Delhi District Court
State vs Masoom Ali on 18 February, 2014
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
State Versus Masoom Ali
S/o Sh. Amjad Ali
R/o Imli Batania Kucha
Naka Lal, Rampur
U. P.
SC No. 45A/09
FIR No. 50/09
U/S: 20 NDPS Act
PS: Hauz Khas
Date of institution : 25.07.2009
Date of reserving judgment : 11.02.2014
Date of pronouncement : 18.02.2014
Decision : Convicted
Computer ID : 02403R0222402009
J U D G M E N T
The accused has been sent to face trial by SHO PS Hauz Khaus for commission of the offence punishable U/s 20 of the NDPS Act on allegations that on 18.02.2009, the IO/PW5 Inspector Rajeev Kumar (SI at that time) was present in the above PS at around 5:30 PM when a secret informer had informed him that one person named Masoom Ali, who was a resident of Rampur, UP and was involved in the supply of charas in huge quantities in Delhi, would come on that day between 7:00 PM to 8:00 PM near the Rose Garden to supply charas to some person and he could be apprehended, if a raid was conducted. The IO/PW5 had SC No. 45A/09 State Vs Masoom Ali 2 produced the above informer before the SHO/PW2 Inspector S.P. Kukreti and the SHO had also made some inquiry from the informer and on being satisfied about the veracity of the information, he had telephonically informed the ACP Hauz Khas about the above secret information and the ACP had directed for conduction of an immediate raid in the matter.
2. It is alleged that on the directions of the ACP and the SHO/PW2, the IO/PW5 had got recorded one DD No. 30A marked A1 at the PS regarding the above information and a copy of the above DD was also sent by him to his Senior Officers in compliance of the provisions of Section 42 of the NDPS Act. The IO/PW5 had then constituted a raiding team consisting of himself, PW1 Ct. Kausar Mehandi and PW4 HC Islamuddin and they all, alongwith the secret informer, and left the PS in a private Maruti Alto Car bearing No. DL3C BC 1739 and had reached near the gate of the above Rose Garden at about 7:00 PM. After parking the above car nearby, the IO/PW5 had requested 4-5 passersby to join the raiding team, after they were apprised about the above secret information, but none of them had agreed to join and they all had left the spot without telling their names and addresses. The IO/PW5 had then briefed the members of the raiding team and they all had taken positions there near the Gate of the Rose Garden, as per the instructions of the IO/PW5.
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3. It is alleged that at about 7:30 PM, the secret informer had pointed out a person coming on foot from the side of R.K. Puram and holding one multi-colored synthetic bag having stripes, to be the same Masoom Ali about whom he had furnished the above information. After reaching at the gate of the Rose Garden, the above person had stood there on the footpath while looking to be in wait for some person and after about 5 minutes, the above person was intercepted by the police party at around 7:50 PM and on inquiry, his name was revealed as the accused Masoom Ali of this case, a resident of District Rampur U.P. The IO/PW5 had told the accused about the above secret information regarding his being involved in the supply of charas and also the possibility of his being in possession of some charas at that time for supply to anyone and the accused was also apprised that his search was required to be conducted in view of the above information and if he desired, then his search could be conducted in the presence of a Magistrate or a Gazetted Officer and the above officers could also be called at the spot. The accused was also told that if he desired, he could also take the search of the police party and the above was his legal right. The IO/PW5 had also served one written notice U/s 50 of the NDPS Ex. PW1/A upon the accused in this regard. However, the accused had given his written reply Ex. PW4/A on the said notice itself and had refused to exercise his above legal rights and his refusal was recorded by the IO/PW5 himself, on the request of the accused as the accused was illiterate.
