Delhi District Court
State vs . Manbara Bibi 1 Of 12 on 14 May, 2013
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.32/2012
FIR No.470/2011
PS Narela
u/s 21 NDPS Act
State
Vs.
Manbara Bibi,
W/o Mohd. Suleman,
R/o House No.E2982,
J.J. Colony, Bawana,
Delhi.
Date of institution :09.04.2012
Date when arguments concluded:14.05.2013
Date when Judgment pronounced:14.05.2013
Appearances: Ms. Purnima Gupta, APP for the State.
Ms. Sunita Tiwari, Counsel for accused.
JUDGMENT
1. Accused has been forwarded by the police to face trial State vs. Manbara Bibi 1 of 12 u/s 21 of NDPS Act for being in possession of 9 gms. Smack.
2. Facts of the case are that on 22.09.2011, SI Jaibir along with HC Om Prakash, Ct. Surender and Lady Ct. Rajbala was present at Cblock corner service road on patrolling. At about 4.00 P.M., an informer came to intimate that a lady was standing in E block, J.J. Colony with smack and if raided, she can be caught red handed and smack can be recovered. SHO was intimated about the information and a raiding party was formed. 56 passersby were asked to join proceeding but all refused expressing their reasonable inabilities. The police party moved further with the informer and he pointed out towards a woman stating that she had smack. The lady was apprehended and on an inquiry, she disclosed her identity as accused. Notice u/s 50 of NDPS Act was given and interpreted. She stated to the police that she did not want to create evidence against herself and asked police officials to search her. Lady Ct. Rajbala searched the accused and on her cursory search, a white polythene was found beneath the left side of the bra. It was containing a brown colour powder like smack. It was 9 gms. smack. Two samples of 1 gm. each were taken and serial Nos.1 & 2 were given. The remnant brown colour powder smack was put in State vs. Manbara Bibi 2 of 12 the same polythene and then polythene was put into a dibbi and serial No.3 was given. All these pullandas were wrapped with doctor tape and sealed with the seal of JR. FSL form was also sealed with the same seal. Seal after use was handed over to HC Om Prakash. Tehrir was sent to PS through Ct. Surender for registration of FIR. FSL report opined the sample as containing diacetylmorphine(10.58%) and phenobarbital(15.35%).
3. Charge under Section 21(b) of NDPS Act was framed against the accused on 01.05.2012 to which he claimed trial.
4. In order to substantiate the charge, prosecution examined ten witnesses. Accused did not examine even a single witness in defence.
5. PW4 HC Suresh Kumar was DO in PS Narela Industrial Area on 22.09.2011 and on that day, he recorded FIR Ex.PW4/A at 6.20 P.M. on receipt of rukka brought by Ct. Surender sent by SI Jaibir. After registration of FIR, he recorded DD No.19A Ex.PW4/C. He proved the DD No.20A also as Ex.PW4/F. DD No.16A recorded by SI Jaibir has also been proved as Ex.PW4/F. It is pertinent to mention that DD No.16A is the departure entry of SI Jaibir, HC Om Prakash, Ct. Surender and Ct. Rajbala for patrolling State vs. Manbara Bibi 3 of 12 at 1:50 P.M. DD No.20A was registered by SHO Satish Kumar at 7.50 P.M. regarding affixing of seal of SK on all parcels and deposition of the case property in the malkhana. PW5 MHCM Sultan Singh deposed that on 22.09.2011, SHO Satish Kumar deposited with him three pullandas sealed with the seal of JR and SK along with FSL form having same seals and copy of seizure memo. After deposit, he made entry No.496 Ex.PW5/A in register No.19. One sealed pullanda was handed over by him to Ct. Narain on 10.10.2011 vide RC No.209/21/11 Ex.PW5/B for depositing in FSL, Rohini and he made endorsement to that effect at point X in register No.19. Ct. Narain, after depositing of case property in FSL, handed him over receipt acknowledgment Ex.PW5/C. The remnant sample and result was brought to him by Ct. Vijay Prakash on 21.12.2011 and PW5 made endorsement at point Y in register No.19 and handed over result to the IO. The witness lastly deposed that on 22.09.2011, ASI Sajjan Singh deposited personal search articles of the accused with him. The personal search articles included original notice u/s 50 of