 18, sealed with the seal of FIR No. 194/2013 State Vs. Najruddin etc. Page No.5 of 44 7APS NB DELHI and VSS, one FSL form sealed with the same seal and carbon copy of the seizure memo for depositing in the malkhana. He deposited the same vide sr no. 2005 Ex.PW1/A and SHO also lodged DD no.4. He further deposed that Ct. Sohan Lal also deposited one vehicle TATA ACE no.DL 1 LM 6602 vide entry no.2006. He further deposed that ASI Rajbir deposited the personal search articles of accused Sanjay Kant and Najruddin vide sr.no.2007. The copies of entries are Ex.PW1/B and Ex.PW1/C. He further deposed that on 21.11.2013 Mark A was sent to FSL vide RC no.372/21 Ex.PW1/D through HC OM Prakash and after depositing the case property, copy of receipt Ex.PW1/E was handed over to him.
4. PW2 is HC Dinesh Kumar. He is the duty officer. He deposed that Ct. Sohan Lal produced rukka before him sent by SI Satyawan on the basis of which he got recorded FIR no.194/13 Ex.PW2/A through Computer Operator. He also made endorsement Ex.PW2/B on rukka. He recorded Kayami DD no.3 Ex.PW2/C. He proved Copies of DD no.4 and 5 as E.PW2/D and Ex.PW2/E.
5. PW3 is HC Abdul Hakim, PW5 is Ct. Sohan Pal and PW11 Insp. Satyawan is the IO of this case. They are the witnesses of arrest and recovery. Their testimonies are more or less the same as stated in para '1' of the Judgment and therefore, are not being repeated for the sake of brevity.
FIR No. 194/2013 State Vs. Najruddin etc. Page No.6 of 44
6. PW4 is ASI Dinesh Kumar. He is the reader to ACP N&CP. He received copy of DD no.10 from Insp. Narcotic Cell and made entry vide diary register at Sr.No.3034. He put up the same before ACP. The copy of DD Ex.PW4/A is bearing the signature of ACP at point A. He further deposed that on 18.11.2013, two reports u/s 57 NDPS Act were received regarding seizure of 324 Kgs ganja and arrest of accused which were diarized at sr.no.3040 and 3041. He put up the same before ACP N&CP. The said reports are Ex.PW4/B and Ex.PW4/C and same are bearing the signature of ACP at point A. The copy of diary register is Ex.PW4/D, E and F.
7. PW6 is SI Rajveer Singh. He is the IInd IO. He deposed that Ct. Sohan Pal came to his office and handed over the copy of FIR and original rukka to him. He went to the spot after lodging DD no.3 Ex.PW6/A where SI Satyawan handed over the documents and custody of accused. He prepared the site plan Ex.PW6/B. He arrested accused Najruddin vide arrest memo Ex.PW3/I and conducted his personal search vide memo Ex.PW3/J. He deposed that from the personal search of accused Najruddin, copy of notice u/s 50 NDPS Act., one Driving licence and one purse of rexine containing some visiting cards and cash of Rs.850 were recovered. The disclosure statement of accused is Ex.PW3/M. He also arrested accused Sanjay Kant vide memo Ex.PW3/K, conducted his personal search Ex.PW3/L. From the personal search of accused FIR No. 194/2013 State Vs. Najruddin etc. Page No.7 of 44 Sanjay one copy of notice u/s 50 NDPS Act, one driving licence and one purse of rexine containing some visiting cards and cash of Rs.615/ were recovered. The disclosure statement of accused is Ex.PW3/N. He further deposed that jamatalashi articles of accused were deposited in the Malkhana and accused persons were produced before the SHO. DD no.17 Ex.PW6/C was lodged. Family members of accused were informed regarding their arrest. Accused were produced before the Court and PC remand was obtained. He further deposed that he prepared special u/s 57 NDPS Act and submitted the same before Insp. Vivek Pathak. The original report is Ex.PW4/C. He further deposed that on 19.11.13 during PC remand accused Sanjay Kant got recovered two air tickets of to and fro journey from Delhi to Bhubneshwar alongwith one visiting card, on which Sunrow Cottage was written, from his house at Burari which were seized vide memo Ex.PW3/O. Visiting card is Ex.PW3/P and tickets are Ex.PW3/Q and Ex.PW3/R. He tried to trace out the persons to whom the accused used to supply ganja but they could not be traced. He further deposed that exhibits were sent to FSL on 21.11.2013 vide RC No.372/21/13. Mobile number of source Pradeepta @ Tinka was found to have been issued on fake ID. He interrogated the owner of Sunrow Cottage namely Nimian Rout who told that accused used to visit his cottage. He obtained the FSL result Ex.PW6/D and placed on record. He further stated that vehicle no. TATA ACE DL 1 LM 6602 was found registered in the name of accused Najruddin. He identified the carbon copies of the notices FIR No. 194/2013 State Vs. Najruddin etc. Page No.8 of 44 given to accused. The carbon copies are Ex.P3 and Ex.P4.
8. PW7 is HC Om Prakash. He took the sample parcel to FSL Rohini vide RC no.372/21 and deposited there.
9. PW8 is Insp. Vivek Pathak. He deposed that on 17.11.2013 at about 8.15 p.m, SI Satyawan alongwith secret informer came to his office and informed that one Najrul in connivance with Sanjay @ Bhola, who indulged in sale and supply of ganja would go to Ballabhgarh and would pass by pushta road, Geeta Colony in vehicle no. TATA ACE DL1 CM 6602 and if nakabandi is made, they can be apprehended. He made enquiries form secret informer and after satisfying himself, informed ACP N&CP who issued directions for conducting the raid. He briefed SI Satyawan who lodged DD no.10 Ex.PW8/A and produced copy of the same before him, which he forwarded to ACP N&CP.He further deposed that SI Satyawan organized a raiding party comprising of himself, HC Abdul Hakim, Ct. Ram Dass and Ct. Sohan Pal and left the spot with relevant articles. He further deposed that on 18.11.2013 at about 1.45 p.m., ASI Rajbir Singh alongwith both the accused came to his office and he made enquiries from both the accused. SI Satyawan also produced report u/s 57 NDPS Act before him which he forwarded to ACP & N&CP.
