Delhi District Court
State vs Giwa Kadeejat & Ors. on 1 November, 2017
IN THE COURT OF DR. SATINDER KUMAR GAUTAM,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
Sessions Case No. 7540/2016
CNR No. DLST010005982012
FIR no. 114/2012
PS Crime Branchs
u/s 21/29 of NDPS Act
State
versus
Sheetal ..........accused no. 1
w/o Sh. Rakesh Kumar
r/o H. No. R26, Khirki Extension,
Malviya Nagar, New Delhi
Rakesh Kumar Dahiya ..........accused no. 2
s/o Sh. Azad Singh Dahiya
r/o H. No. 190A, Shahpur Jat
New Delhi
Giwa Kadeejat (Absconder)
w/o Mr. Giwa
r/o H. No. 21, Oluwole Street Lagos
Nigeria
(Accused Giwa Kadeejat absconded away during the trial vide order
dated 14.09.2017)
Date of Institution : 05th July 2012
Date of reserving orders : 27th October 2017
Date of Order : 01st November 2017
State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 1 of 66
J U D G M E N T
1.The brief facts as germane from the prosecution case are that one secret information was received by the Investigating Officer/SubInspector (hereinafter referred as IO/SI) Paramjeet Singh of Narcotics Cell, Crime Branch on 23.04.2012 at 12:30 PM that one person named Rakesh Dhaiya, who is the resident of Village Shahpur Jat and also having some base in Malviya Nagar and indulged in the supply of cocaine to his customers of outside Delhi after taking the same from one Nigerian, will come today between 02:30pm to 03:30pm in his car bearing registration no. DL8CT3159 on the road leading towards Krishna Nagar from opposite to the Iris Hotel, Safdarjung Enclave, Delhi for taking cocaine from one Nigerian lady.
2. Acting upon the above said secret information, a team of the police officials of the Crime Branch led by the IO/SI Paramjit Singh had reached at the spot at around 02:30pm and had taken position there. At around 02:55pm one golden colour i20 car bearing registration No. DL8CT3159 was seeing by them coming from the side of Kamal Cinema at a slow speed and the same was identified by the secret informer and the car had turned towards Krishna Nagar and had stopped at some distance. The person sitting on the driving seat of the above car was identified by the informer as the accused State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 2 of 66 Rakesh Dahiya and the lady sitting on his adjoining seat was identified as the coaccused Sheetal.
3. In the meanwhile, one Nigerian lady who is the coaccused Giwa Kadeejat had reached there from the side of Krishna Nagar and had stopped near the car. The coaccused Sheetal had got down from the above car and the coaccused Giwa Kadeejat had taken out a small packet from her hand bag and had given the same to coaccused Sheetal, which was kept by the co accused Sheetal in her hand purse. The coaccused Sheetal had taken out some amount from her hand purse and had also further taken some amount from the accused Rakesh Dhaiya and had handed over the same to co accused Giwa Kadeejat and in the meanwhile the members of the raiding police team had surrounded them and though they had managed to apprehend the coaccused Sheetal and Giwa Kadeejat, but the accused Rakesh Dhaiya was able to flee away from the spot with his above car.
4. After compliance of provisions of Section 50 of NDPS Act, the co-accused Sheetal was found to be in possession of 10 gms of cocaine, which is alleged to have been taken by her from the coaccused Giwa Kadeejat, and the coaccused Giwa Kadeejat was found to be in possession of 40 gms of cocaine in her handbag and also an amount of Rs. 20,000/ which is to be consideration amount of the above 10 gms of cocaine supplied by her to State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 3 of 66 the coaccused Sheetal.
5. IO/SI Paramjit Singh took two samples of two grams each, which were kept into two separate small pouches, tied with rubber bands and same were converted into a cloth pullanda mark A and B and sealed with the seal of 8APSNB DELHI and remaining cocaine in the same semitransparent polythene which was tied with rubber band and converted into a cloth pullanda mark C and sealed with the seal of 8APSNB DELHI. FSL form was filled up and seal of 8APSNB DELHI was affixed.
6. In the same manner, substance recovered from coaccused Sheetal was weighed. IO/SI Paramjit Singh took two samples of two grams each, which were kept into two separate small pouches, tied with rubber bands and same were converted into a cloth pullanda mark D and E and sealed with the seal of 8APSNB DELHI and remaining cocaine in the same semi transparent polythene which was tied with rubber band and converted into a cloth pullanda mark F and sealed with the seal of 8APSNB DELHI. FSL form was filled up and seal of 8APSNB DELHI was affixed.
7. SI Paramjit Singh took all the sealed pullandas including case property and samples recovered from the possession of coaccused Sheetal and FSL form and seized them vide two seizure memos. Thereafter, rukka was prepared and handed over to HC Sanjeev Kumar alongwith six parcels mark A State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 4 of 66 to F, two FSL forms and two copies of seizure memos with the direction to go to PS Crime Branch to hand over the parcels, FSL forms and copies of seizure memos to SHO and to hand over rukka to duty officer. HC Sanjeev Kumar reached at the Police Station Crime Branch and got the FIR registered. He handedover remaining articles to SHO, who checked all the seals and affixed his own seal of BKB on all the six pullandas and FSL forms. After endorsement of FIR number of the articles, he called MHC(M) in his office and handed over all the articles to him. MHC (M) made entry in register no.19 in the office of SHO, PS Crime Branch and deposited the case property in the malkhana. After registration of FIR, HC Sanjeev Kumar alongwith ASI Mahender Singh left police station and reached Narcotics Cell and HC Sanjeev Kumar handed over copy of FIR and original rukka to ASI Mahender Singh. Thereafter, ASI Mahender Singh alongwith HC Rajesh and Ct. Paramjit left the office and reached at the spot. There, SI Paramjit Singh had handed over the custody of Giwa Kadeejat and Sheetal alongwith some documents. ASI Mahender Singh prepared site plan at the instance of SI Paramjit Singh.
8. Accused Giwa Kadeejat was interrogated and was arrested vide arrest memo Ex. PW9/D. Currency notes in the denomination of 500was recovered from the possession of accused Giwa Kadeejat was kept in cloth sealed pullanda and sealed with the seal of 5APSNB DELHI, mark G was given State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 5 of 66 on the pullanda and taken into possession vide seizure memo.
9. During the personal search of accused Giwa Kadeejat , one carbon copy of notice u/s 50 NDPS Act, one hand bag containing some documents and two small purses of black and red colour containing Rs. 880, one key, metro card , one passport and one mobile phone were recovered. Personal search memo of accused Giwa Kadeejat was prepared which is already Ex. PW4/H. Disclosure statement of accused Giwa Kadeejat was recorded vide Ex. PW9/E.
10. Accused Sheetal was interrogated and she was arrested vide arrest memo Ex. PW9/F. During the personal search of accused Sheetal , one carbon copy of notice u/s 50 NDPS Act, one purse containing Rs. 2690/some documents, keys, eight golden colour ring, two golden ear ring, two golden colour chain with locket and one mangasutra were recovered. Eight golden colour ring, two golden ear ring, two golden colour chain with locket and one mangasutra were kept in a polythene and converted into a pullanda and sealed with the seal of 5APSNB DELHI and seized vide personal search memo vide Ex. PW4/I. Disclosure statement of accused Sheetal recorded vide Ex. PW9/G.
11. Thereafter, ASI Mahender Singh came to the office of Narcotics Cell, Shakarpur, Delhi and produced accused Giwa Kadeejat and Sheetal State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 6 of 66 before Inspector Kuldeep Singh, who made inquiries from both the accused and found their arrest is correct.
12. On 24.04.2012, SI Paramjit Singh produced Special report u/s 57 of NDPS Act (Ex. PW3/B1) regarding seizure of Cocaine from both the accused and ASI Mahender Singh produced special report u/s 57 of NDPS Act (Ex. PW3/C1) regarding arrest of both accused. Both report were forwarded to ACP, Narcotics Cell by Inspector Kuldeep Singh.
13. During investigation, Investing Officer had served a notice u/s 133 of the Motor Vehicles Act to the registered owner of the vehicle Sh. B. K. Goyal and he had also appeared before the IO and had tendered a statement u/s 161 Cr. PC dated 02.05.2012 in which he stated that vehicle has already been sold by him to the accused Rakesh Kumar Dhaiya on 15.02.2011 i.e. about one year and two months prior to the registration of this case, vide a delivery receipt duly signed by him and the accused Rakesh Kumar Dahiya had also handed over to him four signed cheques as a security to ensure the timely payment of the consideration amount as the payment was to be made by the accused to him in installments. He had also handed over the photocopies of the cheques to the IO alongwith the copy of the delivery receipt, and it was also confirmed by the IO during investigation that the above cheques were given by the accused Rakesh Kumar Dahiya form his account being maintained in the State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 7 of 66 Kotak Mahindra Bank. As per the above delivery receipt the possession of the vehicle was also handed over by Sh. B. K. Goyal to the accused on the date of execution of the delivery receipt itself i.e. 15.02.2011 at about 06:15pm. As such, it revealed that Sh. B. K. Goyal had already sold the above vehicle to the accused Rakesh Kumar Dahiya on the above date and the above accused was the owner and in possession as well as control of the above said vehicle on the date of impounding of the above vehicle in this case and the registration of this FIR. Since the vehicle was used by accused persons in the delivery of contraband substance, in terms of the provision contained in Section 60 of NDPS Act, the vehicle is confiscated under the NDPS Act.
14. Further, it is the case of prosecution that accused Giwa Kadeejat sold 10 grams of Cocaine to coaccused Sheetal for a sum of Rs. 20,000/ and the members of the raiding team had seen the handing over of the 10 grams of Cocaine by Giwa Kadeejat to accused Sheetal and an amount of Rs. 20,000/ by Sheetal to Giwal Kadeeja and out of this amount, some amount was taken by Sheetal out of her small purse and some was handed over to her by accused Rakesh Kumar Dahiya, for further handing it over to Giwa Kadeejat.
