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Delhi vs . Sunil (2001) 1 Scc 652 Wherein It Has ... on 5 May, 2008

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           IN THE COURT OF SHRI RAKESH KAPOOR
     SPECIAL JUDGE: NDPS ACT: TIS HAZARI COURT: DELHI.

                                   FIR NO. 60/03
                                   P.S. Narcotics Branch
                                   U/S 21 NDPS ACT


1. Session Case no.                50/N/03
2. Name of the accused             Ibrahim Sheikh @ Rafiq
                                   s/o Mohd. Hanif @ Anis
                                   r/o Village Botal Ganj
                                   PO & PS Pipaliya Mandi,
                                   Tehsil Malhar Garh,
                                   Distt. Mandsor ( M. P. )

3. Date of commission of offence    15/07/03

4. Arguments concluded on          15/04/08

5. Date of final order             03/05/08

JUDGMENT

1. Accused Ibrahim Sheikh has been sent up to face trial u/s 21 of NDPS Act.

2. Briefly stated the allegations against the accused as made out from the report u/s 173 Cr. P.C are as under:

On 15/7/03 at about 6:45 p.m. an informer told HC Bijender of PS Narcotics Branch that a person namely Ibrahim r/o Mansur, M. P. who indulges in sale and supply of HEROIN in Delhi after fetching it from M. P. would come to a place opposite Golcha Cinema, Dariya Ganj , Delhi with a consignment of contraband in order to supply the same to somebody between 8:30 p.m. to 9:30 p.m. HC Bijender produced the informer before SI Sunil Kumar who in turn produced him before Inspector S. P. Kaushik, SHO PS Narcotics Branch. On being satisfied with the correctness of the information, the SHO informed ACP Sh. Ram Prakash Sharma at his residence who directed that a raid be conducted. A police party headed by SI Sunil Kumar left the police station at about 8:00 p.m. and arrested the accused at about 9:10 p.m. from a place opposite Golcha Cinema, Dariya Ganj while in possession of a black coloured attachi case containing 10 kg. of HEROIN. Samples were drawn on the spot which were later on sent to FSL. On confirmation of the fact that the recovered substance was indeed HEROIN and on completion of the investigation, a charge sheet was filed against the accused.

3. A charge u/s 21 NDPS Act was framed against the accused to which he pleaded not guilty and had claimed trial.

4. In order to prove its case, the prosecution has examined 9 PWs in all.

5. PW2 HC Bhagwat Dayal was posted as duty officer, PS Narcotics Branch on 16/7/03. On that day, at about 1:15 a.m. he had received a rukka through HC Harcharan Singh on the basis of which he had registered a FIR in this case. Copy of FIR has been proved on record as Ex. PW2/A. The witness has also proved on record DD nos. 42 and 44 Ex. PW2/B and Ex. PW2/C recorded by him in respect of the registration of the FIR.

6. PW-1 Inspector S. P. Kaushik, PW-6 SI Sunil Kumar, PW7 HC Harcharan Singh and PW-9 ASI Bijender Singh were the members of the police party which had conducted the raid against the accused and recovered the contraband from his possession. All of them have supported the prosecution version. PW-6 SI Sunil Kumar had organised the raid under the supervision of Inspector S. P. Kaushik and has deposed that on 15/7/03 at about 6:45 p.m. HC Bijender had received a secret information that a person named Ibrahim r/o Mansur, M. P. who indulges in sale and supply of HEROIN in Delhi after bringing it from M. P. would come to a place opposite Golcha Cinema, Dariya Ganj, Delhi near Punjab & Sindh Bank with a consignment of HEROIN to supply the same to somebody between 8:30 p.m to 9:30 p.m. HC Bijender had produced the informer before him in his office. He had verified the information and on being satisfied about the correctness of the same had produced the informer along with HC Bijender before Inspector S. P. Kaushik, SHO in his office. The SHO had also verified the information and -4- after satisfaction , had passed on the information to ACP Sh. Ram Prakash Sharma at his residence. The ACP had directed that a raid be conducted. SI Sunil Kumar has deposed that he had lodged DD no. 36 (Ex. PW1/A) in respect of the information and had put up the same before the SHO. He had organised a raiding party wherein he had joined HC Bijender, HC Harcharan Singh, HC Omkar and Ct. Dushyant under the over all supervision of Inspector S. P. Kaushik. The police party had left the police station on a government vehicle no. DL- 1V-3570 being driven by Ct. Dushyant at about 8:00 a.m. At about 8:15 p.m., they had reached a place near Punjab & Sindh Bank, Opposite Golcha Cinema, Dariya Ganj, New Delhi. The government vehicle was parked at the corner of the Dayanand Marg and Ct. Dushyant was deployed on the same. SI Sunil Kumar has deposed that he had asked 5 passer byes and 3 rickshaw pullers to join the raiding party but none had agreed. He had briefed the members of the raiding party and had carried out a Nakabandi within the radius of 50 meters at the spot. He along with Inspector S. P. Kaushik, HC Bijender and the informer had taken position in front of Punjab & Sindh Bank while the remaining members of the police party were deployed on the spot on both sides within a distance of 50 meters.