10. PW9 is Insp. Virender Singh. He is the then SHO PS FIR No. 194/2013 State Vs. Najruddin etc. Page No.9 of 44 Crime Branch. He deposed that Ct. Sohan Lal produced 18 plastic sealed bags and two cloth parcels with the seal of 7APS NB Delhi alongwith FSL form and carbon cop of seizure memo on which he put his seal of VSS. After enquiry from duty officer, he mentioned FIR number on the parcels and documents. He called the MHCM with register no.19 and deposited the case property in the malkhana vide entry Ex.PW1/A. He lodged DD no.4 Ex.PW2/D.
11. PW10 is Harkishan. He appeared from the office of MLO, Rajpura Road. He produced the record of vehicle no.DL 1 LM 6602 which is in the name of accused Najruddin. The print out is Ex.PW10/A.
12. Statement of accused persons u/s 313 Cr.P.C were recorded wherein both the accused have stated that they are innocent. They have not committed any offence. They have been falsely implicated in this case. Nothing was recovered from their possession or at their instance. No disclosure statement was made by them to the police. All the documents were prepared in the office of Narcotics Cell and their signatures were taken there upon forcibly. Accused persons did not lead any defence evidence.
13. Arguments have been heard from the Ld. Addl. PP as also from the Ld.Counsel for accused. Ld. Addl.PP has argued that the recovery witnesses examined by the prosecution have proved the FIR No. 194/2013 State Vs. Najruddin etc. Page No.10 of 44 recovery of 324 Kgs of ganja from the possession of accused persons. All the relevant provisions of NDPS Act have been duly complied with. The witnesses have supported the prosecution case. FSL result confirms that the recovered substance was ganja. It is therefore, argued that the prosecution has been able to prove its case against the accused.
14. Ld. Counsels for both the accused have jointly submitted that there has not been due compliance of Section 42 and 50 NDPS Act and there has been delay in sending the exhibits to FSL. It is submitted that the secret information was not noted down on any paper and information was passed on only through telephone. Weighing scale was got issued on the same day but MHCM has not deposed anything in this respect nor shown entry in the register. No senior officer was informed about the apprehension of accused. It is further argued that it is very surprising that the weight of all the 18 bags was equal which is not possible. Ld. Counsels have further stated that there is no compliance of notice u/s 50 NDPS Act and they relied upon the case laws Rajesh Jagdamba Avasthi Vs. State of Goa AIR 2005 SC 1389, DRI Vs. Raj Kumar & Ors. 2011(3) JCC (Narcotics) 156. It is stated that rukka in the present case is in the handwriting of Ct. Satpal but no reason has been specified as to why it was not prepared by the IO of this case. It is stated that accused persons were not produced before FIR No. 194/2013 State Vs. Najruddin etc. Page No.11 of 44 SHO and thus, the provisions of Section 55 of NDPS Act have not been complied with. Ld. Counsel has also stated that there is difference in the nomenclature of seal used and the sealed sample produced before the seal which indicate that the seal was tampered with. It is also submitted that first IO conducted the investigation after registration of FIR and that is not permissible. Ld. Counsel further submitted that Ct. Ramdass and ASI Raghubir have not been cited as witnesses in this case. Family members of accused Sanjay Kant@ Bhola have not been made witness at the time of recovery of alleged air tickets and that no site plan was prepared. Ld. Counsel submits that the case property was being brought from Ballabhgarh and taken to Khajoori Khas and that there was no reason for the accused to take a long route to go to Khajoori Khas. It is also submitted that the place of apprehension of the accused persons is opposite Narcotic cell. It has also been argued that only two samples were drawn from 18 bags and that the procedure adopted by the IO is against the laid down law in the case of Basant Rai Vs. State. It is requested that the accused persons may kindly be acquitted.
15. PW3 HC Abdul Hakim, PW5 Ct. Sohan Pal and PW11 Insp. Satyawan are the three witnesses of recovery on which the prosecution case mainly rests. PW11 deposed that on 17.11.2013 at about 8.00 p.m. secret informer came to him and informed that FIR No. 194/2013 State Vs. Najruddin etc. Page No.12 of 44 Najruddin and Sanjay would bring ganja in a Tata Tempo no. DL 1LM 6602 from Ballabhgarh and the same was sent by Tinku and that they would pass through Pushta Road, Geeta Colony and would go to Khajoori Khas. The secret informer was produced before Insp. Vivek Pathak who informed ACP Sh Zile Singh telephonically, who asked them for conducting raid. DD No.10 Ex.PW4/A was lodged, raiding party was prepared and reached at the spot vide DD no.11 Ex.PW11/A. At about 9.55 p.m, one white colour TATA ACE was found coming from Shakarpur Chungi side and secret informer told that the person sitting on the driver seat is Nazruddin and adjacent to driver seat is Sanjay @ Bhola. PW11 gave signal to the driver to spot but he did not stop but it was stopped after chasing them for about 200 meters. Both the accused were apprehended. They were informed about the secret information and notice u/s 50 NDPS Act was served upon them. PW11 also informed about the legal rights to accused persons and they were given an option to be searched in the presence of Magistrate or a Gazetted Officer. But the accused persons refused. The notice u/s 50 NDPS Act are Ex.PW3/C and Ex.PW3/E and replies are Ex.PW3/D and Ex.PW3/F. He has further stated that door of the TATA ACE no. DL 1LM 6602 were opened and 18 white kattas were found and on checking the same, haare paate dar (flowering tops alongwith seeds) and beej, ghassnuma substance was found which on smell was found to be ganja. The said kattas were weighed and total weight came to be 324 Kgs. He has further deposed that some parts of ganja were taken from all the FIR No. 194/2013 State Vs. Najruddin etc. Page No.13 of 44 18 plastic kattas as a sample and two samples of 500 grams each were drawn. The samples were converted into pullandas and given Serial No. A and B and plastic kattas were also given serial no. 1 to 18 after tying with sutli. All the pullandas were sealed with the seal of 7APS NB DELHI. FSL form was filled and sealed with the same seal. Case property was seized vide memo Ex.PW3/G. TATA ACE vehicle was also seized vide memo Ex.PW3/H. Rukka Ex.PW11/B was prepared by PW11 and FIR was got registered through Ct. Sohan Pal who also took samples and remaining case property alongwith FSL form and carbon copy of seizure memo and handed over the same to SHO. Further investigation was conducted by ASI Rajveer Singh, who prepared the site plan and arrested the accused persons vide arrest memos Ex.PW3/I and Ex.PW3/K and conducted their personal search vide memo Ex.PW3/J and Ex.PW3/L. He deposed that in the personal search of accused Najruddin and Sanjay notices u/s 50 NDPS Act alongwith other articles were recovered. He recorded the disclosure statements Ex.PW3/M and N of the accused persons. Case property was deposited in the Makhana. Reports u/s 57 NDPS Act were prepared the sent to the senior police officials. He further deposed that on 19.11.2013, accused Sanjay took them to his house in Kaushik Enclave, Burari and got recovered one visiting card of Sun row Cottage and two indigo Air Ticket from Delhi to Bhuvneshwar which were seized vide memo Ex.PW3/O. PW3 HC Abdul Hakim and PW5 Ct. Sohan Pal have also deposed on similar lines as per the version of PW11 Insp. FIR No. 194/2013 State Vs. Najruddin etc. Page No.14 of 44 Satyawan.