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4. It is also alleged that thereafter, the IO/PW5 had again requested 3-4 passersby to join the proceedings, but none again had agreed to join. The IO/PW5 had then taken the above bag from the hand of the accused and on checking the same, 5 black color polythenes containing some black color 'battinuma' substance giving a sharp smell were recovered therefrom and the above substance looked like charas. The above polythenes were found wrapped with white colour doctor tape and the same were given serial No. A, B, C, D and E and their weight was found to be 5 Kg, i.e. 1 Kg each. The IO/PW5 had then taken out a small quantity of charas from the above battinuma charas of all the five packets and thus a total 100 gm of charas from the above five packets was taken by him and the same was further divided into two parts, to make it 50 gm each as two samples and these samples were kept in two separate small plastic containers (dibias) and white colour doctor tape was affixed on these containers and the same were given markings as serial no. 1 and 2 and were sealed with the seals of RK. The remaining charas of the above five packets was repacked in the same packings and these packets were then kept in the same synthetic bag, with one chunri of red colour which was recovered from the said bag, and this bag was then converted into a cloth parcel and was marked as X and sealed with the same seal of RK. Form FSL was also filled up by the IO/PW5 and the same seal affixed thereon and the seal after use was handed over to PW4 HC Islamuddin. The above parcels and SC No. 45A/09 State Vs Masoom Ali 5 FSL Form were then taken into possession vide seizure memo Ex. PW1/B.
5. After the apprehension of the accused, the IO/PW5 had prepared a rukka Ex. PW1/C and handed over the same, as well as the above three sealed parcels, FSL Form and a copy of the seizure memo, to PW1 with directions to go to the PS and to hand over the rukka to the DO and the parcels and other documents to the SHO of the PS. The above parcels etc were subsequently deposited in the malkhana of the PS by the SHO/PW2 and on the basis of the above rukka, the FIR Ex. PW3/B of this case was registered by the DO/PW3 HC Janak Raj. Further investigation of the case was assigned to PW6 ASI Chander Shekhar and he had reached at the spot, alongwith PW1 Ct. Kausar Mehandi, and he was handed over the custody of the accused as well as the relevant documents of the case by the first IO. After making some enquiries from the accused, PW6 had prepared the site plan Ex. PW6/A at the spot, interrogated and arrested the accused vide memo Ex. PW4/B and conducted his personal search vide memo Ex. PW4/C. In the personal search of the accused, one original notice U/s 50 of the NDPS Act, one mobile phone of make Nokia and some cash amount were recovered, which were subsequently deposited in the malkhana by the second IO/PW6. Both the above sample parcels of this case were subsequently deposited in FSL, Rohini by PW7 Ct. Maruti Munde on 17.03.2006 and the same had tested positive for the charas vide report dated 28.05.2009 Ex. PW6/C. After SC No. 45A/09 State Vs Masoom Ali 6 recording the statements of the witnesses and completing the other formalities of the investigation, a charge sheet for commission of the offence punishable U/s 20 was ultimately filed in this court.
6. The Charge sheet was filed in this court on 25.07.2009 and cognizance of the above said offence was taken on the same day. It is also necessary to mention here that on the request of the accused, five fresh samples were also drawn, out of the above recovered charas, in this court on 06.10.2009 for the determination of the purity percentage thereof and the same was determined vide test report dated 26.10.2009 Ex. PX (the date typed as 26.10.2008 in the report due to some typographical mistake) and the percentage of the THC content in the above samples was opined to be varying between 1.7% to 7%. A prime facie case for commission of the offences punishable U/s 20 (b)(ii)(C) of the NDPS Act was also found to be made out against the accused vide order dated 01.02.2010 and a charge for the above said offence was also framed against them on the same day.
7. The prosecution in support of its case has examined on record total 9 witnesses and their names and the purpose of examination is being stated herein below:-
8. PW1 Ct. Kausar Mehandi, PW4 HC Islamuddin and the IO/PW5 Inspector Rajeev Kumar (SI at that time) are all the members of the above raiding police team which SC No. 45A/09 State Vs Masoom Ali 7 had apprehended the accused from the above place and with the above quantity of Charas. They all have broadly deposed on the above lines of the prosecution story and have proved on record various documents prepared at the spot, in connection with the above recovered substance. They all have also identified the accused as well as the case property.
9. PW2 Inspector S.P. Kukreti is the then SHO of PS Hauz Khas. On the above date and on being informed by the IO/PW5 regarding the above information, he had conveyed the above information to the ACP Hauz Khas and had also directed the IO/PW5 for constitution of a raiding team and to act upon the said information. The above sealed parcels of the samples and the remaining case property, alongwith the FSL form and copy of the seizure memo, were also handed over to him by PW1 in the PS subsequently and he had deposited the same in the malkhana of the police station, after affixing his seals of SPK on the said parcels and the FSL form and also after writing the FIR number etc. on the parcels and the documents, and had further recorded one DD no. 33A at the police station in this regard.