15. It is further alleged that call detail record and the cell location chart of the mobile phone of accused Giwal Kadeejat and Rakesh Kumar Dahiya and of some other persons were taken during the investigation and the State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 8 of 66 location of the mobile phone of accused Rakesh Kumar Dahiya is also found to be in the vicinity of the place where the accused Giwa Kadeejat and Sheetal were apprehended by the police party, alongwith the above contraband substance. Accused Rakesh Kumar Dahiya has also disclosed the name and mobile number of the one Ade during investigation to be the person by whom the above contraband substance was being sent to him, sometimes through accused Giwa Kadeejat, and also of one Praveen of Adilabad, Andhra Pradesh to whom the same was being supplied by him and the mobile number disclosed to be of above Ade has been found to be issued on some fake identity and the mobile number of Praveen has though been confirmed, but it has been found that though he is known to accused Rakesh Kumar Dahiya but it could not be established during investigation that he has anything to do with the drug dealing of accused Rakesh Kumar Dahiya and it also could not be established that the different conversations between the users of the above two mobile numbers and the mobile number of the accused were in furtherance of any criminal conspiracy to deal in contraband substance. One of such mobile number has been found to be issued in a fake name and the other to be of a person known to accused Rakesh Kumar Dahiya and both these mobile numbers were in constant touch with the mobile number of the accused Rakesh Kumar Dahiya, who in any conspiracy to deal in contraband substance State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 9 of 66 as the above discovery of facts has been effected in pursuance of the disclosure made by him and there is also other sufficient evidence on record to show that he was present at the spot at the time of delivery of the contraband substance and had managed to escape.
16. It is further alleged by the prosecution that at the time of apprehension, accused Giwa Kadeejat was found in possession of one Passport No. A3212462A having Visa Nos AP0551475 and AM379505 affixed thereon and she had also subsequently produced another Passport no. A00023614 having Visa No. AF826735 with her photographs appearing on both passports and on verification both the passports and three visas affixed thereon have been found to be fake. Both the passports are having her photographs and have apparently been either forged by her or got forged dishonestly or fraudulently with an intent to cheat the other persons and to make them believe that same were her genuine passports and visas.
17. On 26.04.2012 samples Mark A and B, FSL form, Road Certificate no. 234/21 dated 26.04.2012 were handed over to HC Manjeet Singh with direction to deposit the same with FSL, Rohini. Report of FSL dated 07.06.2012 was prepared by Dr. Kanak Lata Verma, Senior Scientific Officer (Chemistry), FSL, Rohini Ex. PW18/F. As per this Report, on chemical, TLC & GC examination (I) Exhibit Mark A and D were found containing 25.5.% and State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 10 of 66 22.5% of Cocaine respectively. After completion of investigation, charge sheet was filed in the Court against accused Giwa Kadeejat and Sheetal.
18. Thereafter, on 13.07.2012 supplementary chargesheet was filed against accused Rakesh Kumar Dhaiya.
19. On the basis of investigation carried out, material collected during investigation as well as statement u/s 161 Cr. PC, charges against the accused persons were framed for the alleged offences.
20. Accused Giwa Kadeejat was charged for the offence u/s 21 (b) of NDPS Act for selling 10 grams of Cocaine to coaccused Sheetal for Rs. 20,000/ which was recovered from her possession and she was found in possession of 40 grams of Cocaine and accused Giwa Kadeejat by selling and possessing the above quantity of Cocaine without any permit or licence and in contravention of the provisions of Section 8 (c) of NDPS Act.
21. Accused Giwa Kadeejat was further charged for the offence u/s 14 Foreigners Act as she was also not having any valid document like passport and visa or permission for her entry and stay in India.
22. Accused Giwa Kadeejat was further charged for the offence u/s 29 of NDPS Act. She was further charged for the offence u/s 466 IPC as she was found in possession of one passport no. A3212462A having Visa Nos. AP0551475 and AM379505 affixed and she was also in possession of passport State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 11 of 66 no. A00023614 having visa no. AF826735. She was alternatively charged for the offence u/s 471 IPC by using the above two passports dishonestly to be the genuine passports and above three visas affixed there fraudulently or dishonestly to be the genuine passports and the visas pertaining to her and her entry and stay in India knowing fully well to be forged documents.
23. Accused Sheetal was charged for the offences u/s 21 and 29 of NDPS Act whereas alleging that on 23.04.2012 at about 03:00pm, at opposite Irish Hotel on the road leading towards Krishna Nagar, New Delhi, she had purchased 10 grams of Cocaine from coaccused Giwa Kadeejat on payment of Rs. 20,00/ and above 10 grams of Cocaine was recovered from her possession and she by purchasing and possessing the above quantity of Cocaine, without any permit or licence and in contravention of provisions of Section 8 (c) of NDPS Act. She alongwith coaccused Giwa Kadeejat and Rakesh Kumar on the said date time and place entered into a criminal conspiracy to deal in the contraband substances and purchased 10 grams of cocaine from her coaccused Giwa Kadeejat on payment of Rs. 20,000/ and committed the offence u/s 29 of NDPS Act.
24. Accused Rakesh Kumar Dahiya was charged for the offences u/s 25 and 29 of NDPS Act whereas alleging that on 23.04.2012 at about 03:00pm, at opposite Irish Hotel, being the owner of vehicle bearing registration no. DL State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 12 of 66 8CT3159make Hyundai i20 knowingly used for the offence u/s 25 of NDPS Act.
25. Accused Rakesh Kumar Dahiya was further charged that on or before the above date he alongwith his coaccused Giwa Kadeejat and Sheetal entered into a criminal conspiracy to deal in the contraband substances and co accused Sheetal purchased 10 grams of cocaine from coaccused Giwa Kadeejat on payment of Rs. 20,000/ and committed the offence u/s 29 of NDPS Act.
26 It is pertinent to note that after closure of prosecution evidence, accused Giwa Kadeejat absconded away. The process u/s 82 Cr. PC has been executed against her, despite service effected through publication in daily national newspaper. She could not apprehend or trapped. As such, accused Giwa Kadeejat was declared 'absconder'. Process server reported that she is not living at the last known address.
27. In order to substantiate the charges against the accused persons and to bring home the guilt within the four corners of charges, prosecution examined 23 witnesses in all, whose testimonies are as under: 27.1 SI Paramjeet Singh (PW9) deposed that on 23.04.2012, at about 12:30 PM, a secret informer come to him and informed that one person State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 13 of 66 named Rakesh Kumar, who was a resident of Shahpur Jaat and was also having some base in Malviya Nagar, was involved in the dealings of drug as he used to take cocaine from Nigerians and supply the same to his customers. The informer also disclosed to him that the above Rakesh will come today in his car no. DL 8CT 3159 on the way leading towards Krishan Nagar, from opposite the Irish Hotel, Safdarjang Enclave, to take cocaine from some Nigerian lady between 2:30 PM to 3:00 PM and he can be apprehended with cocaine if a raid is conducted. He produced the informer before Inspector Kuldeep Singh of Narcotic Cell in his room/office and he had also made some inquiries from the informer and was satisfied about the same. Inspector Kuldeep Singh had also telephonically informed the ACP Narcotic Cell, Sh. Bir Singh about the above information and after being satisfied, the ACP had also directed him for taking appropriate legal action on the said information. 27.1.2 Thereafter, he had got recorded one DD No. 15 at about 1:00 PM in his office regarding the above information Ex. PW9/A and a copy of the above information was also produced by him before Inspector Kuldeep Singh, in compliance of the provisions of Section 42 of the NDPS Act. Then, he had constituted a raiding party consisting of himself, HC Sanjeev Kumar, HC Harender, Ct. Manjeet and Lady Ct. Rekha, as per the directions of the senior officers, and all the members of the raiding team were apprised about the State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 14 of 66 above information. As per this information they had gone via Pushta Road, ITO, India Gate and Aurbindo Marg and reached at the above spot, opposite Irish Hotel at around 2:30 PM. On the way, they had stopped the vehicle at three places, i.e. the ITO Bus Stop, INA Market Bus Stop and at the Bus Stop outside the gate of Safdarjang Hospital and he had requested 56 persons at each of these places for joining the raiding team, but all of them refused to join while giving their genuine reasons.
27.1.3 They reached near Scorpio parked at a distance of about 50 meters on the road leading towards Krishan Nagar and had briefed all the members of the raiding team and had deployed them at the spot. He alongwith lady Ct. Rekha and the secret informer had taken position opposite the Irish Hotel, on the right side of the road leading towards Krishan Nagar and the other members of the raiding team had taken position on the left side corner of the above road and they all started waiting there. At about 2:55 PM, one Hyundai i20 car of golden colour had come from the side of Kamal Cinema at a slow speed and had turned towards Krishan Nagar side from the above turn, after crossing them. The informer had pointed out the above car to be of the above Rakesh and the car had stopped after travelling for a distance of about 1520 steps from them . The informer had told them that the person who was on the driving seat of the above car was Rakesh and the lady who was sitting by his State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 15 of 66 side on the front left seat was Sheetal.
28. Further deposition made by witnesses namely, Ct. Rekha (PW4); HC Sanjeev Kumar (PW12) and HC Manjeet Singh (PW14) in the preceding paragraphs.
29. Inspector B. K. Badola (PW1) working as SHO at PTS Malviya Nagar and on 23.04.2012 at about 07:35pm, HC Sanjeev came in his office and produced him six seal pullandas, two FSL forms and two copies of seizure memos. Sealed with the seal of 8APS Delhi. These pullandas were having marks A to F. He affixed one seal impression of his seal of BKB on each pullanda and also on both the FSL forms. He called HC Jag Narain MHC (M) with register no. 19 and he put the FIR number 114/12 on the pullandas as well as on the FSL form and copy of seizure memos after inquired from the Duty Officer. Then he handed over pullandas, FSL forms and copies of seizure memos to MHC (M) for depositing the same in the malkhana. HC Jag Narain made entry no. 14/01/12 in register no. 19 which is mark A. PW1 also recorded DD no. 26 at 08:20pm in the daily diary register which is mark B.