16. Ld. Counsel has argued that there is no compliance of of Section 42 of NPDS Act in this case. It is submitted that the information was not noted on any paper and that the information was passed only through telephone.
17. The mandatory nature of the above requirement of law regarding recording of "Grounds of Belief" was explained in Karnail Singh Vs. State of Haryana VI (2009) 8 SCC 539 which is as under: "In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in Subsection (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the FIR No. 194/2013 State Vs. Najruddin etc. Page No.15 of 44 officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
FIR No. 194/2013 State Vs. Najruddin etc. Page No.16 of 44
(d) While total noncompliance of requirements of Subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or nonsending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above FIR No. 194/2013 State Vs. Najruddin etc. Page No.17 of 44 position got strengthened with the amendment to Section 42 by Act 9 of 2001."
18. PW11 Inspector Satyawan, has stated that on 17.11.2013, at about 8.00 p.m, secret informer came to him and informed that Najruddin r/o Mustafabad, Delhi and Sanjay @ Bhola r/o Burari, who used to procure ganja from Orissa from one Tinku and used to supply the same in Delhi at different places, would come to supply the same in TATA Tempo bearing no. DL 1 LM 6602 after loading the same from Ballabhgarh, Faridabad where the same has been sent by Tinku and they would pass through Pushta Road, Geeta Colony and would go to Khajuri Khas to supply the same to some one and if trap would be laid near Lalita Park, Footover bridge, they can be apprehended. He further deposed that he produced the secret informer before Insp. Vivek Pathak at about 8.15 p.m, in his office who also interrogated him and satisfied himself with the information and conveyed the same to ACP Zile Singh telephonically at his residence who instructed to conduct raid. He further deposed that he reduced the information into writing vide DD no.10 at 8.30 p.m, copy of DD is Ex.PW4/A and the same was produced before Insp. Vivek Pathak, who forwarded the same to ACP concerned. In cross examination, PW11 has stated that he did not note down the secret information in any other document except in the DD entry. He has not produced any DD prior to producing the informer before Insp. Vivek Pathak with regard to the receipt of FIR No. 194/2013 State Vs. Najruddin etc. Page No.18 of 44 secret information The contention of the Ld. Counsel is that the secret information was not recorded on any paper. However, PW11 has clearly stated that the secret information was recorded vide DD no.10. The said DD is Ex.PW4/A. Perusal of the said DD clearly show that secret information was recorded regarding bringing of Ganja by the accused persons in vehicle no. DL 1LM 6602. Secret informer was also produced before the then SHO Insp. Vivek Pathak. PW8 Insp. Vivek Pathak made enquiries from the secret informer and after satisfying himself, he informed ACP N&CP Zile Singh. He also deposed that SI Satyawan lodged DD no.10 regarding secret information at about 8.30 p.m and produced the copy of the same before him which he forwarded to ACP. The carbon copy of DD no.10 is Ex.PW8/A. The prosecution has examined PW4 ASI Dinesh Kumar from the office of ACP N&CP. He stated that he received DD no.10 on 18.1.2013 in the office of ACP which he diarized at sr.no.3034 and put up before ACP Zile Singh. He has brought the said Original DD no.10 which is Ex.Pw4/A. DD no.10 bears the signatures of ACP with date 18.11.2013. The copy of diary register showing entry for the receipt of DD no.10 is Ex.PW4/D. No question or suggestion has been put to PW8 or PW4 that they did not receive DD no.10 or that the same was not forwarded or put up before the ACP concerned. Record clearly indicates that DD no.10 regarding receipt of secret information was sent to the ACP office and then the said DD was produced before the court by the Reader of ACP and exhibited as FIR No. 194/2013 State Vs. Najruddin etc. Page No.19 of 44 Ex.PW4/A. Thus, it is clear that the secret information was recorded and copy thereof was sent to the senior police officers. Recording of DD no.10 and sending the copy thereof to the senior police officer is the sufficient compliance of Section 42 of NDPS Act.