10. PW3 HC Janak Raj is the duty officer of this case and he had only got recorded the FIR Ex. PW3/A of this case, through the computer operator, and made an endorsement Ex. PW3/B in this regard on the original rukka.
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11. PW6 SI Chander Shekhar is the second IO of this case and he has also broadly deposed on the above lines of the prosecution case regarding his visit at the spot, after being assigned the investigation of this case, and the arrest etc. of the accused by him and the preparation of the relevant documents in this regard.
12. PW7 Ct. Maruti Munde had taken two sealed sample parcels of this case alongwith, the FSL form, from the malkhana of the police station on 17.03.2009 and deposited the same in the FSL.
13. PW8 HC Mohar Singh is the then MHC(M) of the police station and he has also deposed regarding deposit of the above case property and personal search articles of the accused with him in the malkhana of the police station. He has also brought on record a copy of the relevant entry of his register no.19 of the malkhana regarding the above deposit as Ex. PW8/A, a copy of the RCs nos. 81/21/09 and 113/21/09 vide which the sample parcels were sent to FSL and CRCL respectively as Ex. PW8/B and Ex. PW8/D and the acknowledgment receipts issued by the said authorities as Ex. PW8/C and Ex. PW8/E respectively.
14. PW9 Sh. Amit Rawat, Senior Scientific Officer of FSL, Rohini was authorized by his senior colleague Dr. Madhulika Sharma, Deputy Director, FSL, Rohini, vide letter Ex. PW9/A, to depose in this court for proving the SC No. 45A/09 State Vs Masoom Ali 9 test report Ex. PW6/C of the above two samples of this case.
15. After conclusion of the prosecution evidence, all the incriminating evidence brought on record was put to the accused in his statement recorded U/s 313 Cr.P.C. and the same was denied by the accused to be incorrect. The accused has claimed himself to have been falsely implicated in this case while saying that he was never apprehended from the above place nor the above charas was recovered from his possession. He has also stated that on the day of incident, i.e. 18.02.2009, he was running a factory in Loni, Pushta Chowki and was was engaged in manufacturing tricycles, walkers etc, with his two younger brothers Imran Ali and Mumtaz and they all were residing in the same factory. He has stated on that day, at about 10.00 AM, he alongwith his youngest brother Imran Ali had left the factory premises on a motorcycle driven by his above brother and his brother had dropped him at the Red Light Crossing of Seelampur as he had to go to Gandhi Nagar Market via, Geeta Colony, to purchase some manufacturing parts for his factory. He has further stated that as soon as he got down on the above Red Light, some persons in civil clothes had came in a vehicle and took him to some office in the Hauz Khas area and from there he was taken to PS Hauz Khas. At the time when he was picked up by them, one Ashraf, who was his earlier partner in a business and on inimical terms with him, was also with the above persons. He had further SC No. 45A/09 State Vs Masoom Ali 10 stated that he was only having one wallet containing Rs. 21,000/- and one polythene bag containing some documents with him at that time. In the PS Hauz Khas and also in the above office, the above persons had demanded an amount of Rs.3 Lacs from him as a consideration for releasing him and when he was not able to pay the above amount, the above charas was planted upon him and he was falsely implicated in this case. He has also claimed that all the writing work was done at the PS and he was forced to sign on various documents without disclosing the contents thereof. He has also chosen to lead evidence in his defence.