30. HC Jag Narain (PW2) deposed that on 23.04.2012, Inspector B. K. Badola called him in his office alongwith register no. 19 of malkhana. Inspector B. K. Badola handed over to him six sealed pulandas, duly sealed with the seal of 8APS NB Delhi and BKB, two FSL forms and two carbon State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 16 of 66 copies of seizure memo and directed him to deposit the pulandas and above documents in the malkhana. He deposited the pulandas, two forms FSL and two carbon copies of seizure memos in malkhana vide entry no. 1401 Ex. PW2/A of the register no.19. In the same night, ASI Mahender Singh had handed over to him the personal search articles and sealed pulanda of currency duly sealed with the seal of 5APS NB Delhi which he deposited vide entry no. 1402 of malkhana vide Ex. PW2/B. 30.1 Thereafter, on 15.06.2012 SI Bhagwan Singh had deposited car no. DL 8CT 3159 make i20 which he deposited in the malkhana vide entry no. 1528 of the register no. 19 vide Ex. PW2/C. 30.2 On 26.04.2012, two sealed pulandas of this case Mark A and B, alongwith two FSL forms were sent to the office of FSL through Ct. Manjeet Singh vide RC No. 234/21. The copy of RC is Ex. PW2/D. Ct. Manjeet later on brought the proof of receipt of pulandas in the office of FSL and gave to him . Copy of the acknowledgment of receipt is Ex. PW2/E. 30.3 On 19.06.2012, result of this case was received from the office of FSL which was given to the IO for filing in the Court.
31. HC Om Prakash (PW3) posted as Reader to ACP, Narcotics & Crime Prevention, Shakarpur, Delhi stated that on 23.04.2012, a copy of DD no. 15 was received in the office and the same was put up by him before Sh. State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 17 of 66 Bir Singh, ACP for perusal, who had seen and endorsed the same. The said Daily dairy was entered in the dak register vide entry at sl. no. 918 dated 23.04.2012. The original DD is Ex. PW3/A1.
31.2 On 24.04.2012, two special reports u/s 57 of NDPS Act i.e. one sent by SI Paramjeet Singh and the other sent by ASI Mahender Singh were received in their office. The said two reports were put by HC Om Prakash (PW
3) before ACP and were seen and endorsed by him. These reports were also entered subsequently in the dak register vide entries at sl no. 939 and 940 vide Ex. PW3/B and Ex. PW3/C respectively. Original special reports u/s 57 of NDPS Act are vide Ex. PW3/B1 and Ex. PW3/C1.
31.3 On 15.06.2012 one more special report u/s 57 of NDPS Act was received in the office which was sent by SI Bhagwan Singh through Inspector, Narcotic Cell, Shakapur and this report was also put up by him before ACP for perusal. It was entered in the dak register vide entry at sl. no. 1455 vide Ex. PW3/D. Original special report is Ex.PW3/D1.
32. W/Ct. Rekha (PW4) member of raiding team headed by SI Paramjeet Singh. She has deposed about the apprehension of the accused, recovery of 'cocain' from the possession of accused persons and other proceedings conducted by SI Parajeet Singh at the spot. State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 18 of 66
33. HC Upender (PW5) was the Duty Officer at PS Crime Branch, Malviya Nagar on 23.04.2012. He deposed that at 07:30pm, HC Sanjeev had brought a rukka, on the basis of which he recorded FIR No. 114/12 vide Ex. PW5/A and made endorsement on the rukka Ex. PW5/B.
34. Sh. Balwant Kumar Goyal (PW6) registered owner of i20 car no. DL8CT3159. In February, he had sold his car to accused Rakesh Kumar Dhaiya for a sale consideration of around of Rs. Five lacs. He further deposed that notice 133 of MV Act was given to him regarding the vehicle and in response to the same, he produced the photocopy of the delivery receipt Ex. PW6/B, photocopy of RC mark PW6/1 and photocopies of four cheques issued by accused Rakesh Dahiya to him as security is Ex. PW6/C (colly)
35. Sh. Rakesh Gupta (PW7) owner of house no. R26, ground floor, Khirki Extension, Malviya Nagar, Delhi which was let out @ Rs. 15,000/ per month in the year 2011/2012. He had given a copy of rent agreement to the police officials and the same was taken into possession by them vide seizure memo Ex. PW7/A.
36. Sunil Kumar (PW8) deposed that Hyundai i20 bearing registration no. DL8CT3159 is in the name of Sh. B. K. Goyal s/o Sh. R. K. Goyal r/o PU70, Second Floor, Pitampura. The date of registration of above State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 19 of 66 vehicle is 30.05.2010 and the colour of vehicle is silky baig. 36.1 The original notice u/s 91 Cr. PC given to the MLO of Transport office and the computerized copy of vehicle particulars supplied in response to the same, marked as mark PW8/1 and PW8/2 respectively. The copies of the transferred documents on the basis of which change of ownership was effected by their office are collectively Ex. PW8/B.
37. SI Paramjit Singh (PW9) whose deposition as discussed in the preceding paragraphs of the judgment as he is the first investigating officer, who received the secret information and raid was conducted by him with assistance of secret informer and members of raiding party.
38. Sh. Vishal Gaurav (PW10) Nodal Officer, Bharti Airtel ltd. deposed that mobile phone number 9810652224 issued in the name of Rakesh Dahiya s/o Azad Singh r/o H. No. 190A, Shahpur Jat Village, Delhi49 as on 25.11.2011. He placed on record copy of Customer Application form Ex. PW10/A, copy of election Icard of Rakesh Kumar Dahiya Ex. PW10/B and Call Details record from 15.04.2012 to 25.04.2012 Ex. PW10/C. PW10 issued certificate u/s 65B of Indian Evidence Act for the said call details Ex. PW10/D and Cell ID charge Ex. PW10/F. State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 20 of 66
39. Sh. Anuj Bhatia (PW11) Nodal Officer, Vodafone Mobile Services deposed that on the application of SI Bhagwan Singh received at their office for CAF, CDR and ownership of mobile phone number 8587079057 and the certificate u/s 65B Indian Evidence Act Ex. PW11/A. He handed over CAF, CDR and ownership of said mobile phone and certificate u/s 65B of Indian Evidence Act to SI Bhagwan Singh vide letter dated 07.06.2012 Ex. PW11/B. Copy of CAF, CDR and certificate u/s 65B Indian Evidence Act Ex. PW11/C, Ex. PW11/D and Ex. PW11/E. 39.1 As per CAF, subscriber of mobile number is one Sh. Ravi Ranjan Kumar s/o Brijakishor Singh r/o 108, Singhra AnchalKonch, District Gaya, Bihar. Photocopy of election I card subscriber submitted with CAF Ex. PW11/1.
40. HC Sanjeev Kumar (PW12) is the member of raiding party. His examinationinchief is same as deposed by the other members of raiding party.
41. Sh. Bir Singh, ACP (PW13) deposed that on 23.04.2012 he was working as ACP, Narcotic Cell, Crime Branch and at about 12:45pm Inspector Kuldeep Singh came and informed that one person named Rakesh Kumar, who is a resident of VillageShahpur Jat living somewhere in Malviya State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 21 of 66 Nagar, who deals in supply of Cocaine in the outer periphery of Delhi. I was also informed that he procures Cocaine from a Nigerian lady. It was also informed that between 02:30 to 03:00pm, the said Nigerian lady would supply Cocaine to accused Rakesh near Irish Hotel Safdarjung enclave, opposite Krishna Nagar. It was also informed that accused Rakesh Kumar would be coming in his car bearing registration no. DL 3CT 3159. The said information received u/s 42 of NDPS Act vide diary Ex. PW3/A no. 918 on 23.04.2012 Ex. PW3/A1.
41.1 On 24.04.2012, HC Om Prakash, Reader had put two reports u/s 57 of NDPS Act which was duly forwarded by Inspector Kuldeep Singh Narcotic Cell vide diary no. 939 Ex. PW3/B and 940 Ex. PW3/C.
42. HC Manjeet Singh (PW14) deposed that on the direction of ASI Mahender Singh he went to PS Crime Branch to collect the sample parcels to deposit with FSL, Rohini. He handed over two pullandas duly mark A and B, FSL form, Road Certificate no. 234/21 dated 26.04.2012. He deposited the above said pullandas alongwith FSL form at FSL and handed over copy of RC vide Ex. PW2/D and acknowledgement receipt of FSL Ex. PW2/E to MHC (M) after depositing the same.
43. ASI Mahender Singh (PW15) is the second investigating officer. He has proved true copy of DD no. 25 Ex. PW15/A); site plan Ex. State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 22 of 66 PW15/B; arrest memo of accused Giwa Kadeejat Ex. PW9/D, her personal search memo Ex. PW4/H and disclosure statement Ex. PW9/E. He has also proved arrest memo of accused Sheetal Ex. PW9/F, her personal search memo 4/I and disclosure statement Ex. PW9/G. He has placed on record DD no. 3 Ex. PW15/C. 43.1 PW15 prepared special report u/s 57 of NDPS Act Ex. PW3/C1 regarding arrest of accused persons which was forwarded by Inspector Kuldeep Singh to ACP concerned
44. Sh. Shashi Lov (PW16) Deputy Manager, Kotak Mahindra Bank deposed that a notice u/s 91 Cr.PC dated 08.05.2012received in their branch to provide certain documents/details in respect of account no. 01720120063720. On 11.05.2012, the said information was provided by Sh. Pankaj Bawari through letter Ex. PW16/A alognwith annexed documents in respect of abovesaid account number in the name of Rakesh. The documents annexed with the letter are Ex. PW16/B and statement of account is Ex. PW16/C.
