Delhi District Court
State vs . Shiv Singh Chauhan And Anr. on 8 April, 2015
State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014
FIR No. 2/2014
PS Crime Branch
1
IN THE COURT OF SH. RAJIV MEHRA
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.2/2014
FIR No. 2/2014
PS Crime Branch
State
Versus
1. Shiv Singh Chauhan,
S/o Sh. Parveen Singh Chauhan,
R/o C-52, Pardhan Enclave,
Burari, Delhi
2. Ram Ugrah
S/o Sh. Raja Ram,
R/o E-100, West Karawal Nagar,
Delhi
JUDGMENT
1. Two accused in this case is facing trial for the charge under Section 9A/25A/29 NDPS Act on the allegations of recovery of 10 KG of Pseudoephedrine (controlled substance) on 3.1.2014 by the police officials of Crime Branch, Delhi in this case.
2. Both accused are Indian Nationals.
State Vs. Shiv Singh Chauhan and Anr.
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3. The prosecution case against them is that on 3.1.2014 PW-10 ASI Narender Kumar, official of the Crime Branch, Shakarpur Delhi received a secret information that accused Shiv Singh Chauhan having links with the chemist in the area of Bhagirath Palace, Delhi supply Pseudoephedrine in Delhi with his companion Ram Ugrah, co-accused in this case. As per the secret information accused Shiv Singh Chauhan in between 2.00 to 2.30 pm on 3.1.2014 was to arrive at T-point of Subhash Park, Jama Masjid, Delhi to deal Pseudoephedrine.
4. After sharing this information with senior officials in the branch a raiding party of PW-10 ASI Narender Kumar, PW-8 HC Charan Singh and PW-9 HC Manoj Kumar was formed and at about 2.30 pm the raiding party members apprehended both the accused from near T-point, Subhash Park, Jama Masjid, Delhi and in their search 10 KG of Pseudoephedrine, was allegedly recovered from a Pithu Bag carried by accused Shiv Singh Chauhan.
5. As per prosecution case both accused in criminal conspiracy with each other had committed the offences punishable under Narcotics Drugs and Psychotropic Substance Act.
State Vs. Shiv Singh Chauhan and Anr.
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6. Charges under Section 29/9A/25A NDPS Act were framed against the two accused on 23.4.2014 which they denied and claimed trial.
7. The plea of defence taken by accused Shiv Singh Chauhan in denying the charge against him is that on 4.1.2014 Friday, Ram Ugrah and his employer Shiv Narain Dubey were going to Market where Shiv Narain Dubey misled him and asked him to carry a bag on the promise of giving Rs. 50/- to him. This bag was to be taken to the Chemist shop of Shiv Narain Dubey near Trisha School situated in Karawal Nagar. As per accused Shiv Singh Chauhan he did not know what was contained in the bag which he was carrying. As per him on the way police met them and took all of them to the police station in the area of Shakarpur. Police let off Shiv Narain Dubey. As per the accused he does not know as to what happened with the bag.
8. Ram Ugrah did not make any detailed statement except denying the charge in his plea of defence.
9. During the course of trial prosecution examined 10 witnesses in support. They all are police officials. Their names State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014 FIR No. 2/2014PS Crime Branch 4 and details are as follows:-
(i) PW-1 is Ct. Om Parkash. On 3.1.2014 he was serving in the office of ACP Narcotics. He has proved the DD No.20 regarding secret information received in the office Ex.PW1/A, report under Section 57 NDPS Act received in the office Ex.PW1/C and also another report u/s 57 NDPS Act Ex.PW1/E which according to him where put up before ACP Zile Singh upon which he made his endorsement at point A.
(ii) PW-2 is Inspector Aakash Rawat and on 3.1.2014 he was serving in the office of Crime Branch, Shakarpur and was briefed by secret informer accompanying ASI Narender Kumar (PW-10) about the secret information. As per him this information was communicated to ACP (Narcotics) Zile Singh. PW-2 also deposed about forwarding the report under Section 57 NDPS Act produced before him by ASI Narender Kumar (PW-10) regarding seizure of the controlled substance Ex.PW1/C and about the arrest of the two accused submitted by PW-4 SI Dinesh Kumar Ex.PW1/E, forwarded by him to ACP Narcotics.
