Delhi District Court
State vs Mohd. Jamil And Ors. on 21 December, 2017
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL SESSIONS JUDGE 04
PATIALA HOUSE COURTS: NEW DELHI.
CNR No. DLND010000492012
SC No. 8480/16
FIR No. 10/12
PS - Special Cell
U/s 21 (c) r/w section 29 of NDPS Act.
State
Vs.
1. Mohd. Jamil
S/o Mohd. Aakil
R/o A467, JJ Colony,
Bawana, Delhi.
2. Mohd. Salim @ Mamu
S/o Allah Mian @ Allah Raji
R/o C432, Gokul Puri, Delhi.
State VS Mohd. Jamil and ors.
FIR no. 10/2012
PS - Special Cell Page no. 1/61
3. Mohd. Hussain @ Lalu @ Langra
S/o Mohd. Yaseen
R/o O13, First Floor,
Aaloo Mandi, Kidwai Nagar, PS Juhi,
Kanpur, UP
Date of Institution : 12.07.2012
Date of Arguments : 08.12.2017
Date of Judgment : 21.12.2017
JUDGMENT:
1. In brief case of the prosecution as per chargesheet is:
(a) On 18.04.2012 at about 6.00 am PW2 ASI Rakesh Kumar, received a secret information through telephone in the office of Special Cell/NR that one Md. Jamil R/o Bawana Jhuggis and Md. Salim R/o CBlock, Gokul Puri, Delhi, used to supply heroine and they procure the heroine from Md. Hussain @ Lalu @ Langra, a big supplier of heroine. It was further informed that on the said date Md. Salim, would come out of his house to deliver large consignment of heroine near his house. The State VS Mohd. Jamil and ors.FIR no. 10/2012 PS - Special Cell Page no. 2/61
said information was recorded vide DD no. 31 and the secret information was also reduced into writing. The said DD no. 31 and secret information was informed to ACP Subhash Tandon on telephone at his residence. ACP directed to take appropriate action in the matter.
b) Thereafter, a raiding team consisting of ASI Rakesh Kumar, ASI Ranjit Singh, ASI Ashok Kumar, ASI Prabodh Kumar, HC Rajbir Singh and HC Suresh Kumar was constituted. At about 6.45 am PW2 ASI Rakesh Kumar, collected the field testing kit, investigation kit and weighing machine and left the office along with all members of raiding team in two government vehicles bearing no. DL 1CJ 3566 and DL 1CM 1346. On the way PW2 ASI Rakesh Kumar requested many passersby to join the raiding party but they refused. Thereafter, raiding team reached the spot, where informer also met them. Informer told ASI Rakesh Kumar that he would inform him about delivery of heroine about about half an hour before schedule. The raiding team sat in the park in scattered position.
c) At about 2.00 pm, informer came in the park and State VS Mohd. Jamil and ors.
FIR no. 10/2012 PS - Special Cell Page no. 3/61informed that Md.Salim will deliver the heroine to Md. Jamil near his house. The said information was also reduced into writing by PW2 ASI Rakesh Kumar and he informed Inspector Attar Singh and ACP Subhash Tandon, telephonically in their offices from PCO booth. They directed him to conduct the raid. Thereafter, PW2 ASI Rakesh Kumar, requested 45 neighbours near the said house to join the raid but they all refused.
d) At about 02.15 pm one person came and stopped in front of H. No. C430. Secret informer identified him as Md. Jamil, who made a call to someone form his mobile phone. After one minute of call, one person came down from H. No. C432, who was identified as Salim @ Mamu. He was having a polythene packet in his right hand which he handed over to Md. Jamil. Both were apprehended at the spot. After leaving ASI Ranjit Singh and ASI Ashok with Md. Jamil, PW2 ASI Rakesh Kumar along with other staff and accused Salim went to H.No. C432, where a white colour polythene packet having transparent polythene packet containing Chikani Soil colour powder was recovered from an iron box. Accused State VS Mohd. Jamil and ors.
FIR no. 10/2012 PS - Special Cell Page no. 4/61Salim told them that it was heroine. Thereafter, PW2 ASI Rakesh Kumar directed the other staff present with Md. Jamil to come at the above said room. PW2 ASI Rakesh Kumar, gave his introduction and informed about the secret information to the accused persons. Thereafter, notice u/s 50 of NDPS Act was served upon accused persons and they were made to understand that they have a legal right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said right and their refusal was written on the notice by PW2 ASI Rakesh Kumar since both accused stated that they were unable to write.
e) Thereafter, PW2 ASI Rakesh Kumar, took the formal search of accused persons. From the formal search of accused Md. Jamil, a colour polythene packet having a transparent packet inside it containing Chikani soil colour substance in powder form was recovered. On testing with the field testing kit, it gave positive result for heroine. The said recovered substance was then weighed and its weight came out to be 490 grams. Two samples of 5 grams each were taken out from the State VS Mohd. Jamil and ors.
FIR no. 10/2012 PS - Special Cell Page no. 5/61recovered heroine and were kept in two small poly packs and thereafter converted into cloth pullanda and were given mark A1 and A2. The polythene containing the remaining heroine was also converted into cloth pullanda and was given mark A. FSL form was filled up and the impression of the same seal was then affixed on the FSL form. Thereafter, at the instance of accused Salim, from his house, one white colour polythene packet having a transparent polythene inside it containing Chikani colour powder substance weighing 410 gms was recovered. On being checked with testing kit it also gave positive test for heroine. Two samples of 5 grams each were taken out from the recovered heroine and were kept in two small poly packs and thereafter converted into cloth pullanda and were given mark B1 and B2. The polythene containing the remaining heroine was also converted into cloth pullanda and was given mark B. FSL form was filled up and the impression of the same seal was then affixed on the FSL form. All the pullandas were sealed with the seal of RK. Thereafter, rukka was prepared by PW2 ASI Rakesh Kumar and the same was handed over State VS Mohd. Jamil and ors.
FIR no. 10/2012 PS - Special Cell Page no. 6/61to HC Rajbir Singh for registration of FIR. Seal after use was handed over to HC Suresh Kumar. HC Rajbir Singh was also handed over six sealed parcels and one FSL form with carbon copies of seizure memo of heroine with the directions to hand over the same to SHO for counter sealing and deposition of case property in Malkhana.
f) Thereafter, as per directions of ACP Spl. Cell, further investigation of the case was handed over to PW16 Inspector Attar Singh, who reached the spot at about 7.00 pm. PW2 ASI Rakesh Kumar handed over documents of the case and accused persons to him. He prepared the site plan at the pointing out of PW2 ASI Rakesh Kumar and recorded the statement of HC Suresh Kumar at the spot. Accused Md. Jamil and Md. Salim were formally arrested at 9.00 pm and 10.00 pm respectively. Their disclosure statements were recorded. As per their disclosure statement it was revealed that both used to get supply of heroine from Md. Hussain @ Lalu Langra and sometimes from Md. Shamshad (a confident of Md. Hussain @ Lalu Langra). Accused Md. Salim also disclosed that heroine recovered from them State VS Mohd. Jamil and ors.