SI Sunil Kumar has further deposed that at about 9:00 p.m., the accused came from the side of Red Fort carrying a black coloured attachi case . The secret informer had pointed out towards at him.

The accused had stopped in front of Standard Hotel and had started waiting for someone. After sometime, he had started moving towards Delhi Gate . The accused was apprehended at about 9:10 p.m. in front of Punjab & Sindh Bank . On enquiry, he had given his name as Ibrahim Shiekh. SI Sunil Kumar has deposed that he had given his identity and that of the other members of the police party to the accused and had told him about the information against him. He had also told the accused about his legal right to get himself searched in the presence of a gazetted officer/a Magistrate or to search any member of the police raiding party. The accused had refused to get himself searched in the presence of a gazetted officer/a Magistrate or to search the members of the police raiding party. He had then served the accused with a notice u/s 50 NDPS Act Ex. PW1/B on which the accused had scribed his refusal which is Ex. PW1/C. He had then asked 5 passer byes to join the proceedings but none had agreed. He had taken away the attachi case affixed with black coloured handle which was attached with two brackets and was covered with raxin and chain. Words "CRESCENT" was written on the raxin which had brown stripes. He had opened the attachi case and it was found to contain a checkdar lungi, a light yellow coloured towel, a dirty white pant and a dirty white shirt beneath which he had found five packets of transparent polythenes containing Bhura Coloured powder. The mouth of the polythenes were tied with separate rubber bands. The powder was tested on the filed testing -6- kit and it gave positive result for HEROIN. He had marked the five packets as A,B,C,D and E and had weighed them separately. Each packet weighed 2 kg. totaling to 10 kg. of HEROIN along with the polythenes. He had taken out two samples from each packet and had kept them in separate yellow envelopes which were given marks A1, A2, B1, B2, C1, C2, D1, D2 & E1, E2 respectively. The remaining HEROIN was kept in the attachi case and was converted into a cloth parcel and was marked F. He had filled up CRCL form and had affixed his official seal of 6A PS NB DELHI on all the parcels and form CRCL. SHO Inspector S. P. Kaushik had also affixed his official seal of 1 SHO NBR DELHI on all the parcels and CRCL form whereafter he had taken all these things into his possession vide memo Ex. PW1/C1. He had then handed over all the parcels and CRCL form to Inspector S. P. Kaushik SHO along with the copy of seizure memo and had also handed over his seal to HC Bijender Singh. He had prepared a rukka Ex. PW6/B and had handed over the same to HC Harcharan Singh with the direction to hand over the same to DO for registration of the FIR. As per him, HC Harcharan Singh had left the spot along with the SHO who was carrying the case property with him in the aforesaid government vehicle being driven by Ct. Dushyant at about 1:10 a.m. on 16/7/03.

SI Sunil Kumar has also deposed that on 16/7/03 at about 2:25 a.m. SI B. P. Singh had reached the spot along with HC Harcharan in the aforesaid vehicle. He had produced the accused -7- and the relevant documents before SI B. P. Singh who had prepared a site plan at his instance and had recorded the statement of HC Harcharan Singh. In his presence, SI B. P. Singh had arrested the accused vide memo Ex. Pw6/C and had conducted his personal search vide memo Ex. PW6/D wherein a carbon copy of notice u/s 50 NDPS Act, a wrist watch 'SONATA' with a golden chain, a silver ring, a pocket diary, cash in the sum of Rs. 900/- and a mobile phone with number 9893060535 make SAMSUNG were recovered. The disclosure statement of the accused Ex. PW6/E was also recorded. The police party had left the spot at about 4:15 a.m. and had reached Vaishno Hotel , Fateh Puri at about 4:30 a.m. where the police party had conducted the search of room no. 7 where he was staying. The police party had recovered a wooden box affixed with three channels (teen parda lakri ke petti) , screw driver and a plier which were also taken into possession vide memo Ex. PW6/F. The police party had reached the police station at about 5:00 a.m. where the accused was produced before the SHO . SI Sunil Kumar has deposed that he had prepared report u/s 57 NDPS Act Ex. PW4/B and had put up the same before the SHO. He has identified the case property in the Court .

