Delhi District Court
State vs . Sharno Devi on 11 October, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE04, PATIALA HOUSE
COURTS, NEW DELHI.
Presided by: Ms. Vijeta Singh Rawat
State Vs. Sharno Devi
FIR No. 92/08
U/S 21/61/85 NDPS Act
PS Inder Puri.
JUDGMENT
1. Case ID No. of the case. :02403R0066632001
2. The date of commission :26.07.2008
of the offence.
3. Name & address of complainant :Anand Prakesh, PS Inder Puri.
4. Name & address of accused :Smt. Sharno Devi W/o Late of
accused Sh. Prem Chand, R/ D513, J. J.
Colony, Inder Puri, New Delhi.
5. Offence complained :U/s 21/61/85 NDPS Act
6. The plea of the accused and :Not guilty.
his examination.
7. The final order. :Acquitted.
8. The date of such order. :11.10.2013
9. Date of institution. :12.02.2009
10. Date on which the judgment :09.10.2013.
has been reserved.
State Vs. Sharno Devi Page 1/11
FIR No. 92/08
BRIEF FACTS/ STATEMENTS OF THE REASONS FOR THE DECISION.
1. The present criminal case arises out of FIR u/s 21, The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) against accused Sharno Devi. It has been alleged that on 26.07.2008 at 09.45 pm at Kachaa Rasta, D Block falling within the jurisdiction of Police Station Inder Puri, the accused was found in possession of 15 gm of smack containing diacetylmorphine and alprzolam with purity percentage of 1.3 % and 4.6 % ,respectively, making the net recovery to be 0.86 gm in contravention of notification issued by Delhi Administration.
2. On completion of investigation, charge sheet was filed on 12.02009 against the accused for offence punishable u/s 21 of the Act. Documents in compliance of Section 207 Cr.P.C were furnished on 19.02.2010.
3. Since, the Ld. Predecessor of this Court, was of the prima facie opinion that offence punishable u/s 21 of the NDPS Act was made out, notice u/s 251 Cr.P.C was framed under the aforesaid section on 29.09.2011 to which the accused pleaded not guilty and claimed trial
4. Thereafter, prosecution examined the following witnesses in State Vs. Sharno Devi Page 2/11 FIR No. 92/08 support of its case.
I. PW2 ASI Kusum/member of raiding party who stated that on 2627.07.08, she alongwith SI Anand Prakash and Ct. Satish was on patrol duty; that at 09.00 pm they reached at CBlock, J. J. Colony; that at about 09.30 pm, one secret informer informed SI Anand Prakash that a lady will come from the side of D Block towards Railway Bridge, Narayna with smack; that at C Block Police Booth, Ct. Mahavir and Ct. Hari Ram also joined and were briefed; that SI Anand Prakash asked public persons to join investigation; that they reached railway track and took positions; that accused came from the side of D Block and was identified by the secret informer; that her name was disclosed as Sarno; that she was informed regarding the secret information; that notice u/s 50 NDPS Act was served to her; that she was cursorily searched and one transparent polythene was found in the right side pocket of her suit; that Investigating Officer checked it and found it to be containing smack; that it weighed 15 gm on electronic weighing machine; that 5 gm was taken as sample and put in a polythene; that the polythene containing 5 gm was kept in a small plastic box and the remaining case property was against kept in the polythene; that they were sealed with the seal of APY which was handed over to Ct. Hari Ram; that SHO Insp. Heera Lal reached the spot and counter sealed both the samples and the case properties with seal of HL and handed over the seal to Ct. Satish; that FSL form was prepared at spot; that Investigating Officer prepared rukka and gave the same to Ct. Mahavir for registration of FIR; that Ct. Mahavir State Vs. Sharno Devi Page 3/11 FIR No. 92/08 returned to the spot after registration of FIR; that accused was arrested vide Ex PW2/B and personally searched vide Ex. PW2/D; that disclosure statement of accused Ex. PW2/C was recorded and that accused was got medically examined. The witness correctly identified the accused. She also identified the sample as Ex P1 and case property as Ex. P2. She was duly cross examined.
II. PW3 HC Satish Kumar, PW5 Ct. Mahavir,PW6 SI Anand Prakash and PW8 Ct. Hari Ram, all members of raiding party whose deposition was similar to that of PW2. They all were duly cross examined.
III. PW1 ASI Darshan Kumar/Duty Oficer who stated regarding registration of FIR Ex PW1/A and endorsement on rukka Ex. PW1/B . He was duly cross examined. Despite opportunity he was not cross examined.
IV. PW4 Ct. Roop Chand who stated that on 21.08.2008, he took the sample with seal of APY and HL alongwith FSL Form vide Road Certificate No. 49/21/08 and deposited the same at FSL, Rohini. He further stated that so long as the property remained in his possession it was not tampered with Despite opportunity he was not cross examined. V. PW8 HC Sanjeev Kumar/MHC(M), PS, Inder Puri who tendered Ex PW8/A (maalkhana register entry no. 1427) in evidence and stated that so long as the property was in his possession it was not tampered with.
VI. PW7 HC Hari Ram who tendered original intimation u /s 57 NDPS State Vs. Sharno Devi Page 4/11 FIR No. 92/08 Act which is Ex. PW7/A in evidence. He was duly cross examined. VII. PW9 Insp. Heera Lal who stated that on 26.07.2008, he went to the spot and counter sealed the case property and sample with seal of HL and thereafter, deposited the case properties in maalkhana. He was duly cross examined.