19. Ld. Counsel argued that there is no due compliance of section 50 of NDPS Act in this case. It is now well settled that compliance of Section 50 of NDPS Act is mandatory in nature and thus, there exists an obligation to comply with the provisions and noncompliance thereof would entail an order of acquittal in a proceeding under NDPS Act. Section 50 categorically lays down that if the search is to be conducted by an Officer duly authorized under Section 42 and the search is to be conducted under the provisions of Section 41, 42 & 43, the concerned officer does owe a duty to intimate the person to be searched that if the latter so requires, he would be taken to the nearest Gazetted Officer/Magistrate for the purpose of having the search in their presence. But in the event of a situation otherwise, question of compliance with the safeguards and described under Section 50 of the Act would not arise. Coming to the facts of the present case, all the three recovery witnesses i.e. PW3, PW5 and PW11 have stated that accused persons were informed about their legal rights to be search in the presence of Gazetted Officer/Magistrate and carbon copy of the notice u/s 50 NDPS Act was served upon both the accused. Accused were also offered the search of the raiding party FIR No. 194/2013 State Vs. Najruddin etc. Page No.20 of 44 and official vehicle prior to giving their search. They were also explained the meaning of Gazetted officer and Magistrate. Both the accused refused for the offers made to them and their replies were written on the notices. The notices given to accused Najruddin is Ex.PW3/A and his reply is Ex.PW3/B and notice given to accused Sanjay @Bhola is Ex.PW3/C and his reply is Ex.PW3/D. In cross examination, PW11 has stated that he obtained the signature of the accused on the original notice u/s 50 NDPS Act in token of handing over the carbon copy of the notice. The accused had put his reply on the notice. The accused has put his signature twice. No suggestion has been put to PW11 during cross examination that he has not prepared or served the notice us/ 50 NDPS Act upon the accused persons. The oral evidence is in conformity with the documentary evidence i.e. original notice served to accused Najruddin Ex.PW3/A and notice served upon accused Sanjay Ex.PW3/C and their replies Ex.PW3/B and Ex.PW3/D. The carbon copies of the notices recovered in the personal search of both the accused have been produced and the same are Ex.P3 and Ex.P4. The notices reads that accused persons were informed that there was an information that they were going with ganja in vehicle no. DL 1LM 6602 and that the search of the vehicle was to be conducted. The notices further reads that accused persons have legal right that if they so wants, their search can be taken in the presence of Gazetted Officer or Magistrate or that arrangement for the same can be made. The notice further reads that accused have the legal right to take search FIR No. 194/2013 State Vs. Najruddin etc. Page No.21 of 44 of the raiding party and the police vehicle before their search. The contents of the notice are selfexplanatory. There is absolutely no contradiction in the evidence of the prosecution witnesses regarding service of notice u/s 50 NDPS Act or the information conveyed to the accused. No suggestion/question has been put to PW11 that notices were not served upon the accused persons. Such suggestions have been denied by PW3 HC Abdul Hakim and PW5 Ct. Sohan Pal. PW11 has stated that accused Nazruddin told that he is unable to read and write comfortably, hence, the contents of notice was read over to him and thereafter, he told that he did not want to be searched before Gazetted officer or Magistrate and that the reply to the notice was written by PW11. He also deposed that accused Sanjay gave reply in his handwriting on original notice u/s 50 NDPS Act. The notices have been witnessed by PW3 and PW5. The reply of the notices reads that accused persons have been read over and explained the notices. They have been explained the meaning of Gazetted Officer/Magistrate and after understanding the same, they chose not to get themselves searched before Gazetted Officer/Magistrate and also declined the offer of search of the members of the raiding party. They offered IO to take their search. Notice was served in Hindi and reply was also recorded in Hindi with signatures of accused underneath the reply. The case laws Gurjant Singh @ Janta Vs. State of Punjab, State of Rajastahan Vs. Jag Raj Singh @ Hansa and Rakesh @ Shanker Vs. State, FIR No. 194/2013 State Vs. Najruddin etc. Page No.22 of 44 relied upon by the Ld. Counsel with due respect are distinguishable and with due respect, are not applicable to the facts of the present case since all the requirements have been complied with. In my view, accused persons have been duly served with notices u/s 50 NDPS Act and thus, there is due compliance of Section 50 NDPS Act.
20. Ld. Counsel argued that there is no compliance of section 55 of NDPS Act in this case since PW1 did not testify that till samples and case property remained with him, same was not tampered with. He also submitted that accused persons were not produced before the SHO and stated that PW9 Insp. Virender Singh has clearly admitted in cross examination that accused persons were never produced before him. PW11 SI Satyawan stated that he prepared the rukka Ex.PW11/B and handed over the same to Ct. Sohan Pal for handing it over to Duty Officer for registration of FIR. He also handed over TATA ACE No.DL 1 CM 6602 alongwith 18 parcels with plastic kattas, two sealed samples, FSL form and copy of seizure memo to Ct.Sohan Pal with directions to hand over the case property to SHO and that the case property was taken to PS in TATA ACE vehicle driven by ASI Raghuvir in the supervision of Ct. Sohan Pal. PW5 Ct. Sohan Pal has deposed about handing over of the above case property to him. He handed over the case property to Insp. Virender Singh. PW5 Insp. Virender received the said parcels duly sealed with the seal of 7APS NB Delhi and he put his FIR No. 194/2013 State Vs. Najruddin etc. Page No.23 of 44 seal of VSS on the said parcels as well as form FSL.He deposited the parcels in malkhana. The case property was deposited with PW1 HC Jagnarayan in the malkhana vide entry no.2005. He has specifically stated that the parcels were sealed with the seal of 7APS NB DELHI and VSS. He deposed that the exhibits were sent to FSL through Ct. Om Prakash on 21.11.2013. The prosecution has examined Ct. Om Prakash as PW7 who took the exhibits to FSL vide RC no.372/21. The statements of both the PWs (PW1 and PW8) revealed that they have specifically stated in their examinationinchief that the exhibits were not tampered and seals were intact till the same remained in their possession. Further, no suggestion has been put either to PW1 or to PW7 by the Ld.Counsel that the case property was tampered with, till remained in their possession. Therefore, the case law titled Hannan Vs. State of NCT of Delhi, 2013 Law Suit (Delhi) 1566, relied upon by the Ld. Defence Counsel is not applicable to the present facts and circumstances of the case. Ld. Counsel has also argued that accused persons were not produced before the SHO after their arrest. Though PW9 Insp. Virender Singh has admitted in cross examination that accused persons were not produced before him, however, on perusal of the testimony of Insp. Vivek Pathak, who is of the equivalent rank and posted at Narcotics Cell, at the relevant time has specifically stated in his examinationinchief that on 18.11.2013, at about 1.45 a.m. ASI Rajbir Singh alongwith both the accused came FIR No. 194/2013 State Vs. Najruddin etc. Page No.24 of 44 to his office and he made enquiries from both the accused. No suggestion has been put to PW8 Insp. Vivek Pathak that accused persons were not produced before him. Thus, the submissions of Ld. Counsel has no merit specifically when PW1 as also PW7 have specifically stated that till the case property/samples remained in their possession, no one tampered with the same and PW8 Insp. Vivek has stated that the accused persons were produced before him after their arrest. PW9 Insp. Virender Singh has received the parcels alongwith samples, FSL form and carbon copy of seizure memo. He put his seal of VSS and then deposited the same with PW1. The samples were received at FSL with both the seals. Thus, there is sufficient compliance of Section 55 of NDPS Act in this case.