7. PW1 Inspector S. P. Kaushik has corroborated the statement of SI Sunil Kumar and has added that he had accompanied HC Harcharan Singh to the police station. In his presence, HC Harcharan Singh had handed over the rukka to the DO who had -8- recorded the FIR in this case. He had recorded FIR number on the parcels and form CRCL and had deposited these things with HC Gyan Prakash. He had lodged DD no. 43 Ex. PW1/D at about 1:40 a.m. The accused was produced before him by SI B. P Singh at about 5:00 p.m. On the same day, he had forwarded the reports u/s 57 NDPS Act prepared by SI Sunil Kumar and SI B. P. Singh to the higher authorities. He has also deposed that on 25/7/03 on his directions, samples A1 to E1 along with form CRCL were deposited with CRCL Lab, Pusa through Ct. Girish Kumar. He has also identified the case property.

8. PW7 HC Harcharan Singh while corroborating the statements of SI Sunil Kumar and Inspector S. P. Kaushik has added that after the registration of the FIR, he had accompanied SI B. P. Singh to the spot . SI B. P. Singh had prepared a site plan at the instance of SI Sunil Kumar and had then recorded his statement at the spot . He is a witness to the arrest memo/personal search memo/ disclosure memo made by the accused. He has also identified the case property in the Court.

9. PW9 ASI Bijender Singh was working as HC on 15/7/03 and was posted at PS Narcotics Branch. He has deposed that on that day at about 6:45 p.m. it was he who had received the information against the accused and had taken the informer to SI Sunil Kumar. He had also accompanied SI Sunil Kumar to the SHO along with the informer . He has corroborated the statement of SI Sunil Kumar and -9- has confirmed that the seal after use was handed over to him by SI Sunil Kumar.

10. PW -8 SI B. P. Singh had taken over the investigation of this case on the directions of the SHO . He had gone to the spot along with HC Harcharan Singh on the aforesaid government vehicle and had reached there at about 2:25 a.m. He has deposed that SI Sunil Kumar had handed over to him the accused along with the relevant papers of the case. He had prepared a site plan Ex.PW8/A at the instance of SI Sunil Kumar and had recorded the statement of HC Harcharan Singh. He had arrested the accused vide memo Ex.PW6/C and had conducted his personal search vide memo Ex.PW6/D wherein a carbon copy of notice u/s 50 NDPS act, a wrist watch, a silver ring, Rs. 900/- in cash, a pocket diary and a SAMSUNG mobile 9893060535 were recovered. SI B. P. Singh has also deposed that he had recorded the disclosure statement of the accused and had visited Vaishno Hotel, Fateh Puri where he had conducted search of room no. 7 where the accused was staying. However, no incriminating substance was recovered in the said search vide memo Ex. PW6/ F. They had however recovered a wooden petti having 3 segments, a screw driver and a plier besides aluminum strips. As per SI B. P. Singh, they had left the spot and had reached the police station at about 5:00 a.m. where the accused was produced before the SHO. He has also deposed that he had put up the report u/s 57 NDPS Act Ex.PW4/A before the SHO.

11. PW5 HC Gyan Prakash was working as MHC(M) P.S Narcotics Branch on 16/7/03. He has deposed that on that day Inspector S. P. Kaushik SHO had deposited with him 11 parcels , form CRCL and copy of seizure memo. The parcels and form CRCL were sealed with the seal of 6A PS NB DELHI AND 1 SHO NBR DELHI. He had made an entry of this fact in register no.19 which has been proved on record as Ex.PW5/A. He has also deposed that SI B. P. Singh had deposited with him the personal search of the accused. and that on 25/7/03 on the direction of SHO Inspector S. P. Kaushik he had sent parcels mark A1 to E1 along with form CRCL for deposit with FSL Rohini though Const. Girish Kumar vide RC No.74 /21. Const. Girish had brought the acknowledgment and had handed it over to him. He had proved copy of RC .74/21 as Ex.PW5/B.

12. PW3 Ct. Girish Kumar has corroborated the above part of the statement of HC Gyan Prakash and has stated that he had deposited the sample parcels along with form CRCL at FSL Rohini on 25.7.03 vide RC No. 74/21.