45. Inspector Kuldeep Singh (PW17) deposed that on 23.04.2012 at about 12:45pm, SI Paramjit Singh alongwith secret informer came to his office and informed him that person namely, Rakesh is indulged in sale and supply of Cocaine after procuring the same form Nigerian Nationals. PW17 State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 23 of 66 made inquiries from the informer and after his satisfaction, he conveyed this information to Sh. Bir Singh, ACP, Narcotic Cell telephonically at his office. SI Paramjeet Singh had lodged DD no. 15 at about 01:00pm and produced the copy of same before him which he forwarded to ACP, Narcotic Cell. 45.2 On 24.04.2012, SI Paramjit Singh produced special report u/s 57 of NDPS Act regarding seizure of Cocaine form both the accused which he forwarded to ACP, Narcotic cell vide Ex. PW3/B1. ASI Mahender Singh produced special report u/s 57 NDPS Act regarding the arrest of both the accused persons, which he forwarded to ACP, Narcotic Cell vide Ex. PW3/C1. 45.3 On 14.06.2012, a report was got lodged by SIT/Crime Branch regarding arrest of accused Rakesh Kumar Dahiya. On 15.06.2012, SI Bhagwan Singh had produced a special report u/s 57 of NDPS Act regarding arrest of accused Rakesh which he forwarded to ACP, Narcotic Cell vide Ex. PW3/D1.
46. Inspector Bhagwan Singh (PW18) deposed that on 14.05.2012 further investigation of this case was handed over to him. He collected the CDR of mobile phone number 8587079057 of Giwa Kadeejat and 9810652224 of Rakesh. The mobile phone number 8587079057 of Giwa Kadeejat was found in the name of Sh. Ravi Ranjan r/o Baljeet Nagar. During investigation, he collected call record of phone number 8587079057 of Giwa State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 24 of 66 Kadeejat from Vodafone. He also collected record of phone number 9810652224 of Rakesh Kumar from Airtel. After going through the CDR, he found the position of Giwa Kadeejat and Rakesh Kumar at the place of occurrence i.e. near Safdarjung Enclave, opposite Eris Hotel, New Delhi on 23.07.2012 at about 03:00pm.
46.1 On 29.05.2012, he obtained NBW against the accused Rakesh Kumar from the concerned Court. On 02.06.2012, accused Giwa Kadeejat produced one passport and two visas before the Court which were given to him by the order of the Court for verification.
46.2 On 04.06.2012, he prepared the chargesheet against accused Giwa Kadeejat and Sheetal. During investigation, he had also collected copy of documents of account of Rakesh Kumar from Kotal Mahindra Bank as per letter Ex. PW16/A and documents Ex. PW16/B 46.3 On 04.06.2012, he sent two passports of Giwa Kadeejat and three visas to Ministry of External Affairs for its verification. He also collected details of CDR alongwith certificate u/s 65B of Indian Evidence Act 46.4 On 14.06.2012, on receipt of DD no. 5, u/s 41.1 (B) Narcotic Cell, Shakapur, Delhi regarding arrest of accused Rakesh Kumar by ASI Suresh Kumar of Crime Branch. He moved an application before the Court of Sh. Rajender Kumar, Ld. Duty MM, Saket Court for interrogation and arrest of State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 25 of 66 accused Rakesh Kumar. He interrogated the accused and arrested him vide arrest memo Ex. PW18/A and recorded his disclosure statement vide Ex. PW18/B. He also collected arrest memo, personal search memo and disclosure statement of accused Rakesh Kumar form ASI Suresh Kumar. He collected copy of DD no. 16 dated 13.06.2012 of SIT Crime Branch, Sector 18, Rohini vide which accused Rakesh Kumar was arrested by ASI Suresh Kumar.
46.5 On 14.06.2012, he moved an application before the Court for two day's police custody remand of accused Rakesh Kumar, which was granted by Hon'ble Court. Thereafter, he alongwith HC Kanwal Singh and accused Rakesh Kumar reached at place of occurrence, and prepared pointing out memo (Ex. PW18/C). As per disclosure statement of accused Rakesh Kumar, he had disclosed that the mobile phone alongwith SIM which he had used on the date of occurrence was thrown by him at Aurobindo Marg, near IIT Gate Flyover, after breaking the phone as well as the SIM . Thereafter, accused took them at the above said spot where he tried to search the SIM and mobile phone but in vain. He prepared pointing out memo of the above said spot Ex. PW18/D. He lodged DD no. 20 dated 14.06.2012 Ex. PC at Narcotic Cell, Shakapur with regard to arrest of the accused.
State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 26 of 66 46.6 On 15.06.2012, he prepared Special Report u/s 57 of NDPS Act
regarding arrest of the accused Rakesh Kumar which was duly forwarded by Inspector Kuldeep Singh to the ACP concerned which is already Ex. PW3/D1. On 15.06.2012, he alongwith HC Kanwal Singh, HC Mahesh Kumar and accused Rakesh Kumar departed for further investigation of this case and reached at the residence of accused Rakesh Kumar at 190A, Shahpur Jat village, New Delhi where they found one car bearing no. DL 8CT 3159 make I 20 of golden colour. Same was taken into possession alongwith the key vide seizure memo Ex. PW18/E. Thereafter, he alongwith accused Rakesh Kumar went for the search of source of supply Ade in the area of Tilak Nagar Metro Station but in vain. On 16.06.2012, accused was produced before the concerned Court and sent to the judicial custody.
46.7 On 30.06.2012, MHC (M) had handed over the FSL result to him which was attached with the file. FSL report no. 2012/C2721 dated 07.06.2012 prepared by Dr. Kanak Lata Verma, Senior Scientific Officer (Chemistry) is Ex. PW18/F. PW18 also obtained the details of CDR of mobile phone number 9560187460 which was being used by one Ade as disclosed by the accused and who used to supply the contraband through the accused Giwa Kadeejat to the accused Rakesh Kumar. CDR detail of mobile phone number 9560187460 are Mark PW18/A. The said mobile phone number was found to be in the name State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 27 of 66 of Ms. Meenu Tangri. He also collected CDR of mobile phone number 9704212343, which as disclosed by accused Rakesh Kumar was of one Praveen Kumar r/o Hyderabad to whom the accused Rakesh Kumar used to supply contraband. CDR detail of mobile phone number 9704212343 are Mark PW18/B. The said mobile phone number was found to be in the name of Sh. Makhariya Umesh Kumar r/o District Aadilabad, Andhra Pradesh. 46.8 He prepared supplementary charge sheet which was filed before the concerned Court alongwith the documents. On 25.07.2012, he inquired from the Ms. Meenu Tangri subscriber of mobile phone number 9560187469 and she stated that she had never used this mobile phone number nor she got issued this number in her name. During investigation, he also recorded the statement of Nodal Officers of Vodafone and Airtel. He also collected the record of the two passports and two visas of the accused Giwa Kadeejat from Ministry of External Affairs. As per report given by MEA, both the passports and visas were found fake.
47. Sh. Bhopal Dutt (PW19) Senior Superintendent, PVII, Ministry of External Affairs, deposed that a letter No. 1273/R/ACP/N & CP dated 04.06.2012 was received from Narcotic Cell, Crime Branch, Shakarpur, Delhi in their office with regard to verification of visa No. AF826735 issued to Giwa Kadeejat Maryo. As per the report received from High Commission of India, State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 28 of 66 Lagos the visa No. AF826735 dated 13.01.2012 was not issued by the High Commission of India, Lagos. The report received from High Commission of India, Lagos sent to Inspector Vivek Pathak, Crime Branch, Shakar Pur, Delhi alongwith covering letter of Sh. Trilok Chand, Section Officer PVII. The said letter is Ex. PW19/A . The copy of report received from High Commission of India, Lagos through email is markA. 47.1 He further deposed that a letter No. 1275/R/ACP/N & CP dated 04.06.2012 was received from Narcotic Cell, Crime Branch, Shakarpur, Delhi in their office with regard to verification of visa No. AM379505 and visa no. AP0551475 issued to Giwa Kadeejat Maryo. As per the report received from High Commission of India, Lagos the visa No. AM379505 was not issued by the High Commission of India, Lagos. As per the report received from Consulate General of India, Johansberg the visa No. AP0551475 was not issued by the Consulate General of India, Johansberg as the sticker No. AP0551475 does not correspond to the series supplied to this post. 47.2 Both reports received from High Commission of India, Lagos and Consulate General of India, Johansberg sent to Inspector Vivek Pathak, Crime Branch, Shakar Pur, Delhi alongwith covering letters of Sh. Trilok Chand, Section Officer PVII. The said letters are Ex. PW19/B and Ex. PW19/C respectively. The copy of report received from High Commission of India, State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 29 of 66 Lagos and Consulate General of India, Johansberg through email are markB and C respectively.
48. ASI Suresh Kumar (PW20) deposed that on 13.06.2012, he was psoted at SIT Crime Branch, Sector18, Rohini. He alongwith Inspector Arti Sharma, SI Rajnish Sharma, HC Amit Tomar, HC Bahadur Sharma, Ct. Dabbu, Ct. Narender, Ct. Gyaneshwar and other Police officials alongwith secret informer constituted a raiding team and left their office at about 06:30pm vide DD no. 14 in three private vehicles for the spot. At about 08:20pm, they reached at Select City Mall, Saket where he asked 45 passersby to join the raid but none agreed to join the raiding team. Due to paucity of time, no notice was served upon the public persons.
48.1 At about 08:50pm, one person was found coming from the side of Malviya Nagar on foot towards Select City Mall side. Secret informer had pointed out towards that person and he (PW20) with the help of Ct. Gyaneshwar apprehended him. That person was interrogated who disclosed his name as Rakesh Kumar Dahiya. Secret informer had left the spot after pointing out towards the accused. He interrogated him and recorded his disclosure statement in which he had confessed about his involvement in the present case. At about 09:30pm, accused Rakesh was arrested vide arrest memo Ex. PW20/A. His personal search was taken vide memo Ex. PW20/B. State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 30 of 66 Disclosure statement of accused was recorded vide statement Ex. PW20/C. 48.2 Thereafter, accused Rakesh Kumar Dahiya was taken to SIT, Crime Branch, Sector18, Rohini where DD No. 16 was lodged with regard to proceedings conducted by him. True copy of DD no. 16 is Ex. PW20/D. On 14.06.2012 vide DD no. 5, an information of arrest of accused Rakesh Kumar was given to Narcotic Cell, Crime Branch, Shakarpur. Accused was produced before the Court of Duty MM, Saket where SI Bhagwan Singh, Narcotic Cell had obtained the permission to interrogate the accused. He had submitted the kalandara alongwith the documents before the Court of Duty MM. Kalandara is Ex. PW20/E.