21. Ld.Counsel has stated that reader of ACP has stated that he has no personal knowledge and that he deposed on the basis of record and thus, there is no compliance of Section 57 of NDPS Act specifically when ACP concerned has not been examined. PW11 has categorically stated that he prepared report u/s 57 NDPS Act Ex.PW4/B regarding seizure of 324 Kgs ganja and produced before Insp. Vivek Pathak, who forwarded the same to ACP. PW6 SI Rajveer has also stated that he prepared report u/s 57 NDPS Act regarding arrest of the accused and submitted the same before Insp. Vivek Pathak. The said reports are Ex.PW4/B and Ex.PW4/C. Both the reports are available on file. The prosecution has produced PW4 ASI Dinesh, Reader to ACP N&CP. He received the reports u/s 57 FIR No. 194/2013 State Vs. Najruddin etc. Page No.25 of 44 NDPS Act on 18.11.2013 and diarized the same vide diary no. 3040 and 3041. He produced the same before ACP Zile Singh who signed at point 'A'. The copy of diary register is Ex.PW4/D. The said reports have been produced by PW4 from the office of ACP. Perusal of the same revealed that these bears the signatures of ACP N&CP at point 'A'. In the present case, PW4 was working in the office of ACP and he received the said reports and produced before the ACP after making necessary entries in diary register. He is the witness who received the reports and deposed accordingly. He may not have personal knowledge about the case but whatever, he received, he deposed about the same. Ld. Counsel stated that ACP has not been examined. In my view there was no need for the examination of ACP when his reader has been examined and specifically when reader (PW4) has stated in examinationinchief that he can identify the handwriting and signature of Sh Zile Singh, ACP as he had worked with him in due course of service. He identified the signature of ACP at point 'A' on both the reports. Thus, it is crystal clear that the reports u/s 57 NDPS Act were sent to the office of ACP and the same were received and seen by ACP. There is no delay in submission of the same. Thus, there is sufficient compliance of Section 57 of NDPS Act in this case.
22. Recovery has been assailed by the Ld. Counsel on the ground that no public witness was associated by the police at the time of arrest of accused and seizure of ganja. The present case FIR No. 194/2013 State Vs. Najruddin etc. Page No.26 of 44 solely based on the testimony of official witnesses. The court has to presume that official acts are performed in due course of law. It will not be correct approach to suspect the integrity of police officials. Their testimonies has to be appreciated like any other witness. However, it is rule of caution that Court should scrutinize the testimony of police officials with utmost care and caution to assure itself of its credibility. In case Law Munshi & Ors Vs. State 20(1981) DLT(SN) 26 it has been observed that public generally hesitate to associate with police therefore, the police has to take help of person known to them or the complainant. In case Natho Singh Vs. State, AIR 1973 SC 2763 it has been held that evidence of police officials cannot be discredited in the absence of the hostility to the accused. In case State Vs. M.M.Methew, AIR 1978 SC (1571) it was held that evidence of police officials cannot be branded as highly interested only on the ground that they are interested in the success of their case. In Appa Bhai Vs. State of Gujarat AIR 1988 SC 696 it has been held that civilized people are generally insensitive when a crime is committed in their presence. They keep themselves away from the court unless it is inevitable and they try to avoid to involve themselves. In Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Hon'ble Supreme Court held that it is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witness is not absolute. If the police officer is unable to join any public witness after FIR No. 194/2013 State Vs. Najruddin etc. Page No.27 of 44 genuine efforts, the recovery made by the police officer would not be vitiated. The Hon'ble Supreme Court held that in such circumstances, the Court will have to appreciate the relevant evidence to determine whether the evidence of a police officer is believable so as to place implicit reliance thereon. In the present case, after receipt of secret information at about 8.00 p.m, raiding party was constituted and raid was conducted and accused persons were apprehended at about 9.55 p.m with vehicle no. DL 1 LM 6602. The place of raid is Pushta Road, Shakarpur, near Lalita Park, foot over bridge. The said place is a busy road. PW11 has stated that he requested four public persons to join the raid at each places i.e. just near the PS Shakapur, Ramesh Park, bus stand and at the spot while disclosing the secret information to them but none joined and left the places without disclosing their identity and after showing their genuine grounds. He also stated that after apprehension of accused persons, he requested 45 rickshaw pullers who were going through the spot but they did not join and left the spot without disclosing identity and after showing their genuine grounds. In cross examination PW11 has stated that there are residential houses across the road but they are at a considerable distance. He cannot tell the names of those public persons who have refused to join the raiding party. No notice was given to those public persons due to paucity of time. He admitted that across the road from the place of incident there is a way which lead to Geeta Colony. He does not know if the pump house is situated just across the road from the spot. The FIR No. 194/2013 State Vs. Najruddin etc. Page No.28 of 44 accused persons were apprehended at about 10.00 p.m. PW3 and PW5 have also deposed similarly regarding joining of the public persons. PW11 as also witnesses PW3 and PW5 who were with PW11 have corroborated the statements of each other regarding the efforts made by PW11 to join the public witnesses. PW3 has clearly tendered the explanation regarding non joining of public witnesses as they left away without telling their names and addresses. He also explained that notice could not be served upon them due to paucity of time. The accused were apprehended at about 10.00 p.m. In the instant case, there is no cogent and valid reasons to discard/suspect the testimony of the police officials who had neither prior acquaintance with the accused nor animosty with him. Accused persons had no acquaintance with any of the members of the raiding team. The accused persons did not give reasonable and plausible explanation about their presence on that day at the spot. Keeping in view the general reluctance on the part of the public persons to join the police investigation, it cannot be said that there was any avoidance or evasion on the part of first IO in joining independent witnesses. It is clear that sufficient efforts were made by the IO to join the public witnesses. No ulterior motive has been assigned to the police officials for falsely implicating the accused. I am, therefore, of the view that nonjoining of the independent public witnesses in the factual matrix of the case is not a circumstance to raise suspicion about the motives of the police officials.