13. PW4 ASI Virender Singh had brought with him the original reports u/s 57 NDPS Act prepared by SI Sunil Kumar and SI B. P. Singh Ex.PW4/A and Ex.PW4/B which were received in the office of the DCP, Narcotics on 16/7/03. He has also identified the signatures of DCP , Narcotics on these reports.

14. The accused has been examined u/s 313 Cr.P.C. He has denied the prosecution story as false. He has denied that on 15/7/03 -11- he was apprehended by a police party headed by SI Sunil Kumar from a place opposite Golcha Cinema, Dariya Ganj, New Delhi and was found in possession of 10 kg. of HEROIN. In his defence, he has claimed that he is innocent and that nothing was recovered from his possession. He has claimed that the case against him is false and concocted. The accused has not lead any evidence in his defence.

15. I have heard arguments advanced at the bar. On behalf of the State, Ms. Madhu Arora, Ld.APP has forcefully contended that the prosecution has proved its case against the accused. My attention has been drawn to the testimony of the witnesses and it has been contended that the witnesses had given a very precise account of the events which took place leading to the arrest of the accused and the subsequent recovery of contraband from his possession. It is contended that the PWs who had deposed against the accused were not inimical towards him and therefore, there was no reason to discard their testimonies. It has been prayed that the accused be convicted accordingly.

16. On behalf of the accused, Sh. Sunil Tiwari, Ld.Defence counsel has contended that the accused is innocent and has been falsely implicated by the police. He has taken me through the testimony of the PWs and has pointed out that the police had prior information against the accused. He has contended that despite the fact that the public witnesses were available in good number, no sincere efforts -12- were made by the IO to join them in the investigation of this case because the police had something to hide from the Court. He has contended that in these circumstances it would be unsafe to base conviction against the accused on the uncorroborated testimony of official witnesses. The Ld.counsel has then taken me through the testimony of the prosecution witnesses and has drawn my attention to the contradictions in their statements. He has forcefully contended that the contradictions in the statements of the police officials would not have come had they conducted a raid against the accused and were present together on the spot. He has contended that the entire proceedings were conducted by the police at the police station and the accused was falsely implicated in this case . The Ld. counsel has prayed that the accused be acquitted by giving him the benefit of doubt.

17. I have considered the rival contentions and have given my careful thought to the same.

18. No independent witness has been joined in the investigation of this case despite the fact that public witnesses were present in good number at the spot at the time of the apprehension of the accused. These included residents, shopkeepers, passer byes and others. It has been contended on behalf of the accused that conviction against the accused should not be based on the sole testimony of police officials who are interested in the success of their case. It is contended that the testimony of police officials should be seen with -13- suspicion especially when they had failed to join public witnesses despite their availability. The Ld.APP on the other hand has drawn my attention to the statements of the witnesses who had formed the raiding party wherein they have deposed that they had asked several persons to join the raid against the accused but all of them had refused. The Ld.APP has contended that the general public does not want to join a police investigation either because of the fear of the accused or because of the inconvenience caused on account of appearance in the Court. She has stressed that the police officials are competent witnesses and their testimony should not be discarded only on the ground that they are interested in the success of their case.

19. The arguments advanced on behalf of the prosecution and the accused raise the following questions:

1. Should the case of the prosecution be seen with suspicion if no public witnesses are joined in the investigation despite the fact that they were available to the investigating officer?

2. Should the case of the prosecution be thrown away on the failure of the investigating officer to join public witnesses where it is proved that no sincere efforts have been made to join them?

The answers to these questions are provided by a judgment of the Hon'ble Supreme Court reported as Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 wherein it has held :

"It is an archaic notion that actions of the -14- police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. It is hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a preposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".

20. As per the aforesaid judgment, police officials are competent witnesses and there is no rule that conviction against the accused cannot be based on their uncorroborated testimony. However, in all cases where the witnesses against the accused are all police officials, a duty is caste on the Court to scrutinize the statements of prosecution witnesses closely in order to form an opinion as to whether they are reliable and truthful. I have also gone through the statements of the prosecution witnesses very minutely. I am of the opinion that the witnesses are reliable and conviction against the accused can be based on their testimony alone. The ld. defence counsel has cross examined these witnesses very closely with regard to the minute details of the case and has not been able to pin a hole in the prosecution story. The witnesses who were the members of the raiding party have spoken in unison about the receipt of information against the accused, the manner in which the raid was organised, the manner in which the accused was apprehended and the recovery of contraband from his possession. The witnesses have also spoken in unison about the fact that before taking the formal search of the accused, he was apprised of his legal right to get himself searched in the presence of a gazetted officer/ a Magistrate or to search the person of the police party . They have also deposed that the accused had refused the said offer. They have also deposed that samples were drawn on the spot from out of the recovered contraband and were sealed with the seals of the IO and -16- SHO. The sealed parcels were then immediately handed over to the SHO who had deposited the case property with the MHC(M) on reaching the police station. The ld. defence counsel has drawn my attention to contradictions in the statements of the witnesses which in my opinion are only minor and do not go to the root of the prosecution case.