(iii) PW-3 is Inspector Virender Singh, SHO PS Crime Branch, Malviya Nagar, Delhi. He has deposed that on 3.1.2014 at about 7.40 pm HC Charan Singh produced before him four sealed parcels duly sealed with the seal of 4B PS NB DELHI which State Vs. Shiv Singh Chauhan and Anr.SC No.2/2014 FIR No. 2/2014
PS Crime Branch 5 are marked A, B, C and D, FSL form and copy of seizure memo upon which he affixed his seal of VS on all the parcels and seal impression was also affixed on FSL form. As per this witness after inquiry from Duty Officer FIR No.2/14 was also written on all the documents and parcels where after he called the MHC(M) in his office with Register No.19 and deposited with him all the parcels and entry was made in Register No.19 signed by him.
(iv) PW-4 is SI Dinesh Kumar IO to whom the investigation was entrusted after the two accused were apprehended and alleged recovery of 10 KG of controlled substance was made by them and FIR was registered.
(v) PW-5 is Ct. Manoj Kumar who had taken one sealed parcel to FSL, Rohini.
(vi) PW-6 is HC Nag Narayan MHC (M). (vii) PW-7 is HC Kamal Singh Duty Officer. (viii) PW-8 is HC Charan Singh member raiding party. (ix) PW-9 is HC Manoj Kumar member raiding party. (x) PW-10 is ASI Narender Kumar to whom the secret informer met and who formed the raiding party alongwith PW-8 Charan Singh and PW-9 HC Manoj
Kumar and apprehended the accused (s) and made the alleged recovery of 10 KG of Pseudoephedrine from them.
State Vs. Shiv Singh Chauhan and Anr.
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10. In his statement under Section 313 Cr.P.C accused Shiv Singh Chauhan stated that he has been falsely implicated in this case.
11. Same is the plea of A2 Ram Ugrah. As per this accused he does not know co-accused Shiv Singh Chauhan. According to him on the day concerned he was present at his shop on 4th floor, No.1496, Bhagirath Palace, Delhi and according to him he deals in basic drugs and PW-8, PW-9 and PW-10 had come to his shop and took him alongwith them where after he has been implicated in this case. According to him co-accused Shiv Singh Chauhan was seen by him first time in the police station.
12. In defence accused Shiv Singh Chauhan examined four witnesses whereas accused Ram Ugrah examined one witness.
13. This Court has heard the Ld. APP and counsel for both the accused and carefully examined the record.
14. It has been submitted by Ld. APP that the prosecution witnesses prove the factum of recovery and arrest of the two State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014 FIR No. 2/2014PS Crime Branch 7 accused beyond doubt. According to the Ld. APP the recovered substance Pseudoephedrine is a 'controlled substance' and accused (s) failed to give any explanation of their having possession of it. They were not having any license to keep it. They were having conscious possession of it. It is submitted that Prosecution has proved its case for all the charges against the two accused.
15. On the other hand it is submitted by Ld. Counsel for A1 Shiv Singh Chauhan that the case is solely dependent on the testimony of police officials. They are not reliable witnesses. No independent witness has been joined despite opportunity. The evidence of prosecution witnesses suffers from contradictions. The prosecution case is unreliable and may be dismissed.
16. The contention of Ld. Counsel for A2 Ram Ugrah is that he has been falsely implicated in this case. He is nothing to do with the present case. It is submitted that recovery of Pseudoephedrine has not been effected from this accused. Police has not adduced any evidence against him on record except showing his presence. It is submitted that if the presence of the accused is presumed on record believing the testimony of State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014 FIR No. 2/2014PS Crime Branch 8 PW-8, PW-9 and PW-10, even then, in the absence of any other incriminating evidence adduced by the prosecution against the accused to show his involvement, he cannot be held guilty for the charge and deserves acquittal on all the charges.
17. This Court deals with case of each of the two accused one by one.
18. First this Court deals with the case of A1 Shiv Singh Chauhan. So far as this accused Shiv Singh Chauhan is concerned the prosecution case against him is that at the time of his arrest on 3.1.2014 he was carrying one Pithu Bag (P4) with him from inside of which the recovery of 10 KG of Pseudoephedrine controlled substance was effected kept in a polythene bag.
19. The recovery of 10 KG of Pseudoephedrine controlled substance from A1 Shiv Singh Chauhan has been proved by the statement of PW-10 ASI Narender Kumar and his deposition is also corroborated by the statement of PW-8 HC Charan Singh and PW-9 HC Manoj Kumar on all material points who are other members of the raiding party.