NDPS Act and he made an entry against the main entry in register No.19. He did not tamper with the case property until it remained with him. PW6 State vs. Manbara Bibi 4 of 12 ACP Harpal Singh proved the report Ex.PW6/B u/s 57 of NDPS Act which was received in his office on 26.09.2011 for which entry was made at serial No.5421 Ex.PW6/B. PW7 Ct. Narain Singh had taken a pullanda to the FSL for analysis. PW9 ASI Sajjan Singh is the IO to whom Ct. Surender handed over rukka Ex.PW8/A and copy of FIR in PS at 7.00 P.M. on 22.09.2011 as further investigation was assigned to him. He reached the spot with Ct. Surender on bike and found there SI Jaivir, HC Om Prakash, Lady Ct. Rajabala along with accused Manbara Bibi. SI Jaivir handed him over all relevant documents and custody of the accused. He prepared rough site plan Ex.PW9/A at the instance of SI Jaivir, and thereafter, recorded his statement and statement of HC Om Prakash. Both these police officials left the spot with the case property, copy of seizure memo and FSL form. He arrested the accused vide arrest and personal search memos Ex.PW1/D and Ex.PW1/E respectively. The accused was personally searched by lady Ct. Rajbala and from her personal search, original notice Ex.P 1 u/s 50 of NDPS Act was recovered. After return to PS, personal search articles were deposited with MHCM. The accused was produced before SHO who found her arrest justified, and State vs. Manbara Bibi 5 of 12 thereafter, second IO recorded the statement of SHO. The report Ex.PW6/B u/s 57 of NDPS Act regarding seizure of 9 gms. smack and arrest of the accused was sent by PW9 to ACP on 22.09.2011.
6. PW10 Insp. Satish Kumar was SHO in PS Narela on 22.09.2011 and at about 4.00 P.M, he received secret information telephonically by SI Jaivir and he instructed him to proceed further. At 7.30 P.M., PW10 received three sealed pullandas serial Nos.1, 2 & 3 and FSL form, all having seal fo JR along with copy of seizure memo of smack brought by SI Jaivir and PW10 affixed his seal of SK and put FIR number on all those articles after inquring the same from duty officer and then, deposited them in malkhana and relevant entry was made in register No.19 and DD No.20A Ex.PW4/A was also made to that effect. On 22.09.2011, report u/s 57 of NDPS Act was sent to ACP and on 10.10.2011, exhibits of the present case were sent to FSL through Ct. Narain along with FSL form. PW10 further deposed that so long as case property remained in his possession, it was not tampered with.
7. PW1 Ct. Surender Singh, PW2 lady Ct. Rajbala, PW3 HC Om Prakash and PW8 HC Jaivir are the recovery witnesses. That team was headed by PW8. The accused was searched by PW2 State vs. Manbara Bibi 6 of 12 and from her possession, a transparent polythene was recovered from the left side of the bra. After sealing all parcels, the seal was handed over by PW8 to PW3 and rukka was handed over to PW1 to take the same to PS for registration of FIR. All these witnesses have deposed as per rukka Ex.PW8/A.
8. Under Section 313 Cr.PC, the accused did not state anything significant. In answer to Question No.23, he claimed that he was lifted by the police from her house and was implicated falsely in this case by taking her thumb impressions on blank papers showing that 9 gms. contraband was recovered from her.
9. APP for the State argued that though there was no requirement to comply with the provisions of Section 42 of the Act, yet PW8 informed the concerned SHO telephonically regarding the secret information. Provisions of Section 50 were complied with by issuing carbon copy of notice Ex.PW1/A to the accused but she preferred to be searched by the raiding team vide reply Ex.PW1/B. She further submitted that the accused was produced by PW9 ASI Sajjan Singh before PW10 in PS and who found her arrest justified. The case property was produced before PW10 by PW7 SI Jaivir and after affixing his own seal of SK on all parcels and FSL form, PW10 State vs. Manbara Bibi 7 of 12 SHO Satish Kumar deposited those articles with PW5 MHCM Sultan Singh. Lastly, she contended that report Ex.PW6/B u/s 57 of NDPS Act was sent to ACP well in time, by the second IO.