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23. Ld. Counsel argued that there is delay in sending the samples to FSL and that there are contradictions as PW1 stated that samples were sent as per directions of SHO and PW7 stated that the same were deposited as per the directions of IO. He also submitted regarding difference in nomenclature of seal affixed on the parcels. In the instant case, recovery was effected on 17.11.2013. PW7 stated that he took the case property to FSL on 21/11/2013 and deposited the same there. Thus, there is about one day delay in depositing the parcels in the FSL. Hon'ble High Court in case of Matlub Vs. State 67 (1997) DLT 372, held that 'sample needs to be sent to FSL without delay and if samples were dispatched with delay and no explanation is given, tampering with the seal can be inferred'. However, in the case of Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Hon'ble Supreme Court upheld the order of Delhi High Court on the issue of ignoring the delay being of 15 days and holding that the statements of witnesses and the report of FSL show sample was received in a sealed cover and there was no tampering of the sample. Similarly, 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.
24. From the cited judgments, the ratio which can be drawn is that to safeguard the possible tampering, the sample should be FIR No. 194/2013 State Vs. Najruddin etc. Page No.30 of 44 sent to FSL at the earliest, preferably in 72 hours, however, if there is delay, onus is on the prosecution to show that there was no tampering with the case property and the sample. If the prosecution satisfies that there was no tampering, the delay is to be ignored, however, in the event of doubt, benefit has to be given to the accused.
25. In the present case, the recovered case property was sealed by PW11 with the seal of 7A PS NB Delhi and same seal was fixed on FSL form. He sent Ct.Om Prakash to Narcotic Cell for calling one another driver and Ct. Om Prakash came with ASI Raghuvir Singh at the spot. Ld. Counsel submitted that ASI Raghuvir Singh and Ct.Om Prakash have not been cited as witness in this case. It is an admitted fact that both these persons are the drivers of the vehicles. Ct. Sohan Pal is the main witness who took the samples and case property to Malkhana and he has been cited as witness and examined in this case. PW5 has specifically stated that the TATA ACE alongwith case property was driven by ASI Raghuvir under his supervision to PS Crime Branch. Thus, the submission of Ld. Counsel that Ct. Om Prakash and ASI Raghuvir has not been made as witness in this case has no merit. PW11 further stated that he prepared rukka and handed over to Ct. Sohan Pal alongwith TATA ACE and 18 white plastic kattas and two sealed samples, FSL form and copy of seizure memo to be handed over to SHO. PW9 Insp. Virender Singh received the same through FIR No. 194/2013 State Vs. Najruddin etc. Page No.31 of 44 Ct. Sohan and put his seal of VSS on the parcels and FSL form. He also put FIR number on the parcels and documents and then deposited the same in malkhana. PW1 HC Jagnarayan is the then MHCM. He stated that SHO Insp. Virender deposited the case property of the present case in the malkhana duly sealed with the seal of 7A PS NB Delhi and VSS alongwith FSL form and copy of seizure memo. He further deposed that on 21.11.2013 pullanda Mark A sealed with the seal of 7APS NB Delhi and VSS were sent to FSL through HC Om Prakash(PW7) vide RC No. 372/21. The FSL result Ex.PW/D shows that the parcels were received in the FSL duly sealed with both the seals. Ld. Counsel has stated that there is contradiction in the testimony of witness as PW1 HC Jagnarain has stated that the samples were deposited in FSL on the direction of SHO and PW7 HC Om Prakash stated that the same was deposited at the instruction of IO and that PW9, the then SHO kept the seal with him after use. The said contradiction as also the seal kept by SHO himself after use are not fatal for the case of the prosecution as the same do not go to the root of the case. Thus, case law Chameli Devi Vs. State, relied upon by the Ld. Counsel, with due respect, is not applicable to the present case. Ld. Counsel has also argued that there is difference in nomenclature of seal as parcels were sealed with the seal of 7APS NB DELHI and VSS but as per FSL report the seal of 7A P.S/NB DELHI & VSS was found and when the main case property was produced the same was sealed FIR No. 194/2013 State Vs. Najruddin etc. Page No.32 of 44 with the seal of 7APS/NB Delhi & VSS. PW11 had sealed the parcels with the seal of 7APS NB DELHI and thereafter at the PS it was sealed by PW9 with the seal of VSS. PW1 the then MHCM received the parcels with the same seal. The case property was opened in the statement of PW3 HC Abdul Hakim. The sample sent to FSL was having cloth piece sealed with the seal of PS/NB 7A DELHI and VSS. Second Sample as also 18 white plastic kattas were also having the same seals when produced in the Court from the Malkhana. As per FSL result Ex.PW6/D, same seal PS/NB 7A DELHI was found affixed. Thus, it is crystal clear that the pullandas were sealed with the seal of PS/NB 7A DELHI and VSS. There is absolutely no difference in the nomenclature of the seal. The submission of Ld.Counsel about deposition of witnesses regarding nomenclature of seal has no merit since it is revealed that they have deposed that seal of 7A PS NB Delhi was affixed and later seal of VSS was affixed by SHO. It seems that witnesses have deposed nomenclature '7A' first and 'PS NB' later. However, there is no difference in words used in the seal. Hence, the case law Rajesh Jgdamba Avasthi Vs. State of Goa AIR 2005 SC 1389 and DRI V. Raj Kumar & Ors., 2011(3) JCC (Narcotics) 156 relied upon by the Ld. Counsel with due respect, are not applicable to the present facts and circumstances of the case. Thus, the submissions of Ld. Counsel is without any basis.
FIR No. 194/2013 State Vs. Najruddin etc. Page No.33 of 44
26. As discussed above, the prosecution has been able to show link from the spot till arrival at FSL. The seals remained intact till the deposit of sample in Malkhana. Thus, there is no possibility of tampering of sample. The delay of one day therefore, cannot be read against the prosecution.