State Vs. Shiv Singh Chauhan and Anr.
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20. As may be noted from the statement of PW-10 ASI Narender Kumar as made by him on oath in the Court that on 3.1.2014 secret information in this case was received at about 12.45 pm after which informer was taken by PW-10 to PW-2 Inspector Aakash Rawat and as per PW-10 after that he recorded DD No.20 Ex.PW10/A and it was produced before PW-2 Inspector Aakash Rawat and upon his instructions he formed a raiding party at 1.20 pm alongwith PW-8 HC Charan Singh and PW-9 HC Manoj Kumar.
21. The statement of PW-10 ASI Narender Kumar finds corroboration on these facts from the statement of PW-1 Ct. Om Parkash employed in the office of ACP Narcotics and PW-2 Inspector Aakash Rawat.
22. As per PW-10 From their office at Shakarpur they reached to the place given in the information at T-point, Subhash Park at 1.50 pm and on the way public persons were requested by them at two points at Bank Enclave bus stand and also Shanti Van bus stand but no one joined.
State Vs. Shiv Singh Chauhan and Anr.
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23. The testimony of PW-10 is a detailed testimony wherein he also deposed about the observance of procedural formalities in as much as accused (s) being asked to take their search before they search them and also to be produced before Gazetted Officer and Metropolitan Magistrate for the purpose of search and serving of notice u/s 50 NDPS Act upon A1 which has been proved as Ex.PW8/A and the refusal of the accused at point A.
24. As per PW-10 even after the recovery of Pseudoephedrine from A1 public persons gathered at the spot were requested to join the investigation but they declined.
25. The non joining of independent witnesses in the given facts and situation does not make the statement of police officials PW-8, PW-9 and PW-10 any less trustworthy. It is not uncommon to see that public persons usually hesitate to join the police proceedings. The absence of any public witness in the present case does not make the prosecution case of recovery of 10 KG of Pseudoephedrine controlled substance any less unreliable.
State Vs. Shiv Singh Chauhan and Anr.
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26. There is no reason to disbelieve the testimony of PW-10 and other members of the raiding party who all are police officials and have no prior enmity with the accused (s) nor any motive has been imputed to them for the false implication of the accused (s) in this case.
27. Accused Shiv Singh Chauhan in defence has examined four witnesses to show that on 3.1.2014 at the given time he was not present at the spot.
28. DW1-A1 is Rajiv Vashisht, Nodal Officer from Tata Tele Services. He has produced the CAF and CDR of Mobile Telephone No.9250783484 and also produced the location chart on record. As per this witness this mobile telephone sim card has been issued in the name of Shiv Singh Chauhan.
29. DW2-A1 is Chander Shekhar, Nodal Officer from Bharti Airtel Limited. Similar record has been produced by this witness in respect of mobile telephone no. 9868554396 which according to DW2-A1 has been issued in the name of accused Shiv Singh Chauhan.
State Vs. Shiv Singh Chauhan and Anr.
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30. DW3-A1 is Pawan Singh, Nodal Officer, Idea Cellular Ltd. This witness has produced the CAF and CDR number of mobile telephone no. 8506907328 issued in the name of one Kamlesh Kumar.
31. DW4-A1 is Shiv Narain Dubey who had turned hostile and has denied the suggestion given by the Ld. Counsel for the accused that accused has been implicated in the case at his instance.
32. The defence evidence has hardly able to bring any supportive material on the point.
33. It may be noted that in the instant case first of all no mobile phone has been shown to be recovered in the personal search of accused Shiv Singh Chauhan. The location chart, CDR as sought to be produced through DW1-A1 to DW1-A3 would thus hardly be of any relevance to the defence of the accused Shiv Singh Chauhan in this case.
34. Then moreover as may be noted there is a contradiction in the statement made by the accused in disclosure State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014 FIR No. 2/2014PS Crime Branch 13 statement and in his statement of plea of defence sought to be raised by him in reply to the charge framed against him in this case.
35. As may be noted from the disclosure statement recorded during investigation this accused got in touch with one Ajit who used to visit Bhagirath Place and Noida, Atta Market and also deals in Pseudoephedrine controlled substance and as per the contents of this disclosure statement even on 3.1.2014 accused Shiv Singh Chauhan alongwith co-accused Ram Ugrah collected 10 KG of Pseudoephedrine from Ajit near Gouri Shanker Mandir, Chandni Chowk and were going to Jama Masjid to supply it.