16. The accused in his defence has also examined his above brother Imran Ali as DW1 and this witness has tried to substantiate the above claim of the accused regarding the accused being dropped by him from his bike at Seelampur red light on the above said day. He has also stated that the above Ashraf Ali, a previous partner of his brother/accused Masoom Ali, came to him on the same day and informed him that the accused had been kidnapped by some persons and the above persons were demanding a ransom of Rs.2 Lacs. This witness has also stated that he was informed by Ashraf Ali that the kidnappers had made some calls on his (Ashraf Ali's) mobile phone and even during his presence Ashraf Ali had received some calls from the kidnappers of his brother and even this witness was made to talk with the caller, who was a female and demanded Rs. 2 Lacs for release of SC No. 45A/09 State Vs Masoom Ali 11 the accused. This witness has also made to hear the voice of his brother Masoom Ali and he has also told the mobile numbers of above Ashraf Ali, the accused Masoom Ali and the kidnappers in his statement made in this court. He has further stated that the accused was not released by the kidnappers on 18.02.2009 and he had made the complaints Ex. DW1/A and Ex. DW1/B to the Commissioner of Police and to the Human Rights Commission in this regard and even on the next day, i.e., on 19.02.2009, one typed complaint/application Ex. DW1/C in the name of Ashraf Ali regarding kidnapping of the accused was sent to different authorities vide courier receipts Ex. DW1/D1 to D6 and the telegraph receipts Ex. DW1/E1 to E2. On 20.02.2009, he was informed by the above Ashraf Ali that the accused had been arrested by the police and subsequently he had also come to know that his brother/accused was got implicated in this case by above Ashraf Ali and he was also persuaded by Ashraf Ali not to make any complaints to the police.
17. I have heard the arguments advanced by Sh. Inder Kumar, Ld. Addl. PP for the State and by Sh. Zuber Ahmed Khan, Ld defence counsel representing the accused. I have also appreciated the evidence led and the other case record.
18. The first argument of Ld defence counsel is that the mandatory provisions of Sections 41 and 42 of the NDPS Act have been violated in this case as no search SC No. 45A/09 State Vs Masoom Ali 12 warrant or authorization was obtained by the IO/PW5 in his favour from any Magistrate or the authorized Gazetted Officer in terms of the provisions of Section 41 of the NDPS Act and further that the above secret information was admittedly not reduced into writing by the IO/PW5 or communicated to his immediate official superior, as per the requirements of Section 42 of the NDPS Act. He has also pointed out certain depositions made by the IO/PW5 himself in his cross examination when he has admitted specifically that the above secret information was not reduced by him into writing and even some depositions of the SHO/PW2 when he has stated on record that he had not got reduced the said information in writing.
19. However, in this context, it is observed that since the information received in this case was only with regard to the effect that the accused was likely to arrive at the above said place to deliver the charas to someone and the information did not contain anything to the effect that he was to bring or transport the above contraband substance in any vehicle or that the contraband substance was kept or concealed in any house, building or closed place etc, neither the provisions of Section 41 nor of Section 42 of the NDPS Act were required to be complied with in this case as both these Sections come into operation only when the information received is of the description that it relates to the transportation or concealment etc of a contraband substance in any vehicle or such place. Hence, neither SC No. 45A/09 State Vs Masoom Ali 13 any search warrant or authorization in favour of the IO/PW5 in this case was required nor the above secret information was mandatorily required to be reduced into writing. Though, the prepositions of the judgement of the Hon'ble Supreme Court in case of Bahadur Singh Vs. State of M.P. (2002) 1 SCC 606 being relied upon by Ld defence counsel on this aspect cannot be disputed, but for the reasons discussed above, the above judgement is not of any help to the case of the accused.
20. One other contention of the Ld defence counsel connected with the above provisions is that the first IO/PW5 SI Rajeev Kumar (as he was at that time) or even the second IO/PW6 SI Chander Shekhar were not the empowered officers within the meaning of Section 42 of the NDPS Act, who were authorized to arrest the accused or to seize the above contraband substance and even the SHO/PW2 not being a Gazetted Officer was the empowered officer to authorize the above two IOs to arrest the accused or to effect the above seizure and hence, the seizure of the above contraband substance effected in this case is illegal and the accused is entitled to be acquitted on this ground alone. He has also submitted that though, both the above IOs have claimed themselves to be empowered officers in their statements made in this court, but they have not been able to tell any notification number of the Government vide which they were so empowered and even no such notification is a part of the judicial record.
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21. However, even these submissions of Ld are found to be without any merits as both the above IOs being officials of the rank of a Sub-Inspector were certainly the officers empowered to act in view of the provisions of Section 42 and of Section 43 of the NDPS Act, which is actually attracted in this case as the seizure of the above contraband substance was effected at a public place. Reference in this regard can be made to the notification no. F.(76)/85-Fin.(G) issued by the Administrator of the U.T. of Delhi vide which all the officials of the Delhi Police above the rank of a constable were authorized to act U/s 42 of the NDPS Act, as discussed in the judgment of Kamal Thakur Vs. The State (Delhi Admn.) 1995 JCC 76, of which the court can always take a judicial notice. Moreover, it is also not the case of the prosecution that any such authorization or permission to arrest from the SHO was taken by the above IOs and it was apparently for the reasons that the same was not required.