Matter had been received by way of transfer by this Court on 05.03.2013 vide order no. 06/DHC/Gaz./G3/VI.E.2(a)2013 dated 19.02.2013
6. Prosecution evidence was closed vide order dated 20.07.2013.
7. Statement of accused u/s 313 Cr.P.C read with Section 281 Cr.P.C was recorded on 05.09.2013. The accused denied the incriminating evidences against him.
8. No final arguments have been advanced by either parties
9. This Court has thoughtfully considered the submissions made and material on record.
10. Section 21 of the Act stipulates as under:
" Whoever, in contravention of any provision of this act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports State Vs. Sharno Devi Page 5/11 FIR No. 92/08 interState, exports interState or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable a. where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both."
11. Further as per Section 2 (xi) of the Act "manufactured drug" means "...(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug."
12. As per Schedule I (I) (3) (b) of Narcotic Drugs and Psychotropic Substances Rules, 1985, Diacetylmorphine is a narcotic drug including its salts, preparations, admixtures, extracts and other substances.
13. Similarly, as per Section 22 of the Act, whoever "Whoever, in contravention of any provision of this Act or any rule or order made or condition State Vs. Sharno Devi Page 6/11 FIR No. 92/08 of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports interState, exports interState or uses any psychotropic substance shall be punishable,
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;"
14. As per Section 2(xxiii)""psychotropic substance" means any substance, natural of synthetic, or any natural material or any salt or preparation or such substance or material included in the list of psychotropic substance specified in Schedule". Further as per the Schedule to the Act at Sl. No. 30 Alprazolam has been listed as a psychotropic substance. However, in the present case, accused was charge sheeted and subsequently, only charged u/s 21 of the Act. Hence, as it is not a minor offence to Section 21 of the Act, this Court is refraining from opining anything on aforesaid offence.
15. The case of prosecution solely rests upon the testimonies of police witnesses. It has been held by Hon'ble Apex Court in Karamjit Singh Vs. State (Delhi Administration) AIR 2003 SC 1311 as under :
"...The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied State Vs. Sharno Devi Page 7/11 FIR No. 92/08 upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application fan be laid down.."
16. The discrepancies and contradictions in the testimonies of police witnesses gathers paramount importance to opine whether non joining of public witness renders the case of prosecution doubtful and police witnesses are not reliable. However, while doing so, this Court is also conscious that "...Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole...The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspect thereof. In the former case, the defence may by justified in seeking advantage of incongruities obtaining in the evidence. In the later, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental State Vs. Sharno Devi Page 8/11 FIR No. 92/08 disposition... Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case..." State of UP Vs. Krishna Master and Others AIR 2010 SC 3071.
17. Keeping in purview the above enunciations, this Court is proceeding to evaluate whether prosecution has been able to establish the guilt of accused beyond reasonable doubt and whether the defence has been able to stand the test of preponderance of probabilities.
18. Section 50 of the Act mandates certain conditions to be adhered to when accused is to be personally searched. In the present case, as per the prosecution's story recovery was effected from the personal search of accused. To show that they had complied with Section 50 of the Act, PW1, PW3, PW5, PW6 and PW8 Ct. Hari Ram deposed that notice u/s 50 of the Act had been given to the accused. PW5, PW6 and PW8 Ct. Hari Ram also stated that Investigating Officer apprised her of her rights to get herself searched in the presence of a Magistrate or a Gazetted Officer. However, a mere stereo type statement given by the aforesaid witness does not suffice the onus upon the prosecution to prove that accused was properly apprised of her rights. The accused is an illiterate as his reflected from Ex. PW6/A as she has affixed her thumb impression on the notice. None of the witnesses have deposed that contents of the notice had been properly explained to the accused State Vs. Sharno Devi Page 9/11 FIR No. 92/08 keeping in view her socioeconomic background. In Kalayath Nassar Vs. State of Kerala AIR 2000 SC 733, the Hon'ble Apex Court has held that search not as per Section 50 of the Act is prejudicial to the accused. Reliance is also placed upon State of Punjab Vs. Baldev Singh AIR 1999 SC 2378. Hence, this Court is constrained to hold that investigation has prejudiced the accused and corroboration by independent witnesses assumes consequence.
19. Further, Section 100 of Criminal Procedure Code, 1973 provides as to how search is to be conducted. Joining of independent witnesses has been provided for. It is no longer res integra that a stereo type statement of non availability of public witness would not be sufficient when at the relevant time, it was not difficult to procure service of witnesses. Reliance is placed upon Sadhu Singh Vs. State of Punjab (1997) 3 Crimes 55 (PH). In the present matter, the witnesses examined have given stereotypical statements in examination in chief that witnesses from public were sought to be joined but they refused without disclosing their names and addresses. But, in the considered view of this Court, the prosecution has failed to lead any cogent evidence to show that a genuine attempt was made to join public witnesses but they were reluctant or unavailable. No explanation has also been given by any of the member of the raiding party as to why recourse to Section 100(8) Cr.P.C was not resorted to only giving credence to the possibility of narcotic having been planted upon the accused. Therefore, lack of State Vs. Sharno Devi Page 10/11 FIR No. 92/08 corroboration by independent witnesses has become fatal to the case of prosecution.
20. Corroboration in the present matter by independent witness also assumes importance as the fate of the seals and that they were handed over to independent and uninterested witnesses has not been proved.
21. In view of the discussion above, accused is granted benefit of doubt and is of acquitted of offence punishable u/s 21 of the Act.
22. After compliance with Section 437A Cr.P.C filed be consigned to records.
Announced in the open Court (Ms. VIJETA SINGH RAWAT)
on 11.10.2013 MM04/Patiala House Courts
New Delhi.
State Vs. Sharno Devi Page 11/11
FIR No. 92/08