49. ASI Suresh (PW20) SHO apprehend the accused Rakesh Kumar Dahiya on 13.06.2012 near Select City Mall, Saket on the basis of secret information. He has proved arrest memo f accused Ex. PW20/A, personal search memo Ex. PW20/B and his disclosure statement Ex. PW20/C. PW20 also proved DD No. 16 Ex. PW20/D regarding proceedings conducted by him.
50. Ms. Meenu Tangri (PW21) deposed that on 25.07.2012, SI Bhagwan Singh had visited her house for some inquiry. He had shown her photocopy of prepaid Enrollment Form of Airtel of mobile phone number 9560187469 in the name of Meenu Tangri d/o Sh. Sehdev Krishan Tangri r/o State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 31 of 66 WZ8990, Mukherjee Park, New Delhi. The Enrollment Form of Airtel bears her photograph but it does not bear her signatures. She had never used the above said mobile phone number.
50.1 She did not know the person in the name Ade and Rakesh. She do not know M/s Sharma Telecom, T33, Punjabi Basti, Bala Ji Nagar, New Delhi and M/s R. K. Telecom. The prepaid Enrollment Form of Airtel and copy of election Identity card had been misused by someone. The photocopy of prepaid Enrollment Form of Airtel is mark 21/A which bears her photograph at point X and it bears her signatures at point Y. The photocopy of election Identity card is mark 21/B. She had said facts to SI Bhagwan Singh and her statement was recorded by him.
51. HC Kanwal Singh (PW22) had joined the investigation of this case with SI Bhagwan Singh. His deposition is on the same footing as of SI Bhagwan Singh (PW18)
52. Sh. Jagjit Singh (PW23) deposed that in the month of July 2012, police came to him and made inquiries from him about two shops. He told the police that one of those two shops was let out to a doctor and the second shop was let out to Pradhan Electronics. He never let out any shop to M/s Sharma Telecom and M/s R. K. Telecom. Police came to him to inquire about M/s Sharma Telecom and M/s R. K. Telecom. His statement was recorded to this State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 32 of 66 effect.
53. All the incriminating evidence in the statement of Prosecution Witnesses was explained u/s 313 Cr.PC to all the accused separately. Accused Giwa Kadeejat u/s 313 Cr. PC stated that she has been falsely implicated in the present case. No contraband was recovered from her possession. She was apprehended at about 12 noon while coming from saloon and when she reached Africa Avenue, two persons who came by an auto grabbed her from her back and they asked her about her passport and other documents. She told them she was not having any passport and other documents with her. In the meantime, two more persons in plain clothes came there and they slapped her and remained there for 10 minutes and thereafter, they took her to their office. All the four persons were male. At that time, she was having one Micromax white colour mobile having one SIM. No sealing and seizure proceedings were carried out in her presence. Her signatures were obtained on various blank papers, semiwritten papers, written papers and white cloth under pressure, threat and duress. The police officials have manipulated and fabricated all the documents to implicate her in the present case.
State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 33 of 66 53.1 Accused Sheetal stated in her statement u/s 313 Cr. PC stated
that she has been falsely implicated in the present. No contraband was recovered from her possession. She did not know any Nigerian lady at the time of arrest. She only came to know about her and name when she met her in the PS/office for the first time. She was not apprehended from the spot . She was not present at the spot nor she was apprehended by the police officials. She further stated that she alongwith her mother were taken up from her house at R26 Khirki Extension by some persons who were in civil dress without assigning any reason on the pretext of some inquiry and signing some documents and thereafter, they assured that the will be relieved after some time. At that time police officials had also taken her mobiles make Samsung and Blackberry with SIMS and one mobile from her mother which were not shown by the police officials . Lateron, her mother was relieved and she had been falsely implicated. She was illegally kept by police officials in their office. No sealing and seizure proceedings were carried out in her presence. Her signatures were obtained on various blank papers, semiwritten papers, written papers and white cloth under pressure, threat and duress. 53.2 Accused Rakesh in his statement u/s 313 Cr. PC stated that he has been falsely implicated in the present case. He did not know Giwa or ADE. He was never found in her car alongwith Sheetal in front of Irish Hotel State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 34 of 66 on 23.04.2012 at 03:00pm. Police has falsely implicated him by fabricating disclosure statement of Sheetal. AT narcotic Cell, he was forced to sign some blank and semiprinted papers which were later on converted into different documents to make out a false case against him.
54. Accused Giwa Kadeejat preferred not to lead any defence evidence. Accused Sheetal and Rakesh preferred to lead defence evidence. However, no defence witness has been produced on behalf of accused Rakesh. Accused Sheetal has produced her mother Smt. Nisha (DW1), who deposed that on 23.04.2012 , she was present with her daughter at her rented house at Khirki Extension, Malviya Nagar. 34 persons came to her house. They took their bags and asked them to sit in an auto and thereafter, after some distance they took them in their vehicle to the police station. She was asked to sit in one room and sheetal was asked to sit in another room. They left her after two houses and told that Sheetal will be freed in evening hours. On the next day, she visited the police station to inquire as her daughter Sheetal was not freed by them. She came to know that Sheetal had been arrested in the present case.
54.1 In crossexamination, she deposed that she knew accused Rakesh as he was also residing with them in the said rented house. Thereafter, she denied the suggestions put to her by Learned Addl. PP . State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 35 of 66
55. I have heard arguments advanced by Sh. M. K. Khanna , Learned counsel for accused Sheetal and Sh. Deepak Ghai Ld. counsel for accused Rakesh and Sh. F. M. Ansari Ld. Addl. PP for the State and have gone through the evidence, material on record carefully and judgments too as well as relevant law.
56. Learned counsel for accused Rakesh Dahiya argued that accused Rakesh Dahiya has been falsely implicated on the basis of disclosure statement of coaccused Sheetal and disclosure statement of co accused cannot be used against accused Rakesh Dahiya in view of judgment of Rajasthan High Court in Kishan Singh vs State of Rajasthan 1995 Crl. General 3947 while citing judgment of Kashmira Singh vs State of MP and Hari Charan Kurmi vs State of Bihar has made observation that confession may be regarded as evidence in the generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the act. The confession of a coaccused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 36 of 66
57. It is further argued that prosecution has miserably failed to establish the identity of the accused Rakesh Kumar Dahiya to show that accused is the same person, who absconded from the spot because it is not the case, where secret informer informed about the description/complete details of the accused. It is not the case where accused was previously known to the police party. There was no TIP of accused Rakesh Kumar Dahiya sought to be conducted by Inspector Bhagwan Singh (PW18). It is not the case where accused was previously known to the police party. There was no TIP proceedings of the accused Rakesh got conducted by Inspector Bhagwan Singh (PW18).
58. It is settled law that first time identification, during the trial, by th witnesses without any prior TIP at the stage of the investigation after arrest of the accused, it has no value, if the accused was not previously known to the witnesses or if no description whatsoever came on record regarding the physical description of the accused during the investigation. Reliance is placed upon in a case Ashok Kumar vs State of Haryana where accused was acquitted on the ground as prosecution failed to establish the identity of the accused.
59. It is further submitted that Ct. Rekha Rani (PW4), HC Sanjeev (PW12) failed to tell the colour of the clothes worn by accused Rakesh on the State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 37 of 66 alleged date of incident. Even SI Paramjit Singh (PW9) could not tell about the make or colour of the vehicle but Ct. Rekha (PW4), to whom the secret information was disclosed by SI Pramjit Singh (PW9), stating during cross examination that IO had told her about the colour of the vehicle. The most important thing is that prosecution never tried to hide the identity of the secret informer and it was being told by Ct. Rekha (PW4), during crossexamination, that she was standing point X, when SI Paramjit Singh (PW9) and secret informer when the vehicle was pointed out by secret informer point out vehicle used by the accused Rakesh Kumar and she saw the accused persons when vehicle of the accused passed in front of her. She further stated that vehicle took a U turn from the point in the site plan where Krishna Nagar is written. HC Sanjeev (PW12) stated during crossexamination that he first time saw the vehicle at the pointing out of SI paramjit Singh (PW9), when vehicle was coming from East side and at that time SI Paramjit Singh pointed out towards the vehicle, secret informer was present alongwith Paramjit Singh (PW9).
60. SI Paramjit Singh (PW9) stated that he did not see any member using mobile phone. He did not ask from any police official about the mobile phone. . Even Inspector Bhagwan Singh (PW18) admitted during cross examination that he did not collect any evidence to connect accused Rakesh with co accused Sheetal. There is nothing on record or no evidence was State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 38 of 66 collected by prosecution during the whole investigation to prove that accused Rakesh was involved in any illegal activity of supplying Cocaine to any one or was in contact with coaccused Giwa at any point of time to get supply of Cocaine. No positive or affirmative evidence has been collected by the prosecution that accused Rakesh Kumar Dahiya hatched any conspiracy with coaccused Sheetal and Giwa Kadeejat to do any illegal activity at any point of time.
61. Learned counsel for accused Sheetal argued that accused Sheetal examined Smt. Nisha as DW1, her mother, who has categorically stated that Sheetal was lifted from her house and she has been falsely implicated. As per the prosecution story, secret informer was interrogated by SI Paramjit Singh (PW9) and also by Inspector Kuldeep Singh (PW17), however, the said secret informer did not disclose the name of accused Sheetal. As per the secret information, the informer has stated only regarding car number, however, he did not state regarding the colour make or model of the car.
62. It is further argued that there is no document on record to prove that secret information, a written information was sent to any Gazetted officer nor there is any record regarding the written permission/order/direction for taking necessary action. No DD entry was recorded regarding conveying the State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 39 of 66 information to ACP. With regard to the secret information, there are material contradictions in the deposition of prosecution witnesses. SI Paramjit Singh (PW9) stated in his examinationinchief that he has made some inquiries form the informer and being satisfied, he produced the informer before Inspector Kuldeep Singh (PW17) in his room and he had also made some inquiries from the informer and was satisfied about the same. Inspector Kuldeep Singh had also telephonically informed Sh. Bir Singh, ACP Narcotic Cell about the information and after being satisfied, the ACP had also directed him for taking appropriate legal action on the said information.