22. The next contention of Ld defence counsel is regarding the non compliance of the provisions of Section 57 of the NDPS Act as he states that no report or information regarding the arrest of the accused and seizure of the above charas from his possession sent by any of the two IOs, i.e. either by the first IO/PW5 or even by the second IO/PW6 SI Chander Shekhar, has been brought or proved on record during the trial of this case. He has also stated that PW6 was even not sure SC No. 45A/09 State Vs Masoom Ali 15 regarding the sending of the above information to the ACP concerned as during his cross examination, he has clearly stated that he does not remember if the above information was sent by him to the ACP concerned or not and even the SHO/PW2 has stated on record that he cannot tell the names of the officers who took the information to the Senior Officers and further that he was not even sure whether any such information was actually sent or not.
23. In this regard, it is observed that one application U/s 311 Cr.P.C. was also moved by the Ld Addl PP, In-charge of the case at the relevant time, in the midst of this trial with a request for summoning the concerned ACP for proving of the above information and during hearing on the said application, some enquiries were conducted by the second IO/PW6 SI Chander Shekhar regarding the dispatch or receipt of the above said information as he had stated on record that the same was not sent by him. After enquiry from the office of the ACP concerned, it was submitted by the above IO that no such information U/s 57 of the NDPS Act sent in this case was ever received in the office of the ACP concerned and hence, the request of the prosecution for summoning of the ACP concerned was dismissed. However, even though the above provisions of Section 57 of the NDPS Act have not been complied with in this case, the case of the prosecution cannot be thrown out simply for the reasons as it is now well settled that the SC No. 45A/09 State Vs Masoom Ali 16 compliance of the provisions of Section 57 of the NDPS Act, which requires the sending of a report regarding such arrest and seizure to the immediate official superior of the person making such arrest or seizure within 48 hours, are not mandatory in nature and the same is only directory in nature and the non compliance thereof does not make the seizure of the drugs itself.
24. It is also argued by Ld defence counsel that the alleged visit of the members of the above police team at the spot and the apprehension of the accused from the said spot with the above quantity of charas is made doubtful by the reason that a private car no. DL3C BC 1739 allegedly owned by the IO/PW5 was used in the above raid and no official vehicle was used in the said raid. It is also submitted that neither PW1 nor PW4 has been able to tell the complete registration number of the above car in which they had allegedly visited the spot.
25. In this regard, it is observed that the registration number of the above car and its make etc, i.e, a Maruti Alto car no. DL3C BC 1739, are duly recorded in the true copy of the above DD no. 30A Mark A1 on record, which is duly attested by the IO/PW5 and was also referred during the cross examination of the witnesses and the arguments by Ld defence counsel himself, and even this fact is found to be recorded therein that the above was a private car of the IO/PW5.
SC No. 45A/09 State Vs Masoom Ali 17 The IO/PW5 has also deposed the above fact specifically and the above details of the car are even found incorporated in the rukka Ex. PW1/C and the FIR Ex. PW3/B. Hence, simply because PW1 and PW4 have not been able to tell or remember the complete registration number of the above car, the above visit of the police team to the spot can not be doubted on this ground. Moreover, the Ld defence counsel has not sought any explanation or clarifications from the IO/PW5 on the above aspect and if he had any doubts regarding the veracity of the above claim of the IO/PW5, he could have called for the documentary proof regarding the ownership of the said vehicle of the IO/PW5. Again, no clarifications have also been sought from the IO/PW5 during his cross examination as to the reasons behind the use of his above private vehicle in the raid.
26. One other contention of Ld defence counsel is that the prosecution has failed to prove on record that the samples and the case property in this case had remained safe and intact throughout or that the same were not tampered with by anybody at any stage of the case. It is also submitted by him that the sealed parcels of the case property and samples when produced in this court for the first time during the examination of PW1 were not found to be bearing either the signatures of the accused or of the witnesses in whose presence the said parcels were prepared and the above parcels produced in this court can not be even linked SC No. 45A/09 State Vs Masoom Ali 18 with the accused. It is also submitted that the evidence led on record is not convincing enough to show that the FSL form was also taken and deposited with the samples in the FSL, Rohini and thus, the chain of the prosecution evidence is not complete and an important link thereof is missing, which can not rule out the possibility of tampering with the said parcels.