FIR no. 10/2012 PS - Special Cell Page no. 7/61was supplied by Md. Hussain, near roundabout of Loni about two days ago from their arrest.
g) Search of house no. C432, Gokal Puri Delhi, was conducted. Thereafter, after completing investigation at the spot, they all reached the police station. PW16 deposited the personal search articles in Malkhana. Both the accused persons were again thoroughly interrogated. Accused Md. Jamil, in his supplementary disclosure statement disclosed that he had kept heroine in his house bearing No. A467, JJ Colony, Bawana, which he can get recovered. In pursuant to the said disclosure, PW16 constituted a police team consisting of ASI Shamsher Singh, ASI Ashok Kumar, ASI Ranjeet Singh, HC Hawa Singh, HC Dilawar Singh, HC Radha Kishan. Thereafter, PW16 Inspector Attar Singh along with accused Md. Jamil and above police team departed from office of Special Cell in Maruti Gypsy bearing no. DL 1CJ 3566 and reached at JJ Colony, Bawana. PW16 requested 45 public persons including neighbours of Md. Jamil, to join the investigation but none of them agreed.
h) During house search of Md. Jamil, accused Md.
State VS Mohd. Jamil and ors.
FIR no. 10/2012 PS - Special Cell Page no. 8/61Jamil took out white and red colour polythene packets from a black colour bag kept in the room. Inside the white colour polythene packet, a transparent polythene packet was found which was having matiyala (brown) colour powder. From inside the red colour polythene packet, a transparent polythene packet was found which was also having matiyala (brown) colour powder. After checking the same with testing kit it was found as heroine.
i) On weighing white colour polythene packet it was found containing 1 kg heroine, out of which two samples of 5 gms each were taken out, kept in two small polythene packets and were converted into two cloth parcels marked as C1 and C2. Remaining 990 gms heroine along with recovered polythene packets were converted into a separate cloth parcel which was marked as C.
j) On weighing red colour polythene packet it was found containing 600 gms of heroine out of which two samples of 5 gms each were taken and were kept in two small polythene packets and were then converted into cloth parcels which were given mark as D1 and D2.
State VS Mohd. Jamil and ors.
FIR no. 10/2012 PS - Special Cell Page no. 9/61Remaining 590 gms heroine along with both recovered polythene packets was converted into a separate cloth parcel which was given mark as D. FSL form was filled up.
k) Both accused persons were medically examined at Ambedkar hospital. Thereafter, PW16 Inspector Attar Singh along with accused persons and case property came back to PSSpecial Cell, Lodhi colony and handed over all parcels and FSL form along with carbon copy of seizure memo to SHO Inspector Rajender Singh, who countersealed the same and deposited the same in malkhana. PC remand of accused persons was obtained.
l) Accused Md. Hussain @ Lalu Langra, who was arrested on 18.04.2012 in case FIR no. 07/12, PSSpecial Cell from Kanpur, UP was arrested in the present case on 21.04.2012 when he was produced in the court. The mobile phones used by accused Md. Hussain @ Lalu Langra in case FIR no. 07/12, PSSpecial Cell were intercepted.
m) Permission to take voice samples of accused persons was also taken. Sample voices of all accused persons State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 10/61 were recorded by CFSL authorities in the office of Special Cell. Thereafter the sample pullandas were sent to FSL, Rohini. After receiving the reports from FSL with respect to the contraband, the present chargesheet was filed.
2. In view of the allegations against the accused persons in the chargesheet, three separate charges have been framed against accused persons. Vide first charge, charge u/s 21 (c) r/w section 29 of the NDPS Act was framed against accused Md. Jamil and Md. Hussain @ Lalu @ Langra that on or before 19.04.2012 both of them entered into a criminal conspiracy for dealing in illicit trafficking of drugs and pursuant to that conspiracy on 19.04.2012, accused Md. Jamil got recovered 1.6 kg of heroine which was supplied by accused Md. Hussain @ Lalu @ Langra. Second charge u/s 21 (c) r/w section 29 NDPS Act was framed against accused Md. Salim and Md. Hussain @ Lalu @ Langra that on or before 18.04.2012 both of them entered into a criminal conspiracy for dealing in illicit trafficking of drugs and pursuant to that conspiracy on 18.04.2012, accused Md. Salim got recovered 410 gms of heroine which was State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 11/61 supplied to him by accused Md. Hussain @ Lalu @ Langra. One common charge, charge u/s 21 (c) r/w section 29 NDPS Act was also framed against all accused persons.
3. The prosecution in order to prove its case has examined 30 witnesses in all.
4. PW2 SI Rakesh Kumar, PW3 HC Suresh and PW17 HC Rajbir were members of the raiding team which had apprehended accused Md. Jamil and Md. Salim. All have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, the secret information received by PW2 was reduced into writing vide DD no. 31 and has been exhibited as ExPW2/A. The plain paper in which PW2 had reduced the secret information has been exhibited as ExPW2/B. The notices issued to the accused Md. Jamil and Md. Salim u/s 50 of the NDPS Act have been exhibited as Ex.PW2/E and Ex.PW2/G.
5. PW16 Inspector Attar Singh is the second investigating officer of the present case who has deposed that on reaching the spot he had met PW2 SI Rakesh State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 12/61 Kumar, who produced before him the accused persons and documents prepared by him. He further testified that he prepared the site plan at the pointing out of PW2 ASI Rakesh Kumar and recorded the statement of HC Suresh Kumar at the spot. Accused Md. Jamil and Md. Salim were formally arrested by him. Both the accused persons were again thoroughly interrogated. Accused Md. Jamil, in his supplementary statement disclosed that he had kept heroine in his house bearing No. A467, JJ Colony, Bawana, which he can get recovered. In pursuant to the said disclosure, PW16 constituted a police team consisting of ASI Shamsher Singh, ASI Ashok Kumar, ASI Ranjeet Singh, HC Hawa Singh, HC Dilawar Singh, HC Radha Kishan. He further testified that search of house of accused Md. Jamil was conducted and heroine was recovered. Both accused persons were medically examined at Ambedkar hospital.
6. PW16 further testified that thereafter he along with accused persons and case property came back to PS Special Cell, Lodhi colony and handed over all parcels and FSL form along with carbon copy of seizure memo to State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 13/61 SHO Inspector Rajender Singh, who countersealed the same and deposited the same in malkhana. PC remand of accused persons was obtained.
7. PW1 SI Gyan Chand, was posted as SO to ACP/NR at Special Cell/NR at the relevant time. He testified that on 18.04.2012 at about 099.30 am, he got received the entry of secret information and DD no. 31 and produced the same before ACP, when he came at office. He made entry in this regard in diary register no. 19 at Sl. no. 928 and 929 in his own handwriting. He proved the original secret information as Ex.PW1/A, copy of DD entry no. 31 dated 18.04.2012 as Ex.PW1/B and copy of diary register as Ex.PW1/C. He further testified that on 19.04.2012, he received written secret information and a report u/s 57 NDPS Act from ASI Rakesh Kumar and PW16 Inspector Attar Singh also produced report u/s 57 NDPS Act regarding arrest of accused persons and seizure of incriminating articles. He proved the secret information as Ex.PW1/D, report u/s 57 NDPS Act regarding seizure of heroine as Ex.PW1/E and report u/s 57 NDPS Act regarding arrest of accused persons and seizure of State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 14/61 incriminating articles as Ex.PW1/F. He made entry of the above said articles in diary register at Sl. No. 939, 940 and 941 respectively and proved the same as Ex.PW1/G and Ex.PW1/H respectively. He further proved report u/s 57 NDPS Act regarding seizure of 1.6 kg of heroine from the house of accused Md. Jamil as Ex.PW1/l and entry in this respect in diary register at Sl. no. 954 as Ex.PW1/J. He also proved report u/s 57 NDPS Act regarding arrest of accused Md. Hussain as Ex.PW1/K and entry in this respect in diary register at Sl. no. 963 as Ex.PW1/L.