27. Ld. Counsel has stated that the rukka was prepared by Ct. Sohan Pal while other documents were prepared by the IO and that there is no explanation in this respect. He relied upon Judgment State Vs. Ramesh, 2013(2) Delhi JCC 66. PW5 Ct. Sohan Pal, in cross examination has stated that the contents of rukka were dictated by SI Satyawan and were written by him. The rest of the writing work was done by SI Satyawan at the spot. In cross examination, PW11 has also stated that the rukka was prepared by Ct. Sohanpal on his dictation and rest of the documents were prepared by him with his own handwriting. He stated that he cannot specify the reason for having the rukka prepared from Ct. Sohanpal again said, the rukka was got prepared from Ct. Sohanpal as his handwriting is fair and legible. In the evidence, there is sufficient explanation for writing of rukka through Ct. Sohanpal because his handwriting is fair and legible. Writing rukka by Ct. Sohanpal through dictation of PW11 does not go against the prosecution. The case law cited by the Ld. Defence counsel is distinguishable and thus, with due respect, not applicable to the present facts and circumstances of the case.
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28. Ld. Counsel has also stated that log book of government vehicle has not been produced in this case and it creates doubt in the case of the prosecution. Non production of log book of the government vehicle before the court is not mandatory and the case of the prosecution cannot be thrown on this score alone.
29. Ld. Counsel has argued that PW11 remained present in the whole investigation and that it is not permissible. Perusal of the testimony of PW11 revealed that he conducted the investigation only upto sending the parcels and rukka to PS and after reaching of ASI Rajbir, he produced both the accused with documents before him. ASI Rajbir prepared the site plan at the instance of PW11. Prosecution has also examined ASI Rajbir as PW6. The testimony of PW6 revealed that he has conducted the investigation independently being second IO. He arrested the accused persons, conducted their personal search and recorded the disclosure statements. Though, PW11 remained at the spot during the investigation conducted by PW6 ASI Rajbir, but PW6 has conducted the investigation independently. Thus, the submissions of Ld. Counsel has no merit since PW11, First IO, also being complainant has not conducted further investigation.
30. On evaluation of the testimonies of the prosecution witnesses i.e. PW3, PW5 and PW11 it is revealed that they have corroborated the statements of each other that on checking the FIR No. 194/2013 State Vs. Najruddin etc. Page No.35 of 44 TATA ACE No. DL 1 LM 6602, 18 white plastic kattas were found and on checking the same were found containing haare pate dar (flowering tops alongwith seeds) and beej, ghassnuma substance and on smelling and from physical appearance, the substance was found to be ganja. Total 324 Kgs ganja was recovered from the vehicle driven by accused Najruddin in which accused Sanjay was also present. From the statements of PW3 HC Abdul Hakim, PW5 Ct. Sohan Pal and PW11 Insp. Satyawan, it stands established that they remained consistent and confident in their deposition and no infirmity or discrepancy has emerged in their testimonies. No contradiction favouring the defence of accused has come out from the cross examination of these witnesses. Thus, there is no reason to discredit the credibility and reliability of these witnesses. Record reveals that due procedure was followed by the Investigating Officer. PW7 HC Om Prakash deposited the sample parcel at FSL Rohini. The prosecution has also proved the arrest memo, personal search memo of accused persons by the testimony of PW6 SI Rajbir, 2nd IO.
31. In view of the aforesaid discussions, it stands proved that proceedings were conducted meticulously and in compliance of the provisions of the Act. Accused persons have taken the plea in their statements u/s 313 Cr.P.C that they have been falsely implicated in this case. However. They have not led any evidence in their defence to prove their innocence. They have also failed to give FIR No. 194/2013 State Vs. Najruddin etc. Page No.36 of 44 any reason for their false implication. Yet another question which needs answer is whether the samples were properly drawn by IO in this case?
32. As per the prosecution case, ganja contained in 18 bags was recovered from the vehicle No.DL 1LM 6602 being driven by accused Najruddin. Accused Sanjay was present in the vehicle at that time. The weight of each bag was found to be 18 Kgs each and thus, the total weight of recovered substance was 324 Kgs. PW11 stated that he took some parts of ganja from all the 18 plastic kattas as a sample and two sample of 500 grams each were drawn. The ganja taken as a sample were kept in two separate transparent polythenes and tied with rubber band and the same were kept separately in a cloth piece and converted into two cloth pullandas. Both the sample pullanda were given serial no. A and B. 18 plastic kattas were again tied with sutli and given serial no.1 to 18. All the parcels were sealed with the seal of 7APS NB DELHI. PW11 has taken some ganja from each katta and prepared two samples of 500 grams each which was given Mark A and B. As per FSL result Ex.PW6/D, sample Mark A was found to be 492.35 grams (with polythene). Mark B has not been sent to FSL, however, it was produced before the Court alongwith other 18 bags. FSL result confirmed that Exhibit 'A' found to have contained 'ganja' (cannabis). In the case of Gaunter Edwin Kircher Vs. State of FIR No. 194/2013 State Vs. Najruddin etc. Page No.37 of 44 Goa, 1993 (3) SCC 145, their Lordships held as under: "If it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination."
33. In the abovereferred case, where the accused were found in possession of 12 grams of charas in two pieces (5&7 grams), the Investigating Officer had sent the contraband weighing 5 grams for chemical examination. The same was found to be charas. In such situation, Hon'ble Apex Court held that the other piece could not be inferred to be charas. Accordingly, the accused was sentenced only for possession of 5 grams of charas.
34. In the case of Javed A. Bhatt Vs. Union of Inida, 2007 Cri LJ 3145, decided by the Hon'ble High Court of Mumbai, it has been held as under: "In the case at hand, the prosecution did not send all the pieces either in the form of cigars or Hats for analysis but the prosecution remained satisfied only by sending some of such pieces weighing about 50 grams and therefore, applying the principle laid down by the Apex Court it has to be concluded that what the accused was found with, was only 50 grams of charas/hasis and not the entire quantity of 380 grams as contended by the prosecution and that is the inference which has got to be drawn, as drawn by the Apex Court, upon the failure of the prosecution to send all the cigars or flats found with the accused."
FIR No. 194/2013 State Vs. Najruddin etc. Page No.38 of 44
35. In the case of Basant Rai Vs. State Criminal Appeal No. 909/2005, decided by the Hon'ble High Court of Delhi, the facts were that pursuant to the secret information, appellant was caught allegedly carrying 3.5 kgs of charas in a green colour polythene bag which contained 8 smaller polythene bags having black colour substance. Two samples of 25 grams each were made after breaking charas from each of the 8 slabs. The samples were sent to FSL and it was found to be charas. The Hon'ble High Court held as under:
26. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted.