21. The Ld.defence counsel has next argued that the information received at the police station was not recorded separately. According to him the prosecution has failed to prove the compliance of Section 42 of NDPS Act. The contention is misplaced in as much as it has been proved on record that the information received at the police station was recorded into writing in the form of DD NO.36 , Copy of which has been proved on record as Ex. PW1/A. The copy of the DD was duly put up before the SHO who had forwarded the same to the higher authorities in compliance with the requirement of Section 42 NDPS Act.

22. In his defence, the accused has claimed that he is innocent and has been falsely implicated in this case. The accused has not given any reason for his false implication. He has not stated as to from where he was apprehended by the police and as to why he has been falsely implicated in this case. The PWs who have deposed against the accused have not been shown to be inimical towards the accused or had any particular animus to falsely involve him in this case. I am, therefore, of the considered opinion that the defence -17- taken by the accused is false and concocted. I reject the defence version.

23. From the discussion above, I am convinced that the accused was apprehended by a police party on 15.7.03 at about 9:10 p.m in front of Golcha Cinema, Dariya Ganj, Delhi while in possession of HEROIN. Five samples of the contraband were sent to the FSL which had reported that the recovered substance was in fact HEROIN. On an application filed by the accused, five samples of the recovered substance were again sent to the FSL on 09.08.07. These samples were drawn in the Court from out of the case property and were given marks A3 to E3. The FSL result dated 23.10.07 shows that the samples contained diacetyl morphine, phenobarbital and diazepam in the following manner:-

Exhibit A3 - 1.4%, 0.1% & 5.4% respectively. Exhibit B3 - 0.05%. 0.07% & 3.5% respectively. Exhibit C3 - 0.12%, 0.04% & 2.1% respectively. Exhibit D3 - 0.03%, 0.05% & 1.8% respectively. Exhibit E3 - 0.03%, 0.03% & 2.1% respectively.

24. Computed on the basis of the purity percentage, the amount of HEROIN recovered from the possession of the accused comes to 32.6 gms. besides the quantity of phenobarbital and diazapam detected in the samples. Accordingly, the accused stands convicted under section 21 of NDPS Act.

ANNOUNCED IN THE OPEN COURT
ON 3rd May, 2008                          (RAKESH KAPOOR)
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  SPECIAL JUDGE:NDPS ACT
            DELHI
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         IN THE COURT OF SHRI RAKESH KAPOOR

SPECIAL JUDGE: NDPS ACT: TIS HAZARI COURT: DELHI.

P.S. Narcotics Branch U/S 21 NDPS ACT

1. Session Case no. 50/N/03

2. Name of the accused Ibrahim Sheikh @ Rafiq s/o Mohd. Hanif @ Anis r/o Village Botal Ganj PO & PS Pipaliya Mandi, Tehsil Malhar Garh, Distt. Mandsor ( M. P. ) ORDER ON SENTENCE Vide my separate judgment dt. 3.5.08, I have convicted accused Ibrahim Sheikh @ Rafiq u/s 21 NDPS Act.

I have heard the accused on the question of sentence. The accused prays for leniency in the matter of sentence. He is 42 years of age and has a family consisting of a wife aged 41 years, three daughters of marriageable age and three sons aged between 14-17 years.

It is stated that he has not been involved in any case under the NDPS Act earlier and has no criminal antecedents.

I have considered the prayer of the accused. It has been proved on record that the accused was found in possession of

32. 6 grams of HEROIN besides phenobarbital and diazapam .

The accused has remained in judicial custody from 16/7/03 till date as an undertrial i.e. for a period of about four years and eight months. In my considered opinion, the period of imprisonment undergone by the accused as an under trial is sufficient and he should not be subjected to any further term of imprisonment. Accordingly, I sentence the accused to imprisonment already undergone by him as an under trial with a fine of Rs. 5,000/- in default of payment of fine, the accused shall undergo SI for one month.

File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT
ON 5th May , 2008           (RAKESH KAPOOR)
                         SPECIAL JUDGE:NDPS ACT
                                   DELHI