8. PW4 SI Uma Shankar Tiwari, testified that on 23.04.2012, he took one request letter to CFSL, CBI, Lodhi Colony regarding taking of voice sample of accused Md. Hussain @ Lalu Langra. He further testified that on the same day CBI officers namely Sh. A.D. Tiwari and Vinay T. Abrahim, came to the office of Special Cell/NR and took voice samples of accused Md. Hussain in a blank CD. The said CD was then packed and sealed with the seal of ASY and was given mark S3.
9. PW5 Sh. Deepak, is the Nodal Officer, Vodafone, who proved the Customer Application Form (CAF) State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 15/61 pertaining to mobile no. 8588964875 in the name of Md. Jamil S/o Md. Akil and copy of ID proof as Ex.PW5/A. He also proved the certified copy of call detail records of above number w.e.f. 15.03.2012 to 18.04.2012 as Ex.PW5/B. He further proved CAF pertaining to mobile no. 9899302822 in the name of Salim S/o Irfan; copy of ID proof and certified copy of call detail record of said number w.e.f. 15.03.2012 to 18.04.2012 as Ex.PW5/C and Ex.PW5/D respectively. He also proved the certificate issued u/s 65 B Evidence Act as Ex.PW5/E and Ex.PW5/F respectively and cell ID chart of Vodafone Delhi as Ex.PW5/G (Colly).
10. PW6 Sh. A.D. Tiwari, SSOI Photo Division, CFSL, Block No. 4, CGO Complex, had taken the voice samples of accused persons.
11. PW7 ASI Raj Singh, Special Cell, testified that on 20.04.2012 two officials from CBI namely Sh. A.D. Tiwari and Dr. Veenu Abrahim, came to the office of Special Cell/NR and took voice samples of accused Md. Jamil and Md. Saleem in two separate blank CDs.
12. PW8 Sh. Chander Shekhar is the Nodal Officer, State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 16/61 Bharti Airtel, who proved Customer Application Form (CAF) pertaining to mobile no. 8400561160 in the name of Ram Prasad and copy of ID as Ex.PW8/A and call detail record of the said number from 15.03.2012 to 18.04.2012 as Ex.PW8/B. He further proved CAF pertaining to mobile no. 8127659821 in the name of Hafiz Ahmad and copy of ID as Ex.PW8/C and call detail record of the said number from 15.03.2012 to 18.04.2012 as Ex.PW8/D. He also proved the certificate issued u/s 65B Evidence Act as Ex.PW8/E.
13. PW9 ACP Subhash Tandon, testified that on 18.04.2012 at about 6.10 am Inspector Attar Singh informed him telephonically that ASI Rakesh Kumar has received an information regarding indulgence of accused Jamil and Salim in supply of heroine and Md. Jamil will deliver big quantity of heroine to Jamil near his house C 432, Gokulpuri, Delhi. Thereafter, PW9 instructed Inspector Attar Singh to take action as per law. Original DD no. 31 was produced before him. Reports u/s 57 NDPS prepared by ASI Rakesh Kumar and Inspector Attar Singh were also produced before him and he made his State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 17/61 endorsement on the said reports.
14. PW10 ASI Ram Niwas, testified that on 20.04.2012 on the instructions of Inspector Attar Singh, he took four sample sealed pullandas mark A1, B1, C1 and D1 and two FSL forms from MHC(M) HC Sanjay vide RC no. 40/21 from malkhana and FSL forms to Rohini. He deposited the same with FSL and handed over receipt to MHC(M) HC Sanjay. He also testified that till the sample remained with him no one tampered with it and its seal remained intact.
15. PW11 Sh. S.K. Jha, Fingerprint Expert, testified that fingerprints of all arrested persons are maintained in the computer system of Fingerprint Bureau, Crime Branch, Delhi Police. On 19.04.2012 on request of Inspector Attar Singh, he had analyzed the fingerprints of accused Md. Saleem with the record available with them and found that accused Md. Saleem had earlier been arrested and convicted in 12 cases. He proved the details of said cases as Ex.PW11/A. PW11 also analyzed the fingerprints of accused Md. Hussain @ Lalu, with the record available with them and found that the same were State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 18/61 of accused Md. Hussain @ Lalu. He proved the report in this regard as Ex.PW11/B.
16. PW12 ASI Shamsher Singh, testified that on 26.04.2012 on the instructions of Inspector Attar Singh, he took priority letter and CFSL form to Special Cell, where he met ASI M. Baxla MHC(M). He had given him five pullandas containing CDs of voice samples. He took the said sealed pullandas and FSL form to Lodhi Colony, CFSL and deposited the same there and handed over the receipt to MHC(M) ASI M. Baxla. He also testified that till the time pullandas remained with him they were not tampered with. He further testified that on 24.05.2012 he was called by Inspector Attar Singh in the computer room and in his presence the intercepted mobile conversations of four mobile numbers were separated in a folder by PW16 Inspector Attar Singh and then copied in a CD. PW16 thereafter sealed the said CD in a white cloth pullanda sealed with the seal of ASY and a memo with respect to seizure and sealing of CD was prepared. He proved the said seizure memo as Ex.PW12/A. PW12 further testified that on 04.05.2012, he joined the State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 19/61 investigation of this case with PW16 and went to H. No. 46, J.J Colony, Bawana, where they met Smt. Zubeda Begum W/o Md. Jamil. She handed over photocopy of one Icard of Election Commission, a bill of NDPL in the name of Md. Jamil and the acknowledgement of Unique Identification Authority of India. He proved the seizure of the same as Ex.PW12/B and copy of above said documents as Ex.PX1.
17. PW13 Mukesh Kumar Singh, Sr. Manager, Tata Power, Delhi Distribution Ltd., had proved the record of electricity meter installed at the Bawana premises of accused Jamil. Hence, this witness was examined to prove the occupancy of Bawana premises by accused Jamil.
18. PW13 Md. Kurban is renumbered as PW13A during passing of the judgment as two witnesses Mukesh Kumar Singh and Md. Kurban appear to be referred as PW13. This witness was examined to prove that mobile no. 8506960853 issued in his name was given by him to accused Jamil. He however turned hostile and stated that he did not know any person by the name of Jamil. He State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 20/61 was crossexamined by learned Addl. PP but denied the suggestion that he handed over mobile no. 8506960853 to accused Md. Jamil.