63. As per the prosecution story, accused Rakesh used to supply Cocaine to customers outside Delhi after taking from Nigerians. SI Paramjit Singh (PW17) stated that he alongwith secret informer came to his office and informed him that a person namely, Rakesh, who is resident of Shahpur Jat and is also having some place in Malviya Nagar, Delhi, is indulged in the sale and supply of Cocaine after procuring the same from Nigerian nationals. PW 17 has nowhere stated in his examination as to where the accused Rakesh used to supply the Cocaine. Sh. Bir Singh (PW13) has deposed that Inspector Kuldeep Singh had informed him telephonically at about 12:45pm and did not come to inform him in person. Though, he was present in the office on that day. He did not ask about the whereabouts where the accused State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 40 of 66 Rakesh used to supply Cocaine in Delhi. As such mandatory requirement of Section 42 of NDPS Act has not been complied with.
64. It is further submitted by Learned counsel for accused Sheetal that there are contradictions regarding the search of the accused Giwa Kadeejat and Sheetal stating that during the search of accused Giwa, accused Sheetal was standing outside the vehicle. As per prosecution story, when the accused Giwa Kadeejat came, accused Sheetal was also sitting inside the vehicle and when the search of accused Sheetal was made, accused Giwa was sitting inside the vehicle. This creates serious doubts on the search and preparation of documents. Ct. Rekha (PW4) in her cross examination has stated that she did not remember the dress which Sheetal was wearing at that time or even the colour of her clothes.
65. Raiding party consisting of five persons and the said raid was under the supervision of Inspector and ACP but none of the member of the raiding party informed either to ACP or Inspector that they were having mobile phone. As such prosecution story is full of doubts and no contraband was recovered from the possession of the accused Sheetal. In fact, she did not know any Nigerian lady at the time of arrest and she came to know about the name when she meet her in the police station for the first time. The accused Sheetal alongwith her mother were taken away from her house no. at R26, State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 41 of 66 Khirki Extension, New Delhi by some persons who were in civil dress without assigning any reason on the pretext of some inquiry and signing some documents and thereafter they had assured that they will be relieved after sometime. At that time, police officials had also taken her two mobiles make Samsung and Blackberry with SIMS and one mobile from her mother which were not shown by the police officials at the time of her personal search. Lateron, mother of accused Sheetal was relieved in the evening hours and accused Sheetal had been falsely implicated in this case.
66. Keeping in view of the submissions made by learned counsels for the accused persons and material on record, as per the prosecution version in brief is that on 23.04.2012, on the basis of secret information SI Paramjit Singh conducted a raid alongwith other police officials and secret informer reached at a place where accused Rakesh alnogwith co accused Sheetal came at IRIS Hotel, Safdarjung Enclave on the way towards opposite Krishna Nagar on his car no. DL8CT3159 to receive Cocaine from Nigerian lady Giwa Kadeejat. The said information was registered vide DD no. 15 . Copy of the same was presented to Inspector Kuldeep Singh (PW17), who directed to take necessary action u/s 42 of NDPS Act and same was forwarded to ACP on the direction of Sh. Bir Singh, ACP, SI Paramjit Singh constituted a raiding team alongwith HC Sanjeev Kumar, HC Harender Singh, State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 42 of 66 Ct. Manjeet Singh and W/Ct. Rekha and IO took Field Testing Kit and electronic weighing machine on a private vehicle no. DL4CNB2965 alongwith Ct. Paramjit Singh being driver vide DD no. 16 at 01:30pm and went via Pusta Road, ITO, India Gate, Shahjahan Road, Aurobindo Marg. At around 02:55pm, one golden colour I20 car no. DL8CT3159 came from Kamal Cinema side at a distance of 1520 meter. Secret informer pointed out towards car driven by accused Rakesh and he was recognized by secret informer and the lady sitting with him as Sheetal and the informer went from there. Meanwhile, one Nigerian lady came from Krishan Nagar side and stopped near the car and Sheetal came down from the car and Nigerian lady took out one small packet from her handbag and gave it to Sheetal which she kept in her hand purse and took some amount from Rakesh and gave the same to Nigerian lady. Meanwhile, SI Paramjit Singh alongwith members of raiding team surrounded them and accused Rakesh ran away from the spot with his car and SI Paramjit Singh apprehended Giwa Kadeejat and Sheetal at 03:00pm. On inquiry, accused Giwa Kadeejat disclosed the name of co accused Rakesh. Then Notice u/s 50 of NDPS Act was served upon accused which has been duly replied by accused Sheetal vide Ex. PW4/D stated that she has received the carbon copy of notice and understand the same as well as meaning of gazetted officer and the magistrate. She was also told about State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 43 of 66 her legal rights and she did not want to be searched before gazetted officer or magistrate and her search can be taken. Ct. Rekha (PW4) testified that carbon copy of Notice u/s 50 of NDPS Act was given to the accused Sheetal and one purse containing Rs. 2690/some documents, keys, eight golden cololur ring, two golden ear ring, two golden colour chain with locket and one mangasutra were recovered. Eight golden cololur ring, two golden ear ring, two golden colour chain with locket and one mangasutra were recovered which was converted into cloth pullanda.
67. Learned counsel for accused stated that Notice u/s 50 of NDPS Act has not been complied with. On this, it is revealed that a separate legal Notice u/s 50 of NDPS was served upon the accused Sheetal which was bearing her signatures as well as signatures of police officials. Accused Sheetal herself replied on the notice. So far as the compliance of Section 50 of NDPS Act is concerned, it is the prosecution story that when accused Sheetal was apprehended, she was having a small hand purse in which a transparent polythene tied with rubber band containing white colour powder was recovered . The said powder was tested on a Field Testing Kit and found to be Cocaine. Accused Sheetal was apprehended at 03:00pm. Notice u/s 50 of NDPS Act was served upon after her apprehension and it was being duly replied . Though the recovery of the Cocaine is not from the 'person' of the State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 44 of 66 accused but contraband substance has been recovered from her small hand purse which was carrying by her and the search was conducted.
68. The search was conducted subsequent to the service of notice under Section 50 of NDPS Act. In the case of Jernail Singh vs. State of Punjab AIR 2011 SC 964, it was observed;
"13...The aforesaid Section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted. This court in the case of Kalema Tumba vs. State of Maharastra : (1999) 8 SCC 257 discussed the provisions pertaining to 'personal search' under Section 50 of the NDPS Act and held as follows ; ...if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person."
69. The Hon'ble Supreme Court has taken this consistent view and had earlier observed in the case of State of H.P. vs. Pawan Kumar (2005) 4 SCC 350 and also in Megh Singh vs. State of Punjab (2003) 8 SCC 666 that a bare reading of Section 50 shows that it applies in case of personal search of a 'person'. It does not extend to a search of a vehicle or container State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 45 of 66 or a bag or premises. The learned counsel for the accused laid emphasis on the case of Gurjant Singh vs State of Punjab (Supra) and other judgments.
70. The recovery has been effected from the hand bag carried by the accused Sheetal, the Notice u/s 50 of NDPS Act have been duly served upon both the accused whereby they were informed about their legal right of search before a Gazetted Officer or a Magistrate. Therefore, there is a due compliance with the provisions in Section 50 of NDPS Act.
71. Notice u/s 50 of NDPS Act Ex. PW4/B was served upon accused Sheetal and after going through the Notice, IO/SI Paramjit Singh has written her refusal in Hindi vide Ex. PW4/D. Another Notice u/s 50 of NDPS Act Ex. PW4/A was also served upon accused Giwa Kadeejat and after going through the Notice, she has written her refusal in English vide Ex. PW6/B. Both the Notices u/s 50 of NDPS Act bears the signatures of SI Paramjit Singh (PW9) at points C. At the time of serving of Notices, 56 persons were asked to join the investigation but none agreed and left the place without disclosing their names and addresses.
72. Reply on the Notices u/s 50 of NDPS Act are stated to be verbatim but it was in the different handwritten and under the signatures of individual accused. It may be possible that the accused persons have asked State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 46 of 66 from each other as to in what manner the reply has to be given. As such after due consultation and communication to each other, they affirm to give the same reply, as is same verbatim given on the Notice u/s 50 of NDPS Act, as such same does not violate of any legal rights of the accused persons.
73. Once a person is told about his legal right of search before a Gazetted Officer or a Magistrate, the option would rest with the said person to opt for his search before a Gazetted Officer or a Magistrate or get himself searched by the officer serving him with a notice. The question is what could be a mode of a service of notice upon the accused/suspect. Section 50 of NDPS Act provides that if a suspect so requires then he has to be taken to the nearest Gazetted Officer or Magistrate for search without any unnecessary delay. The question would arise about the mode of communicating to the suspect about his legal right of having his search before a Gazetted Officer or a Magistrate. The Hon'ble Supreme Court in the case of Krishna Kanwar vs. State of Rajasthan (2004) 2 SCC 608, has held that there is no specific form prescribed or initiated for conveying the information required to be given under Section 50 of NDPS Act.
74. Under the facts and circumstances of the case, Notices u/s 50 of NDPS Act in very categorical terms conveys to the accused that it was their State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 47 of 66 legal right to conduct the search of the police party before their search is conducted and they can also have their search before a Gazetted officer or a Magistrate and the presence of Gazetted Officer or a Magistrate can be made available and they be searched in the presence of Gazetted Officer or Magistrate. Not only this, they were also informed and given the option to conduct the search of private vehicles of the police officials before their search. Both the accused persons did not opt for the search of the police officials or their vehicles. From the language used in the reply of the notice, it can be inferred that the accused were apprised about their legal right of search before a Gazetted Officer or Magistrate, although it was a case of recovery of contraband from the bags carried by the accused. Still, there is a due compliance of section 50 of NDPS Act.