27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative."
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36. In the present case also, samples were drawn after taking some parts of ganja from the 18 plastic kattas and then converted into two sample pullandas Mark A and B. Therefore, the process adopted by the Investigating Officer creates suspicion and it cannot be inferred that all the recovered kattas were of ganja as it is equally possible that some may be of ganja and the other may be of some other substance. In such a situation, benefit thereof goes to the accused with regard to the quantity of recovered ganja.
37. Sample drawn were 500 grams each. Weight mentioned in FSL result Ex.PW6/D is 492.35 grams (with polythene). The difference in weight could be because of measurement on normal scale and digital scale. One sample Mark A Ex.P1 was sent to FSL and another sample Mark B Ex.P2 was produced before the Court. It can therefore be said that 492.35 grams ganja was received at FSL. Since FSL result confirms that samples received by it was of ganja, but in the absence of evidence to prove that the entire 324 Kgs. recovery from accused persons was of ganja, accused persons cannot be held guilty for the possession of 324 Kgs. of ganja. However, prosecution has proved that 492.35 grams of ganja was recovered from the accused persons. Accused Sanjay Kant @ Bhola has not taken any plea that he was not present in the vehicle with accused Najruddin or that he was not aware that ganja was loaded in the vehicle. Thus, it can be inferred that accused Sanjay Kant was aware about ganja being taken in the vehicle.
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38. Charge has also been framed in this case u/s 29 NDPS Act in this case. It is the case of the prosecution that PW11 received secret information that Najruddin and Sanjay @ Bhola who used to procure ganja from Orissa from one Tinku and used to supply the same in Delhi, would bring ganja in TATA Tempo bearing no. DL 1LM 6602 after loading the same from Ballabhgarh. Trap was laid and both the accused were apprehended. Ganja in 18 bags was recovered from the vehicle driven by accused Najruddin. Section 29 NDPS Act contemplatesPunishment for abetment and criminal conspiracy. In the present case, though both the accused persons were apprehended together in the vehicle but they were not exchanging any contraband with each other. The contraband was allegedly in the vehicle. Conspiracy is hatched in dark. Thus, direct evidence is seldom forthcoming, however, the offence can be proved in relation to the acts, deeds or things done by the coconspirators, thus, question would arise as to what nature of the acts, deeds and things would constitute conspiracy. Is merely moving around together or seen in each other's company sufficient? If not, what more should be there from which it could be inferred that the conspirators were acting to achieve the desired offence in furtherance of a crime.
39. To bring home the charge of abetment and criminal conspiracy in terms of Sec.29 of NDPS Act., it is necessary to FIR No. 194/2013 State Vs. Najruddin etc. Page No.41 of 44 establish that there was an agreement between the parties for doing an unlawful Act. It is difficult to establish conspiracy by direct evidence. It is true that it is difficult to support the charge of conspiracy with direct evidence in every case. Considering the facts of the case, it is clear that the prosecution has failed to bring any evidence on record to prove that there was some meeting of mind between the accused persons. Efforts were made by PW6 to arrest coaccused who was source of supply but could not be traced. The prosecution has tried to prove the conspiracy by showing recovery of air tickets to Delhi - Bhuvneshwar Delhi alongwith visitng card which accused Sanjay Kant got recovered from his house vide seizure memo Ex.PW3/O. The visiting card is Ex.PW3/O and tickets are Ex.PW3/Q and Ex.PW3/R. PW6 has stated that he interrogated the owner of Sunrow Cottage namely Nirmal Rout and he told that the accused persons used to visit his cottage. Perusal of the record revealed that said Nirmal Rout has neither been cited as witness in this case nor examined by the prosecution. Recovery of air tickets/visiting card cannot establish conspiracy. Thus, I am of the view that prosecution has failed to prove the charge u/s 29 NDPS Act against both the accused. Both the accused are accordingly acquitted u/s 29 NDPS Act.
40. Accused Najruddin has separately been charged u/s 25 NDPS Act. Section 25 NDPS Act contemplates Punishment for allowing premises, etc to be used for commission of an offence - FIR No. 194/2013 State Vs. Najruddin etc. Page No.42 of 44 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 of by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence. In the present case, prosecution has examined PW10 Harkishan, Dealing Assistant, MLO Head Quarter, Rajpura Road who has stated that he has brought the file containing the original record of registration of TATA ACE bearing no. DL 1 LM 6602 chesis no. MAT 445311AVE38342, engine no. 275CNG16EZYX76163 and that as per record the aforesaid vehicle is registered in the name of Nazruddin s/o Mohd. Hassan. The computer print out of the vehicle particulars is Ex.PW10/A. Accused Najruddin in the statement of accused recorded u/s 313 Cr.P.C has also admitted while replying question no.41 that the vehicle in question belongs to him. The same vehicle was found loaded with ganja and being driven by accused Najruddin himself. Accused Sanjay was accompanying accused Najrudddin. Thus, it is crystal clear that vehicle in question was being used for carrying ganja by accused Najruddin himself and that he did not permit any other person to use his vehicle for the commission of an offence. Therefore, charge u/s 25 NDPS Act could not be established by the prosecution against accused Najruddin.
41. In view of my above discussions, both the accused FIR No. 194/2013 State Vs. Najruddin etc. Page No.43 of 44 Najruddin and Sanjay Kant @ Bhola are acquitted u/s 29 NDPS Act. Accused Najruddin is also acquitted u/s 25 NDPS Act. However, since FSL result confirms that 492.35 grams sample received by it was of ganja, but in the absence of evidence to prove that the entire recovery of 324 Kgs from accused persons was of ganja, accused persons cannot be held guilty for the possession of intermediary or commercial quantity of ganja. I, therefore, both the accused guilty only under Section 20 (b) (ii) (A) of NDPS Act and convict them accordingly.
Announced in the open AJAY
Digitally signed by AJAY
GUPTA
Location: Karkardooma
court on 22.09.2018
Court
GUPTA Date: 2018.09.22 16:41:10
+0530
(AJAY GUPTA)
Addl. Sessions Judge02(East)
Special Judge (NDPS)
KKD COURTS, DELHI.
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