19. PW14 Smt. Munni Begum, testified that accused Md. Salim remained as a tenant in her house C432, Gokalpuri, for about 05 months. In her crossexamination on behalf of accused persons she however stated that on 18.04.2012 as well as on 16th and 17th accused Salim had not come to the tenanted premises and on 18.04.2012 at about 11.00 or 12.00 noon, brother in law of accused Salim handed over vacant possession of premises to her informing that Md. Salim has been arrested.
20. PW15 Azad Khan is the son of landlady PW14. He corroborated the testimony of PW14 qua the tenancy of accused Salim. In his crossexamination by learned defence counsels this witness also stated that accused Salim was not present in the tenanted premises on 18.04.2012 and brother in law of accused Salim on the morning of 18.04.2012, had handed over vacant possession of premises intimating that accused Salim has been arrested by police at about 8.30 am. He also stated State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 21/61 that even on 15, 16, 17 Salim did not come to their house as he was in the house of his brother in law Alim as accused was not well.
21. PW18 Inspector Rajender Sehrawat was posted as SHO PSSpecial Cell on 18.04.2012. He testified that at about 7.00 pm he was in his office, when HC Rajbir, handed over a rukka to duty officer for registration of case. Thereafter, HC Rajbir also handed over six pullandas Mark A1, A2, A and B1, B2, B, sealed with the seal of RK, one FSL form having same seal and carbon copies of seizure memos to him. He put his own seal of RSS and signatures on all the pullandas and FSL form. He then handed over all the articles to PW19 MHC(M) ASI M. Baxla. He similarly deposed about receipt and further deposition to Malkhana, of six pullandas by him on 19.04.2012 as C1, C2, C and D1, D2, D by Inspector Attar Singh along with one FSL form and carbon copy of seizure memo.
22. PW19 ASI Mathias Baxla was working as MHC(M) PSSpecial Cell on 18.04.2012. He corroborated testimony of PW18 about deposition of case property in malkhana.
State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 22/61 He further testified deposition of other articles by PW16 IO Inspector Attar Singh including the articles seized from the personal search and house of accused persons. He also deposed that on 20.04.2012, PW16 Inspector Attar Singh deposited two CDs mark S1 and S2 sealed with the seal of JT. Again on 23.04.2012 PW16 deposited one CD mark S3 sealed with the seal of ASY. On 24.04.2012 PW16 again deposited three CDs mark Q1, Q2 and Q3 sealed with the seal of PK and RSS and another CD sealed with the seal of ASY. He made relevant entries with regard to all the deposits.
23. PW20 HC Sanjeev was also working as MHC(M) PSSpecial Cell on 20.04.2012. He handed over the pullandas to HC Ram Niwas vide RC No. 40/21/2012 Ex.PW20/B for depositing the same in FSL Rohini. Photocopy of the receipt issued by FSL Ex.PW20/C, deposited by HC Ram Niwas was also proved by him.
24. PW21 Mr. Sanjay, LDC in the office of Asstt.
Electoral Registration Officer (AERO), Bawana (SC), proved computerized copy of electoral record of accused Md. Jamil as Ex.PW21/A, corroborating PW13 Mukesh State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 23/61 Kumar Singh about occupancy of H. No. 467, Block A, J.J. Colony, Bawana, by accused Jamil.
25. PW22 Hussain M. Zaidi, Nodal Officer, Idea Cellular, proved certified copies of CAFs of mobile nos. 8057579824, 8576992313 and 8506960853 along with their CDRs and certificate u/s 65 of Evidence Act subscribed in the names of Gaffar S/o Yakub, Md. Asif S/o M.O. Hussain and Md. Kurban S/o Tafazul.
26. PW23 Dr. Aadesh Kumar, Sr. Scientific Officer, testified that on 20.04.2012 four sealed cloth parcels mark A1, B1 sealed with the seal of RK and RSS and C1, D1 sealed with the seal of ASY and RSS along with two forwarding letters (FSL forms) were received at FSL Rohini and were handed over to him for chemical examination . The parcels were examined by him. Exhibit A1 was found to contain phenobarbitone 0.3% and diacetylmorphine 1.1%, exhibit B1 was found to contain diacetylmorphine 1.4%, exhibit C1 was found to contain phenobarbitone 11.5% and alprazolam 1.7% and exhibit D1 was found to contain phenobarbitone 1.2%, diacetylmorphine 1.1% and alprazolam 0.7 %. He proved State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 24/61 his report as Ex.PW23/A and photocopy of the FSL form as Ex.PW23/B.
27. PW24 Inspector Vivek Pathak, Narcotic Cell, Crime Branch, Chattarpur, proved previous conviction of accused Md. Hussain @ Lalu Langra.
28. PW24 HC Hawa Singh is renumbered as PW24A during passing of the judgment as two witnesses Inspector Vivek Pathak and HC Hawa Singh both were referred as PW24. PW24 and PW25 HC Dilawar Singh, joined the investigation with PW16 Inspector Attar Singh on 19.04.2012. They both have deposed on the similar lines and corroborated PW16.
29. PW26 Vinu T. Abrahim, Scientific Assistant deposed that he was working with CBI Delhi on 20.04.2012. On receipt of letter received from CP, Special Cell, he along with PW6 A.D. Tiwari went to the office of ACP, Special Cell Rohini and met with Inspector Attar Singh. Both the officials from CBI were informed that they were required to record voice samples of accused persons Md. Jamil, Md. Salim and Md. Hussain. PW6 A.D. Tiwari then proceeded to record specimen voice State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 25/61 sample of accused persons in two blank CDs. After recording of their voice samples the CDs were sealed.
30. PW27 Sh. Amitosh Kumar, SSO Grade II cum Assistant cum Chemical Examiner, CFSL testified that on 25.04.2012 a request letter from Additional Deputy Commissioner of Police, Crime was received in the office of CFSL along with five sealed parcels, specimen seal impression and copy of transcription. The parcels were containing five CDs marked as Q1, Q2, S1, S2 and S3. The questioned and specimen voice contained in the said CDs were transferred to the instrument namely Speech Science Lab for examination. After comparing and identifying the questioned voice with specimen voice of accused persons it was opined that the same were of accused persons. He proved his report as Ex.PW27/A.
31. PW28 ASI Ashok, was working as MHCR with PS Special Cell. He produced DD registers containing DD no. 8A and 10A dated 18.04.2012 and FIR register containing FIR no. 10/12 which was written by ASI Satyavir Singh (since expired). He proved the carbon copy of FIR no. 10/12 as Ex.PW28/A and photocopies of DD no. 8A and State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 26/61 10A dated 18.04.2012 as Ex.PW28/B and Ex.PW28/C respectively.
32. The entire aforementioned evidence was put to all the accused persons at the time of recording of their statement u/s 313 Cr.PC which was denied by them.
33. Accused Md. Jamil stated that he was innocent and has been falsely implicated in the case due to quarrel with informer of police on 10.04.2012 and previous rivalries with Delhi Police. He was forcibly taken by police on 17.04.2012 from Meerut Bus Stand under the pretext of some inquiries. He was kept captive in police station where he was brutally tortured and his signatures were taken on many blank papers and subsequently the said papers were used as documents in the present case. He had nothing to do with regard to alleged recovery of contraband and had never contacted the accused persons of the present case. He was barber and junker by profession and police had wrongly arrested him.