75. Accused Giwa Kadeejat in her statement u/s 313 Cr. PC stated that she was apprehended at about 12 noon while coming from saloon and when she reached Africa Avenue, two persons came in an auto and grabbed her from her back and asked her about her passport and other documents. Accused Sheetal stated that she was apprehended by police officials for her home. She alongwith her mother were taken up from her house at R26, Khirki Extension by some persons, who were in civil dress without assigning any reason on the pretext of some inquiry and signing some documents and State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 48 of 66 thereafter, they had assured that they will be relieved after some time but there is no cogent evidence to this effect brought on record.
76. Accused persons never took the plea that they were not well conversant with the language of Notice or the language of the reply to the Notices. Hence, they were wellconversant to the Hindi and English language. Accused Sheetal had taken a plea that she alongwith her mother was lifted from her house. Her mother Ms. Nisha has appeared as DW1. In her cross examination, she stated that she knew accused Rakesh Kumar as he was also residing with them in the rented house. It is denied that 23.04.2012 at about 03:00pm, opposite Irish Hotel, way to Krishna Nagar, Delhi , accused Sheetal alongwith accused Rakesh had come in a car no. DL8CT3159. It is denied that she was apprehended alongwith one Nigerian lady and accused Rakesh had fled away in the said car from the spot. It is denied that cocaine was recovered from the possession of accused Sheetal by the police officials of Narcotic Cell, Crime Branch. Though, they have denied that no Notices u/s 50 of NDPS Act was served to them nor their signatures on the aforesaid Notices were obtained.
77. The next contention raised by Learned defence counsel that prosecution is not diligence to cite public witnesses. Though, they have interrogated number of public witnesses at different occasions. State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 49 of 66
78. It has been argued by prosecution that IO has made requests to join the proceedings to the public persons but they had explained their justified excuses, as such they were not joined public witnesses to the proceedings. Joining of public witnesses will give more strength to the case of prosecution. It cannot be assumed that IO is not intending to join public witnesses throughout from the date of apprehension, recovery, seizure and arrest. IO has attempted to cite public witnesses during the course of investigation as it will create more complications or will have more burden while being recording the particulars of public persons also whether they will be available to join the investigation.
79. It is a case where the accused persons were nabbed on the basis of secret information. The information was being developed. Raiding party was prepared consisting of police officials including female police official i.e. lady Ct. Rekha (PW4). As per secret information, they have visited to the place where accused Giwa Kadeejat and Sheetal were apprehended. Co accused Rakesh Kumar was able to flee away from the spot. All the legal aspects are being obliged by the investigating agencies from the beginning i.e. from the apprehension of accused till the conclusion of the investigation and arrest of the accused persons by complying mandate of NDPS Act. SI Paramjit Singh (PW9), Ct. Rekha (PW4), HC Sanjeev (PW12) have stated State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 50 of 66 repeatedly that they have asked public persons to join the proceedings at different stages but for one reason or the other, they have given the excuses, as such public witnesses have not been cited.
79. In case Union of India Vs Victor Namdi Okpo 2010 (4) JCC (Narcotics) 188 wherein their Lordships had held that the nonjoining of public witnesses by the prosecution is not fatal. Hence, the depositions of the police witnesses cannot be disbelieved merely for nonjoining of public witnesses.
80. The joining of public witness is advisable but it is not possible to engage public witness in the investigation all the time. In the case of Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746, it was contended that the evidence of the official witness cannot be relied upon as their testimony had not been corroborated by any independent witness. The Hon'ble Supreme Court, rejecting the contention, held as under:
"19....In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced.
State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 51 of 66
20. We cannot forget that it may not be possible to find independent witness at all place, at all time. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police office is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
81. Learned defence counsel has pointed out some inconsistencies in the statement of police witnesses such as, colour and dress of the clothes worn by the accused persons, description of secret informer, time of information, time of reaching at the spot, registration number of vehicle, log book etc. However, all these contradictions is to be looked into and consider whether they are minor or major one. The main aspect of the case of the prosecution is recovery of 10 grams of Cocaine from the possession of accused Sheetal and 40 grams of Cocaine from the possession of accused Giwa Kadeejat. Apart from that CDR of the call details alongwith Customer Application Form (CAF), which revealed that mobile phone number where State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 52 of 66 they have communicated time to time with respect to the narcotic contraband. As such contradictions, as alleged, no doubt is there in the deposition of the witnesses, though, the defence counsel has forgotten the fact of the other side that Court has to see the nature of the case whereupon the FIR was registered, when the prosecution witnesses being deposed before the Court and they have perceptions and deception of the events and to consider their understanding of the events and its reproduction. They cannot keep all the things in the chronological order as computer or robot. This contention seems to be just as a defence and to give shield to the accused persons.
82. No doubt, the witnesses were unable to cited the log book of the vehicles which they have used for conveyance purpose but it is to be noted that all the witnesses have been consistently deposed for the use of said private vehicles to reach the spot and they have also described the vehicles used by them in DD no. 16 Ex. PW9/B and DD no. 25 vide Ex. PW15/ A. Since these vehicles were used for laying hand to apprehend the accused persons with contraband substance, citing of the log book will not be denied to the recovery of contraband substance. The statement of these recovery witnesses cannot be brushed aside simply on account of the fact that the police party had not brought the log book of the vehicles. The contradictions which the learned defence counsels have referred to are not major one. The State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 53 of 66 prosecution witnesses have corroborated each other about the receiving of information; formation of a raiding team; arrival of the entire raiding team in the private vehicles at the spot; about the time of arrival at the spot; about the time of arrival of the accused at the spot; about the hand purse of accused Sheetal and recovery of Cocaine, which was proved by the police officials on the basis of its testing kit carried by the Investigating Officer. The report u/s 52 of NDPS Act was sent to the senior officers regarding arrest and seizure of 50 grams of Cocaine and separate report u/s 57 of NDSP Act regarding the arrest and seizure was sent to the immediate superior official. They all have been consistent in deposing regarding search, seizure and arrest as well as compliance of Notice under section 50 of NDPS Act, which was served upon the accused persons before conducting the search and further that accused persons have given reply to the notice themselves of their own handwriting. Therefore, so far as the question of recovery is concerned, there is no reason to disbelieve the statement of recovery witnesses. They have no motive or link to implicate the accused persons falsely. There is no allegation of any enmity or prejudice against the accused persons . In such a situation it is hard to accept the argument of the defence counsels that the accused have been falsely implicated in the present case and accused Sheetal has been picked up from her house and thereafter, they have been falsely implicated in State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 54 of 66 this case. Accused Sheetal has brought only her mother Ms. Nisha in witness box as defence witness, who is an interested witness, being mother of accused Sheetal, in comparison of testimony of prosecution witnesses which are the witnesses of recovery, apprehension of accused and connectivity of call details, vehicle etc. Ms. Nisha (DW1) has stated that coaccused Rakesh Kumar Dahiya was also living in the same premises alongwith Sheetal, as such it also revealed the conveyance of the accused Sheetal and Rakesh Kumar Dahiya. They have come at the spot in i20 car bearing registration no. DL 8CT3159.
83. Even though the accused persons have not moved any application to summon the log book which has been used by the police officials and the contention of nonproduction of the same in the Court will not hamper the entire prosecution case. Though the police arrived at the spot in the private vehicle no. DL AC N3 2965 and apprehended the accused persons alongwith contraband substance, as such maintaining of log book does not arise.
84. It is further argued that there is any delay in the registration of the FIR and certificate u/s 65B of Indian Evidence Act has not been filed. Since, it was computerized FIR, it was a requirement to be present in order to compliance with Section 65B of Indian Evidence Act, but in the present case State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 55 of 66 no such certificate has been submitted.
85. HC Upender has proved FIR Ex. PW5/A. He also made endorsement on the rukka which is Ex. PW5/B. In crossexamination, PW5 deposed that the raiding party members were not present in the police station prior to the registration of this FIR. HC Upneder (PW5) is the Duty Officer at Police Station Crime Branch, Malviya Nagar, who has deposed that on receipt of rukka sent by SI Paramjeet Singh, he had got registered FIR No. 114/12 through computer operator of police station. Since, it is a computerized FIR, there was requirement of certificate u/s 65 B of Indian Evidence Act and in the present case, no certificate has been submitted.
86. Considering the submission of the learned counsels on this issue, the electronic record is vulnerable to manipulation, therefore, its veracity and reliability is always cause of concern. Therefore, Section 65B of Evidence Act,1832 was incorporated and it was mandatory to submit a certificate under Section 65B of Indian Evidence Act for admissibility of electronic record as secondary evidence. In the case where the computer has been utilized only as a tool as a typewriter for converting the text from one form to other such as a letter, then software of the computer does not have much role to play and the only function the computer plays is that of a typewriter. For example in case of registration of FIR, the writer of the FIR on State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 56 of 66 the computer types the contents of the FIR, take out a print of the said documents/FIR verifying the text which has been generated and authenticate the same by putting signature. The typing and taking out the print of the FIR simultaneously diminish the role of computer as a mechanical device nor the computer is used in such a situation for storage of any data which is reproduced later on. Typing of an FIR, taking out its print and signing of the text by the concerned person simultaneously is equivalent to typing a letter on a typewriter. Therefore, in such a case, in my considered view, there is no requirement of any certificate under section 65B of Indian Evidence Act with regard to an FIR which is a computerized print out. FIR has been signed by HC Upender (PW5), who identified his signatures on the same. Therefore, in these circumstances and discussion, the contention of Learned defence counsel does not hold any water.
87. There is no delay in sending the samples at the FSL. As per prosecution case as well as deposition of prosecution witnesses, neither there is any delay in registration of FIR nor any delay in sending the sample to the FSL. Even though, the samples, case property were already in intact condition sealed with the seal of 8APSNB DELHI was affixed and sent to the FSL for its chemical examination. The accused Sheetal and Giwa Kadeejat were apprehended at the spot at 02:55pm. The arrest of accused Sheetal was State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 57 of 66 made at 01:00am. Accused Giwa Kadeejat was arrested at 12:05am on 24.04.2012. The information of apprehension and recovery was received in Police station vide DD no. 24 dated 25.04.2012 at 07:30pm. The time of occurrence was at around 03:00pm. The FIR was registered on 23.04.2012 at 19:30hours as there is no delay in registration of the FIR. The case property, FSL form, copy of seizure memo were sent to FSL on 26.04.2012 through Ct. Manjeet in intact condition vide RC Ex. PW2/D.