36. The prosecution cannot take any advantage of the disclosure statement except permissible under Section 27 Evidence Act which in the present case is none.
37. It may be seen from the plea of defence as recorded by the accused on 23.4.2014 his statement is that on 4.1.2014 Friday he, Ram Ugrah and his employer Shiv Narain Dubey were going in the market. As per this accused, Shiv Narain Dubey State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014 FIR No. 2/2014PS Crime Branch 14 misled him and promised him to pay Rs. 50/- and asked him to carry a bag. As per his plea of defence that bag was to be taken to Chemist Shop of Shiv Narain Dubey near Trisha School in Karawal Nagar. As per accused he did not know what was containing in that bag which he has to carry. According to him on the way police met him and took all of them to PS Shakarpur where police let off Shiv Narain Dubey.
38. In this plea of defence the accused does not dispute his arrest by the police alongwith bag.
39. To prove the fact that samples were duly sealed when they were dispatched to FSL, Rohini, the statement of PW-5 Ct. Manoj Kumar is that on 6.1.2014 he had collected sample parcel of this case to deposit at FSL, Rohini from P.S. Crime Branch, Malviya Nagar which was sealed with the seal of 4B PS NP DELHI and VSS. FSL form bearing impression of seal, copy of seizure memo, copy of FIR duly attested vide RC No.4/21/14 and deposited these items at FSL Rohini with the seal intact and on return to PS he handed over the receipt issued by FSL authorities to MHC (M).
State Vs. Shiv Singh Chauhan and Anr.
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40. The statement of PW-5 finds corroboration from the testimony of PW-6 HC Jag Narayan MHC (M) that on 6.1.2014 he dispatched to FSL, Rohini through Ct. Manoj one sealed sample parcel alongwith FSL form, attested copy of FIR and copy of seizure memo vide RC No.4/21 and entry in this regard was made by him in Register No.19 Ex.PW6/A at point A to A. According to PW-6 on same day Ct. Manoj on return from FSL Rohini produced before him acknowledgment issued by FSL and copy of RC bearing Ex. PW6/C and Ex.PW6/D and according to PW-6 on 13.2.2014 he received back a parcel from FSL and entry in this regard was made by him in Register no.19 at point B to B.
41. The FSL result has been proved as Ex.PW4/H which shows that on chemical examination it gives a positive result of Pseudoephedrine powder.
42. During investigation the police also placed on record the copy of Notification of Ministry of Finance Department of Revenue No.S.O. 1296 (E) dated 28.12.1999 which has declared Ephedrine and Pseudoephedrine and their salts as controlled substance for the purpose of the said clause. A judicial notice may be taken of this Notification and it proves that the substance State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014 FIR No. 2/2014PS Crime Branch 16 notified is a controlled substance.
43. The prosecution thus adduced sufficient evidence on record to prove the arrest of the accused Shiv Singh Chauhan alongwith recovery of 10 KG of Pseudoephedrine which is a controlled substance and case of the prosecution in this regard find support from FSL result which gives a positive test for the substance in question.
44. The contradictions sought to be pointed out by the Ld. Counsel in defence are not of the nature which intrinsically goes to challenge the prosecution case at its very root. The prosecution case cannot be defeated for the reason that the seal in this case was handed over by PW-10 ASI Narender Kumar to HC Manoj as deposed by PW-8 and not to any independent witness. There is no contradiction in the statement of PW-5 Ct. Manoj Kumar and PW-6 HC Jag Narayan MHC (M) as sought to be raised to show that probability of tampering of seal cannot be ruled out.
45. The plea of defence that no log book of the car used in the proceeding has been filed in evidence is of no substance as it was a Private car. The other contradictions are normal only State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014 FIR No. 2/2014PS Crime Branch 17 deals with the part of memory but are not of the nature as to create the very doubt about the truthfulness of the prosecution case.
46. The FSL report is per se admissible in evidence under Section 293 Cr.P.C and non examination of any witness from the FSL Department would hardly be of any adverse impact to the prosecution case.
47. Now this Court will deal with the case of A2 Ram Ugrah. The prosecution case is that at the time of police raid on 3.1.2014 he was present with the co-accused Shiv Singh Chauhan at the site and according to prosecution case A2 was in criminal conspiracy with him thus he was charged for the offence u/s 9A/25A/29 NDPS Act alongwith co-accused.