34. Accused Md. Salim stated that he was innocent and has been falsely implicated in the case due to previous State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 27/61 rivalries with Delhi Police. He was forcibly taken by police from the house of his brother in law under the pretext of some inquiries. He was kept captive in police station where he was brutally tortured and his signatures were taken on many blank papers and subsequently the said papers were used as documents in the present case.
35. Accused Md. Hussain @ Lalu @ Langra stated that he was innocent and has been falsely implicated in the case due to previous rivalries with Delhi Police. He was forcibly taken by police from his house situated at O13, Kidwai Nagar, Aloo Mandi, Kanpur under the pretext of some inquiries. He was kept captive in police station where he was brutally tortured and his signatures were taken on many blank papers and subsequently the said papers were used as documents in the present case. He had nothing to do with regard to alleged recovery of contraband and had never contacted the accused persons of the present case. He was having business of making bricks and hence he had come across innumerable persons either personally or over phone.
State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 28/61
36. Accused persons chose to lead evidence in defence.
37. DW1 Ms. Heena Kausar, is the wife of accused Md.
Jamil, who testified that he had come to Patiala House Courts as she had come to know that her husband Md. Jamil had been arrested from Meerut, UP and would be produced at Patiala House Courts. However, she do not remember the date of her visit. Her husband told her that police had picked him up from Meerut, as he had gone to meet his uncle Nasruddin on 16.04.2012. She relied upon the information obtained under RTI wherein it was informed that Inspector Attar Singh and others had visited Meerut in connection with case FIR no. 7/12 and FIR no. 10/12 as document Mark DA.
38. DW2 Ms. Shahjahan, testified that accused Md.
Salim was his brother in law. She, her family and accused Md. Salim used to stay at D420, Gokulpuri, Delhi. She proved the Adhaar cards of herself and accused Md. Salim @ Salim Khan as Ex.DW1/A1 and Ex.DW1/A2. On 18.04.2012, at about 6.30 am four persons came to her house and knocked her door. She got awake her husband and accused Md. Salim and opened State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 29/61 the door. Those persons were in civil clothes and entered her house and inquired about accused Md. Salim. They took accused Md. Salim, under the garb of inquiries. She and her husband stopped them. On inquiries, those persons told her that they were from Delhi Police. From their conversation, she came to know the names of two persons as Rajbir and Attar Singh. Police officials threatened them not to make any complaint and forcibly took accused Md. Salim along with them. Later on she came to know that accused has been booked in some false case.
39. DW3 Ms. Rehana Praveen, is the wife of accused Md. Hussain. She testified that on 18.04.2012, she was residing along with his family at H. No. 13, OBlock, Aloo Mandi, Kidwai Nagar, Kanpur, UP. On that day at about 5.305.45 am some police officials who were in civil clothes entered her house forcibly and inquired about her husband. Thereafter, they took her husband under the garb of inquiries. She tried to stop them. From their conversation she came to know that those persons were from Delhi and she further came to know the name of two State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 30/61 persons as Jitender Tiwari and Vijender. They threatened her not to make any complaint and took her husband forcibly with them. Subsequently, she came to know that her husband was booked in some false case.
40. The court has heard arguments addressed by learned S.K. Kain learned Addl. PP for State and learned Senior Advocate Sh. Sanjeev Kumar assisted by Sh. Ravi Quazi Advocate for accused Md. Jamil and Sh. S.S. Dass learned Advocate for accused Md. Salim and Md. Hussain @ Lalu @ Langra and has also gone through the record carefully.
41. Learned Sh. S.K. Kain, Addl. PP for State has submitted that the prosecution has proved its case against all accused persons beyond reasonable doubt. Sh. Kain has argued that though no independent public witness was joined in the investigation or recovery proceedings, however the police officials examined in the case have corroborated each other and have no enmity against either of the accused to depose against them.
42. He has also argued that accused Jamil is a habitual offender and is previously involved in 12 cases and that State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 31/61 accused Md. Hussain is also a previous convict. Sh. Kain has also argued that there is intercepted conversation of accused persons and positive matching of their voice samples with said conversation.
43. Per contra, learned counsels for accused persons have submitted that prosecution has miserably failed to prove its case against either of accused and all accused are entitled for honourable acquittal.
44. Points for determination culled out on the basis of arguments of parties and the findings of the court on the same are as follows : SPOT PROCEEDINGS AT GOKUL PURI AND ARREST OF ACCUSED MD. JAMIL AND MD.
SALIM DOUBTFUL: First recovery from accused Md. Jamil (490 gms) and Md. Salim (410 gms) at H. No. C432, Gokulpuri, Delhi.
45. As per prosecution story accused Md. Jamil as well as accused Md. Salim were both apprehended outside H. No. C432, Gokulpuri, Delhi on 18.04.2012. The said State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 32/61 house no. C432, Gokulpuri was taken on rent by accused Md. Salim from one Smt. Munni Begum. The said Munni Begum and her son Sh. Azad Khan were cited as prosecution witnesses in order to prove that H. No. C432, Gokulpuri was occupied by accused Md. Jamil. Munni Begum was examined as PW14 and Sh. Azad Khan was examined as PW15. Both these witnesses categorically stated that on 18.04.2012 by 1112 Noon, accused Salim had already vacated the room at H. No. C432, Gokulpuri through his brother in law Aleem. It was stated by PW14 that at around 1112 O' clock on 18.04.2012 Aleem (brother in law of accused Salim) had come to her and had informed her that accused Salim had been arrested by police at around 8.30 am on 18.04.2012 itself. She further stated that even on 1617/04/2012 accused Salim had not come to tenanted premises. Similar statement was given by PW15 Azad Khan. He also stated that on 18.04.2012, accused Salim was not present in the tenanted premises and he was actually not coming to the tenanted premises since 15.04.2012 and that on 18.04.2012 brother in law of accused Salim had State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 33/61 come to their house and told them that accused Salim had already been arrested by police at around 8.30 am. He also corroborated that on 15th, 16th and 17th accused had not come to the tenanted premises and was in the house of Aleem as he was not well.
46. Testimony of PW14 and PW15 is corroborated by DW1 Ms. Shahjahan, wife of accused Aleem Khan. She testified that in the morning of 18.04.2012 some persons who told themselves as officials of Delhi Police had come to her house at D420, Gokulpuri, Delhi on the pretext of making some inquiries from accused Md. Salim. From their conversation she could know names of two persons as Rajbir and Attar Singh. Accused Salim was forcibly taken by them and was booked in the false case.
47. In addition thereto version of police officials about the visit of premises i.e. C432, Gokulpuri Delhi, on the relevant date and time is not trustworthy. In his cross examination recorded on 06.05.2013 PW2 initial IO SI Rakesh Kumar stated that second floor of H. No. C432, where accused Salim was staying was having one room only and its size was 10 x 10 feet. However, in his later State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 34/61 crossexamination he changed his version and on 16.07.2013 stated that floor of accused Salim was having a kitchen, toilet and veranda also. PW3 HC Suresh another member of raiding team stated that width of verandah was about 5/6 x 5/6 yards, the size of room of accused Salim was 10 x 10 feet, size of bathroom was 4 x 5 feet and size of kitchen was 5x5 feet. It is rightly submitted by defence counsel that from these calculations size of plot would be more than 50 sq yards. However, it is admitted by PW3 that plot size of the said house was 25 sq yards. Similarly, PW16 and PW17 other members of raiding party have given different descriptions of the house allegedly occupied by accused Salim.