88. In the case of Hardip Singh vs. State of Punjab (2008) 8SCC 857, the Hon'ble Supreme Court while dealing with the question of delay in sending of sample of Opium had pointed that, "it was of no consequence for the fact that recovery of said sample from the possession of the appellant had been proved and established by cogent and reliable evidence and that apart it had come in evidence that till the date all parcels of sample were received by the chemical examiner, the seal put on that parcel was intact".
89. A similar contention was also rejected in the case of Mohan Lal vs. Rajasthan (2015) 6 SCC 222. So, delay in sending the sample parcel to FSL, would not be fatal to prosecution if the link evidence rule out any tampering with the case property. It has come in the statement of prosecution witnesses in so many times in so many words. Hence, case property i.e. State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 58 of 66 sealed parcel was sent to FSL having seal of 8APSNB DELHI in intact
condition, same has been deposited at FSL against the entry at 1401 in register no. 19 in intact condition without any delay.
90. Thus, delay in sending the pullandas to FSL does not give much importance or significance, even there is delay of 1012 days. In catena of judgments Hon'ble Supreme Court and Hon'ble Hon'ble High Court has condoned the delay of a month sending to the laboratory
91. The next contention raised by Learned defence counsel is that the prosecution case is motivated and investigation is defective and there a deliberate attempt to save the source. The investigating agencies do not proceed with the investigation with same zeal and enthusiasm once a recovery of contraband has been effected and the same thing has happened in the present case. The Investigating officer appeared to have made half hearted attempt/efforts to apprehend the source, on receipt of contraband by the accused persons and to whom it was being supplied.
92. To this effect, it is evident that the disclosure statement of accused persons was recorded. Police has also tried to lay hands to source i.e. ADE and Perveen who is alleged to supply the Cocaine to the accused Giwa Kadeejat and police remand was taken to know the source to whom it was being supplied and procured. But nothing incriminating was found. Even State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 59 of 66 though it is a matter of evidence that accused Giwa Kadeejat has supplied 10 grams Cocaine to the accused Sheetal and 40 grams Cocaine has been recovered from the possession of accused Giwa Kadeejat. Accused Rakesh Kumar had paid the amount of Rs. 20,000/ for purchase of 10 grams Cocaine through accused Sheetal. Rs. 20,000/ were also recovered from the possession of accused Giwa Kadeejat and 10 grams cocaine was recovered from Sheetal. The contention that the source and recipient of the narcotic contraband has not been worked out by prosecution, is not worthy. It is a matter of fact that accused Giwa Kadeejat is the primary source of the contraband and recipient is Sheetal, accused Rakesh Kumar is the facilitator to funds for purchase of the Cocaine or narcotic drugs as well as supplier to customer. As such, question of source and recipient , there is no consequence and it is being unwarranted. Disclosure statement of accused persons have been revealed the source and recipient. Therefore, it cannot be said that investigating agency has not worked on this aspect. Accordingly, submission made by Learned defence counsel is nonplausible and unsustainable in law.
93. Sections 35 and 54 of NDPS Act raise statutory presumption of conscious possession where the physical possession of contraband has been established. Section 35 of NDPS Act provides that Court shall presume the State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 60 of 66 existence of culpable mental state in any transaction for an offence under this Act, although the accused Sheetal lead a defence to prove that he had no such mental state. Section 54 of NDPS Act, interalia, provides that the accused persons are presumed to have committed an offence under the Act in respect of any narcotic drug etc. if the accused persons fail to account satisfactorily for the possession thereof. In case Chand Singh vs. NCB (supra), it has been held that where physical possession of the contraband has been established then law raises statutory presumption of conscious possession. Once the prosecution has established physical possession of the contraband, then it would be for the accused to rebut the presumption of "conscious possession". It has been held in the case of Dharampal Singh vs. State of Punjab (2010) 9 SCC 608, that once possession is established the court can presume that accused had culpable mental state and have committed the offence. In the case of Madan Lal vs. State of H.P. (2003) 7 SCC 465 also it has been observed that once a possession is established, the person who claims that it was not the conscious possession has to establish it, because how he came to be in possession is within his special knowledge. In the present case not only the possession has been proved by the State, but the circumstances also establish that accused persons had knowledge of State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 61 of 66 concealment of contraband substance in their bag which they confined.
94. So far as the role of accused Rakesh Kumar Dahiya is concerned, SI Paramjit Singh (PW9) has categorically stated that accused Sheetal arrived at the spot in i20 car bearing registration no. DL 8CT3159 alongwith his associate Rakesh Kumar Dhaiya, who was also living with her in livein relation at her residence as deposed by Ms. Nisha (DW1), mother of accused Sheetal. Accused Sheetal in her disclosure statement had categorically testified the role of accused Rakesh Kumar Dahiya as using her for other the purpose for supplying of drugs also. The said car was also purchased by him from Sh. Balwan Singh Goyal (PW6) who categorically stated that he has sold his car to accused Rakesh Kumar Dhaiya against the considerations which was paid by him through cheques through Kotal Mahindra Bank from the account of accused Rakesh Kumar Dahiya. Sh. Shashi Lov (PW16) Deputy Manager, Kotak Mahindra has testified that alongwith documents Ex. PW16/B annexed with letter dated 11.05.2012 Ex. PW16/A are pertaining to the account no. 01720120063720 which belong to accused Rakesh Kumar Dahiya and his statement of account from 01.01.2015 to 21.09.2015 is Ex. PW16/C. PW16 has not been cross examined by defence.
State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 62 of 66
95. So far as the call details pertaining the mobile phone number 8587079057 of accused Giwa Kadeejat and on verification, it was testiifed by Sh. Anuj Bhatia (PW11) that it was in the name of Ravi Ranjan, s/o Brijakishore Singh r/o 108, Singha AnchalKonch, District, Gaya, Bihar. PW 11 further testified that as per copy of Customer Application form, CDR and ownership of mobile phone are Ex. PW11/C to E alongwith certificate u/s 65B of Indian Evidence Act Ex. PW11/A, the subscriber is Ravi Ranjan. The Call detail chart including the location of the aforesaid mobile phone on 23.04.2012 at around 15:06 hours is at near around the place of occurrence. Though, on the said date, time and place, it was located at Safdarjung Enclave area. The mobile phone number 9810652224 pertains to accused Rakesh Kumar Dahiya as deposed by Sh. Vishal Gaurav (PW10) Nodal Officer, Bharti Airtel Ltd. As per deposition of PW10 the mobile phone number 9810652224 is in the name of accused Rakesh Kumar Dahiya s/o Azad Singh r/o H. NO. 190A, Shahpur Jat Village, Delhi on 25.11.2011 and proved his Election Icard as identity proof vide Ex. PW10/B, Customer Application form Ex. PW10/A. PW10 issued certificate u/s 65B of Indian Evidence Act regarding call details Ex. PW10/D and relevant documents of the said mobile phone is Ex. PW10/E. PW10 also brought the Cell ID chart of the mobile phone Ex. PW10/F. The said mobile phone of accused Rakesh State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 63 of 66 Kumar proved to be located the relevant date, time and place i.e. Safdarjung Enclave from where he has fled away and also connected that mobile phone of ADE, who is a source of supply with mobile phone number 9560187460, which is in the name of Ms. Meenu Tangri, who was examined as PW21, who deposed that she never used the mobile phone number 9560187460. She did not know the person in the name of ADE and Rakesh Kumar. She did not know M/s Sharma Telecome and M/s R. K. Telecom. The prepaid Enrolment form of Airtel and copy of election identity card had been misused by someone which are Ex. 21/B. Her examinationinchief is unrebutted.
96. Sh. Jagjit Singh (PW23) deposed that he never let out any shop to M/s Sharma Telecom and M/s R. K. Telecom at any occasion.
97. Accused Sheetal in her statement u/s 313 Cr. PC regarding use and occupying of vehicle bearing no. DL 8CT3159 alongwith its coaccused Rakesh Kumar Dahiya and same was seized vide seizure memo Ex. PW18/E had not given any explanation except simply denial. Accused Rakesh Kumar Dahiya also put all this incriminating evidence u/s 313 Cr. PC. So far as the call detail locations as well as connectivity with accused Giwa Kadeejat, Sheetal and Rakesh Kumar Dahiya simply denied without any cogent explanation. Though the mobile connectivity, as per CDR and disclosure statement of accused persons and location chart revealed throughout actively State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 64 of 66 communication by accused Rakesh Kumar Dahiya with accused Giwa Kadeejat and Sheetal and other customers, same has not been ruled out by any oral or documentary evidence.
Conclusion
98. In view of aforesaid discussion and judgment cited, this Court has come to the conclusion that prosecution has proved its case against accused Sheetal for commission of an offence punishable u/s 21 (b) and 29 of the NDPS Act for purchasing and possessing 10 grams Cocaine (intermediate quantity) from co accused Giwa Kadeejat on payment of Rs. 20,000/ without any permission or licence and in contravention of Section 8 (c) of the Act and for abetment and criminal conspiracy with other accused persons.
99. The prosecution also proved its case against the accused Rakesh Kumar Dahiya for commission of an offene punishable u/s 25 & 29 of NDPS Act being the owner of vehicle no. DL 8CT3159 make i 20 Hyundai and knowingly used the said vehicle in the commission of the offence and also abetted and hatched criminal conspiracy with other accused persons.
State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 65 of 66
100. Accused Sheetal is held guilty and convicted for the offence punishable u/s 21 (b) and 29 of the NDPS Act and accused Rakesh Kumar Dahiya is held guilty and convicted for the offence u/s 25 & 29 of NDPS Act.
Let they be heard on the point of sentence.
(announced in the (Dr. Satinder Kumar Gautam) open Court on Special Judge (NDPS) st 01 November 2017 ) South District: Saket State vs Giwa Kadeejat & ors. SC NO. 7540/2016 page 66 of 66