48. The offence of criminal conspiracy has been defined under Section 120-A IPC which provides that when two or more persons agree to do, or cause to be done, -
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. State Vs. Shiv Singh Chauhan and Anr.
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49. So far as the presence of the accused at the spot at the time of the arrest is concerned stands sufficiently established from the testimony of PW-10 ASI Narender Kumar which was corroborated by testimony of PW-8 HC Charan Singh and PW-9 HC Manoj Kumar.
50. Accused Ram Ugrah has sought to examine one defence witness namely Ram Kirpal Dwivedi as DW1A2 having his shop in front of the accused Ram Ugrah in Bhagirath Palace who has deposed that on 3.1.2014 at about 3.00 pm both he and Ram Ugrah was present in their shops when 4-5 persons came there and introduced themselves as officers from Crime Branch Shakarpur. They took away Ram Ugrah from the shop.
51. The testimony of DW1A2 does not inspire confidence for the reason that except bare statement there is nothing on record by way of any document or any other proof otherwise to connect the testimony of defence witnesses with the alleged incident.
52. In cross examination this defence witness states that after 2-3 days of the incident he learnt from the son of the accused State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014 FIR No. 2/2014PS Crime Branch 19 Ram Ugrah that he has been detained in a criminal case by the police. Surprisingly the accused did not examine his son as a witness in defence. The evidence of DW1A2 would hardly be of any assistance to disprove the fact of arrest of Ram Ugrah at the spot alongwith co-accused on 3.1.2014 by the police officials of Crime Branch.
53. However, the prosecution case against accused Ram Ugrah is that he is in conspiracy with co-accused Shiv Singh Chauhan. In order to prove the charge of conspiracy the prosecution is duty bound to prove on record some positive evidence regarding his complicity in the deal alongwith co- accused. The prosecution is to prove beyond doubt that both accused were working in agreement to do an illegal Act or a legal act by illegal means.
54. The prosecution in this case at the best has proved that recovery has been effected from co-accused Shiv Singh Chauhan from inside a Pithu Bag being carried by co-accused Shiv Singh Chauhan. It is admitted that Pithu Bag was not transparent. It could not be found out from the outside what articles have been kept if any in this Bag. The Bag admittedly was State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014 FIR No. 2/2014PS Crime Branch 20 carried out by co-accused Shiv Singh Chauhan and not by accused Ram Ugrah.
55. The prosecution has brought no other evidence to prove that how accused Ram Ugrah is connected with the offence except the fact that he was present at the site of his arrest alongwith co-accused. Against accused Ram Ugrah police has no other evidence except the disclosure statements of accused and also of co-accused. The disclosure statement of accused Ram Ugrah in absence of any recovery shown to be effected from him in pursuance thereof would hardly be of any benefit to the prosecution case. Similarly the disclosure statement of the co- accused can be read as a piece of evidence under Section 30 Evidence Act. In absence of other reliable and conclusive evidence to prove the charge this piece of evidence cannot be taken as sufficient to bring home the charge against the accused Ram Ugrah.
56. It is the cardinal principle of criminal jurisprudence that prosecution has to prove its case against accused beyond reasonable doubt. In the present case except presence of the accused Ram Ugrah at the spot, the prosecution has no other State Vs. Shiv Singh Chauhan and Anr.
SC No.2/2014 FIR No. 2/2014PS Crime Branch 21 evidence to connect him with the charge in question. The IO has not collected to show his involvement. The very presence by itself cannot be deemed to be sufficient to prove the charge of criminal conspiracy particularly when the recovery has been made from inside the Bag contents of which were not visible from outside which as per the own case of the prosecution was being carried by A1 Shiv Singh Chauhan and not by Ram Ugrah. The suspicion of guilt howsoever strong cannot substitute the requirement of proving the charge beyond reasonable doubt.
57. A1 Shiv Singh Chauhan is convicted for the offence under Section 9A/25A NDPS Act where as A2 Ram Ugrah is given benefit of doubt and is acquitted of all the charges. ORDER IS MADE ACCORDINGLY.
58. File be consigned to record room.
Dictated and announced in the open Court on 8.4.2015.
( RAJIV MEHRA ) Additional Sessions Judge(Central) Delhi. State Vs. Shiv Singh Chauhan and Anr.
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