48. Furthermore, no videography or photography of the spot was conducted nor any electronic evidence including tower location of mobile phones has been produced on record to suggest that accused persons were present at the spot or locality on the relevant date and time.
Non joining of independent witness:
49. As per prosecution case raiding team reached at State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 35/61 Gokulpuri at about 7.30 am and since 7.30 am to 2.15 pm the raiding team waited for signal from the secret informer. After 2.15 pm accused Jamil and Salim were apprehended. From the testimony of IO PW16 Attar Singh as well as from the arrest memo of accused Jamil and Salim, it is revealed that they were arrested at 9.00 pm and 10.00 pm respectively. Hence, there was sufficient time with the raiding party to join the independent witness. It might be rightly submitted by learned Addl. PP that public persons are generally not willing to become witnesses of the proceedings conducted by the police. However, court do not see any serious efforts made for joining of independent witness. During this entire period police has not named even a single person who was asked to join investigation.
50. In the case of Mohd. Masoom Vs State of NCT of Delhi, Crl. A. 1404/2011, Hon'ble High Court of Delhi quoted the observations of Hon'ble High Court in the case of Ram Prakash Vs State 2014 (146) DRJ 629, as follows : "... 16. Mr. Gaur pointed out that State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 36/61 while the Appellant was apprehended around 3.30 pm, the formal arrest was recorded at 11 pm i.e. after eight hours. Throughout this period the police remained present at the spot and yet they could not get a single public witness to be associated.
17. This is perhaps the weakest line in the entire case of the prosecution. In his evidence PW9 stated that "he requested 5 6 public persons to join the proceedings but they did not join the investigation." It is not clear who those public persons were. Their names were not noted. In his cross examination PW9 stated "People who were managing the parking were present in the parking. I did not call any person from the parking, any employee of the Railway and the police officials deployed there to join the proceedings."
18. It seems extraordinary that although PW9 and the entire raiding party remaining at the spot i.e. the parking lot of Old Delhi railway Station, well be beyond 11.15 pm, i.e. nearly eight hours (they ultimately left the spot at 11.45 pm to reach the Crime Branch at 12.30 am) they were unable to locate a single public witness including any railway official or any personnel of any State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 37/61 other security force to be associated in the proceedings.
19. The trial Court has referred to the decision in Ajmer Singh Vs State of Haryana 2010 (2) RCR (Crl) 132 to hold that the failure to associate independent witness is not fatal to the prosecution case, as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision the Supreme Court emphasised that it had to be shown that after making efforts, which the Court considers in the circumstances of the case reasonable, the police officer was not able to get public witnesses to associate with either the raid or the arrest of the culprit. In other words in every case it will have to be examined whether serious efforts made by the police to associate public witnesses. In Ram Swaroop Vs State (Govt. of NCT of Delhi) (2013) 14 SCC 235 the Supreme Court found the evidence of the police witnesses "absolutely unimpeachable" and therefore held that the failure to associate independent witnesses did not affect the prosecution case. However, as will be seen hereafter, that cannot be said of the prosecution witnesses in the present case.
20. In the present case as already State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 38/61 noticed the entire raiding party remained at the Old Delhi Railway parking lot which is an extraordinarily busy area from around 3.30 pm till midnight. This is a place where apart from security personnel, there are bound to be parking attendants and railway employees as well. The IO in his crossexamination has admitted that he did not make any effort to associate any such member of the security forces (including the railway forces, parking attendants or railway employee). In other words no sincere effort was made.
21. It has almost become a routine practice for the police to state that passersby were asked to join and they declined and went away without disclosing their names. The Court should be way of readily accepting such explanations. In a case where a raid takes place in broad daylight in a busy area, a more convincing explanation has to be offered why despite remaining at the spot for about eight hours the police did not find a single public witness to join the proceedings. (emphasis supplied).
51. In the case in hand also despite ample opportunity and time for the investigating agency to associate any State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 39/61 independent witnesses, no such witness was joined which further makes the prosecution case doubtful and accused persons are entitled for benefit of doubt.
52. In the case in hand joining of independent witnesses was further necessary in view of the fact that both accused persons, as per admitted testimony of PWs were illiterate which were unable to read and write. The contents of the notices or the documents served upon them including section 50 NDPS Act and further procedural safeguards before their search and seizure were required to be explained to them. Police was expected to associate some independent person to read over or to witness the documents being explained to accused persons.
Non production of log book:
53. In the present case two government vehicles bearing No. DL 1CJ 3566 and DL 1CM 1346 were used by the raiding team to visit spot i.e. at C432, Gokulpuri. But log book of neither of vehicle was produced in court.
54. In the case of Ram Prakash Vs State (Supra), State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 40/61 Hon'ble Delhi High Court while appreciating the evidence, opined that the production of log book joined in the investigation will go long way to prove or disprove a criminal case and observed as under: "24. It is also in the above context with the failure to produce the log book for the movement of the vehicle of the raiding party and the failure to examine the driver Rajesh assumes significance. There should have been no difficulty at all in producing such evidence if needed the raiding party moved to the spot from their office in a government vehicle driven by Constable Rajesh Kumar."
Safe custody and transportation of case property/samples :
55. As per testimony of PW2 he sealed the initial recovery of contraband from accused Jamil and accused Salim with the seal of RK. Thereafter, PW18 SHO Inspector R.S. Sehrawat, put his own seal on the pullandas. Hence, seal of RK as well as RSS should be available on the case property and sample pullandas. However, when road certificate Ex.PW20/B is seen, there is no mention of the seal of RSS on the sample pullandas State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 41/61 which were sent to FSL for examination. In the facts and circumstances it is rightly submitted by learned defence counsels that either the seal of RSS was not affixed on the pullandas at the time of taken over from malkhana or the safe custody of the same was compromised. In addition thereto original or duplicate of the FSL form with seal was not filed in court to verify any sample seal.
Compliance of section 52 (3) NDPS Act not made :
56. As per section 52 (3) NDPS Act case property as well as accused persons after arrest were required to be produced before the SHO. PW18 Inspector R.S. Sehrawat or IO of the case have not stated in their examination or incharge sheet that accused persons were produced before him.
RECOVERY OF 1.6 KG OF HEROINE AT THE INSTANCE OF ACCUSED JAMIL FROM H. NO.
A467, J.J. COLONY, BAWANA, DELHI: Non compliance of section 41 and 42 NDPS State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 42/61
Act:
57. The second set of recovery of 1.6 kg of heroine was allegedly made on the information provided by accused Jamil in his supplementary disclosure statement. It is rightly submitted by learned Sh. Ravi Quazi, that if accused Jamil had made any such disclosure statement the same was an information qua recovery of narcotic drugs under NDPS Act and it was required to be taken down in writing under subsection 2 of section 42 and was further required to be placed before the superior officer of PW16 Inspector Attar Singh. Moreover, as per the mandate of section 41 (1) NDPS Act, the search of the premises of accused Jamil could have been conducted by a Magistrate, as per subsection (2) section 41 such Magistrate could have authorized any of his subordinate officer to conduct such search of the building or house of accused Jamil. In the case in hand IO PW16 Inspector Attar Singh did not put the disclosure statement of accused Jamil before his superior officer, he was not authorized u/s 41 (1) NDPS Act to conduct search. None of the officer mentioned u/s 41 (1) NDPS Act had State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 43/61 authorized him to conduct search of the house of accused Jamil. Hence, the entire search and seizure from the house of accused Jamil is vitiated because of non compliance of section 41 and 42 of NDPS Act.