10. On the other hand, Ld. defence counsel argued that recovery was effected in broad day light at 4.35 P.M. from a congested residential area and despite it, no explanation is available with the police for not joining any public witness. On this point, PW1 deposed in cross examination that there were many residential houses on the way from the place of receipt of information to the place of recovery and no person was summoned from those houses to join the investigation. In further cross examination, he deposed that public persons were summoned from the surrounding houses of accused but he is not aware of the names and addresses of the persons who refused to join the raid. He admitted that no notice in writing was given to them and no action was taken against them. He is not aware of the names of the owners of the houses situated on the left and right of the house No.2982 of the accused. To the same effect is the testimony of PW2. As per rough site plan Ex.PW9/A, there are several houses around house No.2982. It is a congested residential locality having State vs. Manbara Bibi 8 of 12 hundred houses in one street. All these facts show that public witnesses were definitely available but police did not join any of them. It was held by Apex Court in Ravindran @ John Vs. Superintendent of Customs AIR 2007 SC 2040 that non examination of independent witnesses to search is not fatal. In the event of nonjoining of independent witness, the evidence of official witnesses may, however, be approached with suspicion and corroboration may be insisted upon. So, accused cannot be acquitted solely on this ground.
11. Next contention is that no notice u/s 50 of NDPS Act was given and all police officials have lied on service of notice Ex.PW1/A on the accused. All four recovery witnesses were unanimous in their examination in chief that original copy of notice Ex.P1 was given to the accused and she preferred to be searched by the police officials and her refusal reply Ex.PW1/A was written on the carbon copy itself. But police committed a grave error in annexing another notice u/s 50 of NDPS Act and copy of that notice was supplied to the accused u/s 207 Cr.PC. It is the bad luck of the prosecution that that notice was captured by the eager eyes of the defence counsel. She put that notice in cross State vs. Manbara Bibi 9 of 12 examination to all witnesses and they came out with a new version that two notices u/s 50 of NDPS Act were prepared and a wrong was committed in the first notice and so, it was replaced by notice Ex.P1 whose carbon copy is Ex.PW1/A. The notice supplied to the accused u/s 207 Cr.PC is Ex.PW2/DB. The police was silent about the second notice till the start of cross examination of all recovery witnesses. The explanation furnished by the recovery witnesses is that some wrong was done in the earlier notice and that wrong is apparent as FIR 470/11 was written in that notice. Appearance of FIR 470/11 on notice Ex.PW2/DB suggests that the notice was prepared even before the registration of FIR. Preparation of notice u/s 50 of NDPS Act is palpable in the evidence of PW4 also who deposed that he started writing rukka at 5.35 P.M.. Thereafter, he handed over rukka to Ct. Surender to take it to PS which is 9 Kms. away from the spot. As per endorsement Ex.PW4/B on rukka, a DD No.19A was recorded at 6.20 P.M. after registration of FIR. It means that FIR as well as DD No.19A were fully ready by 6.20 P.M. Rukka is consisting of four pages and it runs into eighty lines. It is not possible for a scribe to write four pages in less than half hour. Rukka carrier might have taken at least fifteen minutes in reaching State vs. Manbara Bibi 10 of 12 the PS. DO might have also consumed at least fifteen minutes in registering FIR and five minutes in recording DD No.19. So, calculating the time in that manner, it can be said that FIR was registered at or after 7.00 P.M. but it has been shown to have been registered at 6.20 P.M. 12 PW9, PW10 and PW5 deposed that seal of SK was affixed by PW10 and case property was deposited with MHCM who prepared register No.19 Ex.PW6/A. Had PW10 affixed seal of SK, it would have been found mentioned in column No.4 of Ex.PW5/A meant for description of the property. It is pertinent to mention that in that column, there is a mention of seal of JR on the case property but mention of seal of SK is missing.
13. Though compliance of Section 42 of NDPS Act was not necessary because recovery was to be effected from the personal search of the accused, yet, in order to fortify the prosecution case, PW1, PW2 and PW3 improved upon their previous statements Ex.PW1/DA, Ex.PW2/DA and Ex.PW3/DA by deposing that SHO was intimated telephonically by the first IO about the secret information. They have been contradicted on this issue with their previous statements.
State vs. Manbara Bibi 11 of 12
14. As per rukka Ex.PW8/A, the recovery was effected in front of house No.E2981 but as per rough site plan Ex.PW9/A, the place of recovery is in front of house No.2982. None of the IO threw any light on this anomaly.
15. In view of above discussion, the accused Manbara Bibi is hereby acquitted of the charges leveled against her. She be set at liberty if not required in any other case. Bail Bond stands cancelled. Surety is discharged. File be consigned to Record Room.
Announced in the Open Court on 14th day of May, 2013.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North Distt: Rohini Courts: Delhi
State vs. Manbara Bibi 12 of 12