58. In the case of Directorate of Revenue Intelligence Vs Manjinder Singh Crl. L.P. 310 of 2013 dated 23.01.2014, Hon'ble High Court of Delhi upheld the decision of learned trial court. Learned trial court in that case had held that sections 41 and 42 of NDPS Act were not complied with since the Investigating Officer (IO) did not possess a valid authorization to effect the seizure. The authorization was given in favour of one officer but the seizure of the case was effected by another in whose favour there was no authorization, though the said officer who affected seizure was himself a member of raiding party.
59. In the case in hand the proceedings are conducted by the officer not authorized at all. Hence, it was held that provisions of section 41 and 42 of NDPS are not complied with.
60. In the case of State of Punjab Vs Balbir Singh State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 44/61 1994 3 SCC 299, Hon'ble Apex Court in para 25 of the judgment summarized the effect of noncompliance of section 41 and 42 as follows :
25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug of psychotropic substance then the police officer, who is not empowered should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards he should carry out the investigation with the other provisions of the NDPS Act.
State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 45/61 (2A) Under section 41 (1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in section 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of NDPS by anyone other than such officers, the same would be illegal.
(2B) Under Section 41(2) only the empowered officer can give the authorization to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would effect the prosecution case and vitiate the conviction. (2C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 46/61 writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed for materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would effect the prosecution case and vitiate the trial. (3) under section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total noncompliance of this provision the same effects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
61. In the case of State of Rajasthan Vs Jagraj State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 47/61 Singh Alias Hansa, (2016) 11 SCC 687, Hon'ble Apex Court has held that compliance of section 42 NDPS Act is mandatory and accused would be seriously prejudiced if the said provision is not complied and would be entitled for acquittal.
62. Hence, it is rightly submitted by learned defence counsels that the second set of recovery at the instance of accused Jamil is vitiated.
Non joining of independent witness :
63. As noted in the first set of recovery, no independent witness was joined even at the time of recovery of 1.6 kg of heroine from the house of accused Jamil at Bawana. Safe custody and transportation of case property/samples :
64. As per testimony of PW16 he sealed the recovery of 1.6 kg of contraband from accused with the seal of ASY. Thereafter, PW18 SHO Inspector R.S. Sehrawat, put his own seal on the pullandas. Hence, seal of ASY as well as RSS should have been available on the case property and sample pullandas. However, when road certificate Ex.PW20/B is seen, there is no mention of the seal of RSS State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 48/61 on the sample pullandas which were sent to FSL for examination.
No electronic evidence:
65. In this set of recovery also no videography or photography was conducted during the recovery of 1.6kg of heroine.
CASE OF CONSPIRACY AGAINST ACCUSED PERSONS:
66. It is stated that the drugs allegedly recovered from accused Md. Jamil and Md. Salim, were supplied by accused Md. Hussain @ Lalu @ Langra, therefore all accused persons entered into conspiracy and committed offence u/s 29 of the Act.
67. The court has already discussed that the recovery of narcotics from the possession or at the instance of accused Md. Jamil and Md. Salim is under serious shadow of doubt. It is rightly submitted by learned defence counsel that prosecution has not been able to establish the charge of conspiracy against either of accused. There is nothing on record to suggest when the State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 49/61 narcotic drugs were supplied by accused Md. Hussain to accused Salim. There are only a disclosures statements of coaccused persons that the narcotics were given to him by accused Md.Hussain @ Lalu @ Langra near Loni round about, about two days prior to their arrest. Therefore, if this disclosure statement is considered, the drugs would have been supplied by accused Md. Hussain on 16.04.2012. It is important to mention here that accused Md. Hussain is the resident of Kanpur, UP. There is nothing on record to suggest that he visited Delhi on that particular date or any other date in order to supply narcotics and/or accused Salim visited Kanpur, in order to receive supply of narcotics from him. There is even no location chart of any of the mobile phone or electronic device allegedly used by either of accused to corroborate that they were present together at any place or at any point of time.
68. Learned Addl. PP for State has heavily relied upon the alleged telephonic conversation of accused persons intercepted by the police.
69. Court has carefully perused the transcript of the State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 50/61 alleged conversation between the accused persons. It is important to mention here that the last transcript is dated 14.04.2012. The date of first conversation, transcript of which is attached is 10.02.2012. It is rightly submitted by learned Sh. Ravi Quazi that even if the transcript attached with the chargesheet is taken on its face value, it cannot be concluded that there was a conspiracy for supply of the contraband on 16.04.2012 allegedly by accused Md. Hussain to either of the accused in this case. It cannot be verified from the transcript that accused persons were dealing in heroine. Further there is nothing to suggest that there was any meeting of mind for transportation or delivery of the consignment allegedly recovered from accused Md. Jamil and Salim. Moreover, the location of either of accused is not clear even from reading of the transcript. Hence, even it cannot be verified from where the calls were made and where the same were received. Hence, neither of accused can be convicted even if the alleged transcript are taken on their face value.
70. Furthermore, learned Senior Advocate Sh. Sanjeev State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 51/61 Kumar appearing on behalf of accused Jamil, has relied upon judgment in the case of Ashish Kumar Dubey Vs State through CBI, 2014 III AD (CRI) (DHC) 421, and has submitted that prosecution is unable to authentically prove that calls of any of accused persons were intercepted and voice was authentically downloaded from micro cassette recorder or voice samples were properly taken or examined.
71. Learned Sr. Advocate has referred to the testimony of PW16 Inspector Attar Singh. In his examination in chief recorded on 22.11.2013 he stated "On 24.04.2012, 7 selective intercepted calls of mobile number used by Mohd. Jamil in communicating with Mohd. Hussain were copied in a CD which was marked Q1. The particulars of case were written on the said CD and it was kept in an envelope and sealed with the seal of PK. 7 selective intercepted calls of mobile number used by Mohd. Saleem in communicating with Mohd. Hussain were copied in a CD which was marked Q2. The particulars of case were written on the said CD and it was kept in an envelop and sealed with the seal of PK. 14 State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 52/61 selective intercepted calls of mobile numbers used by Mohd. Saleem and Mohd. Jamil in communicating with Mohd. Hussain were copied in a CD which was marked Q3. The particulars of case were written on the said CD and it was kept in an envelop and sealed with the seal of PK. All three envelops marked Q1, Q2 and Q3 were taken into possession vide memo Ex.PW16/L, EXPW16/M and EXPW16/N respectively and all three memos bear my signature at point A respectively. Above sealed exhibits were deposited in the malkhana by me. On 26.04.2012 exhibits marked Q1, Q2, S1, S2 and S3 along with FSL form were deposited in FSL Rohini by ASI Samsher Singh at my direction vide RC no. 42/21/13."
72. It is thus clear that only few selective calls were taken by the IO from the micro cassette recorder. Court has perused the report of voice examination Ex.PW27/A. It is mentioned in the report that on spectrographic analysis of questioned voice and sample voice phonetic and linguistic similarities were found. However, from perusal of report, it cannot be ruled out that there was no possibility of tampering with the conversation during State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 53/61 recording of the same in CD from micro cassette recorder. The possibility of conversation being taken outofcontext and/or changing the meaning thereof by cut and paste during recording in the CD cannot be ruled out. The micro cassette recorder before the court was not produced nor it was sent for examination. The voice samples were not examined from the angle to rule out any tampering at the stage of loading the same in CD. In the case of Ashish Kumar Dubey Vs CBI through CBI (supra) Hon'ble High Court of Delhi recalled the requirements of law as laid down in the case of Ram Singh Vs Col. Ram Singh 1985 Supp. SCC 611 as follows : "(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidence - direct or State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 54/61
circumstantial.
(3) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of the Evidence Act. (5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
73. The Hon'ble High Court further observed as follows :
42.The MCR used in the present case by PW6 to record the conversation was not submitted to CFSL. Without the device being examined and without the cassette itself being examined for ruling out the possibility of tampering, one of the important requirements spelt out in Ram Singh V. Col. Ram Singh was not satisfied in the present case. This rendered the Q3 cassette an inadmissible piece of evidence.
43. In the present case as already noticed although the voice may have been identified by PW6 to be that of Appellant, the third test in State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 55/61 Ram Singh's case that the tape recorded conversation must be shown to be not tampered or capable of being tampered, has not been sastisfied.
44. PW6 herself was not a witness to the demand by the Appellant or bribe from PW5. She had only purportedly heard of the demand of bribe from PW5. The only time she could have heard of the demand was during her conversation with the appellant on 19th August 2002. The court finds that the transcript of the conversation between her and the Appellant does not clearly spell out the demand by the Appellant of the bribe amount of Rs.8,000. The transcript of the conversation, and in particular,the relevant portions have been marked 'AA' to 'EE' and have been set out in detail in the judgment of the learned trial Court. In appreciating the above conversation, it must be remembered that the shadow witness (PW4) was pretending to be an informer and PW5 was supposed to introduce PW4 in that capacity to the Appellant. He was perhaps to be paid for passing on information. One portion of the transcript contains a reference to the sum of eight thousand. However, when the entire transcript is read as a whole it is not clear whether it refers to the demand of bribe by the Appellant.
State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 56/61
74. In the present case also neither the MCR has been sent for examination nor the alleged transcript link either of the accused conclusively with the conspiracy of dealing with the narcotic drugs allegedly recovered in this case.
75. In addition thereto there are material contradictions in the witnesses associated with the recording of voice sample of accused persons. As per admitted case of the prosecution witnesses related with arrest and seizure of accused persons, all accused persons were illiterate unable to read and write but PW26 V.T. Abrahim, Scientific Assistant who assisted PW6 A.D. Tiwari in taking voice samples of accused persons has stated in his crossexamination by Sh. Ravi Quazi, counsel for accused Jamil "The accused persons were reading from the transcripts..... on 23.04.2012 the accused was also reading from the typed material given to him by the IO. I cannot say whether the said transcript was in Hindi or English. Again said, that I had not understood the question and that I want to clarify that all the State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 57/61 transcripts that the accused had read on both the dates were in Hindi." As already recorded, it is admitted that all accused persons were illiterate and were unable to read and write for this reason even their refusals to get the search by or in front of Gazetted officer or Magistrate under section 50 NDPS Act were written by police officials themselves, therefore there is no question of their reading from the transcript.
76. In addition thereto, PW26 stated that normally the CDs for recording the voice samples were provided by their office and a declaration from accused persons in writing is taken that the CDs have been shown to them and are sealed and blank, but there is no such declaration in the present case. PW6 Sh. A.D. Tiwari, stated that the CDs in which voice samples were recorded, were brought by him from CFSL. He further stated that those CDs were available in his office and that there is a register maintained in his office in which relevant entries are made at the time of taking of CDs. No such entry was produced. He further stated that accused had not given any writing about their State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 58/61 satisfaction that the CDs were blank. The court fails to understand that if there is a practice of taking declaration from the accused persons after showing the CDs, that the same were blank, why the said practice was not followed in this case. Apart from this in contradiction to the statement of PW6 that CDs were taken by him from CFSL, PW16 IO Inspector Attar Singh stated "Audio cassettes in which voice sample were recorded was obtained by me from caretaker of our office. The caretaker of the malkhana maintains the register qua such handing over of audio cassettes. I did not enclose the said copy of register indicating releasing of audio cassettes in judicial file." In the facts and circumstances the suggestion of learned defence counsel to PW6 and PW26 that they had not visited the office of the special cell for recording the specimen voice sample of accused and the CDs were delivered to them by the police becomes relevant and accused persons are entitled for benefit of doubt that their voice samples were not properly recorded or that there was no possibility of tampering during recording of their voice samples.
State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 59/61
77. In view of the aforesaid discussion, this court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against either of the accused. All accused persons are entitled for benefit of doubt and hence acquittal. Held accordingly.
78. Accused persons are thus acquitted of the charges levelled against them. They be released forthwith, if their custody is not required in any other case.
79. All accused persons have already furnished their respective bonds u/s 437A Cr.PC which are accepted and shall remain effective for a period of 6 months.
80. The articles seized vide seizure memos and personal search memos of respective accused persons be released to them against proper acknowledgment.
81. Case property, if any, be confiscated to State and the same may be disposed off as per rules and procedures State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 60/61 after the lapse of period of filing of appeal.
82. File be consigned to record room.
Announced in the open court on the 21st day of December, 2017 ( Ajay Pandey ) Addl. Sessions Judge 04, New Delhi District, Patiala House Courts, New Delhi State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 61/61
State Vs. Md. Jamil and ors.
SC no. 8480/16
FIR no. 10/12
PS: Spl. Cell
21.12.2017
Present: Sh. S. K. Kain, learned Addl. PP for the State.
All accused persons produced from JC. Sh. S.S. Dass, learned counsel for accused persons Md.Salim and Md. Hussain.
Vide my separate judgment of even date, accused persons are acquitted of the charges levelled against them. They be released forthwith, if their custody is not required in any other case. All accused persons have already furnished their respective bonds u/s 437A Cr.PC which are accepted and shall remain effective for a period of 6 months. The articles seized vide seizure memos and personal search memos of respective accused persons be released to them against acknowledgment.
Case property, if any, be confiscated to State and the same may be disposed off as per rules and procedures after the lapse of period of filing of appeal.
File be consigned to record room.
State VS Mohd. Jamil and ors.
FIR no. 10/2012PS - Special Cell Page no. 62/61
( Ajay Pandey )
Addl. Sessions Judge 04,
New Delhi District, Patiala House
Courts, New Delhi/21.12.2017
State VS Mohd. Jamil and ors.
FIR no. 10/2012
PS - Special Cell Page no. 63/61