27. In this regard, it is observed though, the signatures of the accused and of the witnesses were not found to be there when the above parcels were reproduced during the cross examination of PW1, on the request of Ld defence counsel, and even the place of seizure was not found mentioned thereon, but the same alone can not give rise to any such inference of tampering with the same or the possibility thereof as when the above samples were produced during the chief examination of the above witness for the first time, the parcels of remnants of both the samples tested by FSL, Rohini were found to be in intact condition and though, the seal of one other parcel containing five packets of the remnant samples tested in the CRCL was found to be damaged, but this parcel was the parcel received back from the CRCL after the retesting of the samples and no damaged to the seals or tampering with the parcel of the remaining case property is reflected from the record when fresh samples for retesting were drawn in this court on 06.10.2009 from the remaining case property for determination of the purity of the substance, on the request application SC No. 45A/09 State Vs Masoom Ali 19 of the accused himself. Even the parcel of the remaining case property when produced during the examination of PW1 was having the intact court seals.
28. Further, it has been consistently deposed by PW1, PW4 as well as the IO/PW5 himself that the above three parcels of the samples and of the remaining charas were sealed at the spot with his seals of RK and he had also filed up the FSL form and affixed the said seal thereon and then the above parcels and the FSL form were taken into possession vide seizure memo Ex. PW1/B, which stands duly proved on record as the same is prepared by the IO/PW5 himself and is also witnessed by the above two other police officials. It is also on record in their depositions that the above sealed parcels, FSL form and a copy of the seizure memo, alongwith a rukka, were taken to the PS by PW1 and there are also consistent and corroborate depositions on record from PW1 and the SHO/PW2 that the same were handed over by PW1 to the SHO. The SHO/PW2 has also specifically deposed on record that he had affixed his seals of SPK on the above parcels and FSL form and had also noted the FIR no. of the case thereon, after making enquiries from the the DO of the PS, and had then deposited the same in the malkhana.
29. It is also on record that in the depositions of the MHC(M)/PW8 that he had deposited the above case property in the malkhana and had made an entry at serial SC No. 45A/09 State Vs Masoom Ali 20 no. 1770 in the register no. 19 of the malkhana in this regard and the SHO/PW2 has also stated specifically that he had even signed the above relevant entry of deposit of the case property. The above entry Ex. PW8/A is also found to be bearing the signatures of the SHO/PW2. The MHC(M)/PW8 has also deposed that the two sample parcels were sent to FSL, Rohini for testing on 17.03.2009, on the directions of the IO, through Ct. Maruti Munde/PW7, alongwith the FSL form and vide RC No. 81/21/09, which has been proved on record as Ex. PW8/B. There are also depositions made by PW7 on record that the above sealed samples were deposited by him in the malkhana on the same day and he had handed over back the acknowledgement issued by the FSL to the MHC(M) and the above acknowledgement is Ex. PW8/C on record and the MHC(M)/PW8 has also made an endorsement against the above entry Ex. PW8/A regarding the deposit of the above samples.
30. The above road certificate Ex. PW8/B and the acknowledgement Ex. PW8/C are both found to be bearing the signatures of PW7/Ct. Maruti Munde. Even as per the report Ex. PW6/C of the FSL, Rohini, which is per-se admissible in evidence U/s 293 Cr.P.C. and is also proved by the depositions of PW9/Sh. Amit Rawat of FSL, the above two sample parcels were found to be in intact condition when the same were taken up for analysis and the seals also tallied with the specimen seals as per the forwarding letter (FSL form). As stated above, all SC No. 45A/09 State Vs Masoom Ali 21 the above samples were found to be in intact condition when they were produced in this court for the drawing of fresh samples for the purposes of retesting. Hence, simply because the deposit of the FSL form is not specifically mentioned in the entry Ex. PW8/A or that the signatures of PW7 were not obtained in register no. 19 or that the MHC(M) has not made separate endorsements against the above entry regarding the dispatch of the samples in the morning time and the receipt of the FSL in the evening etc, as has been argued by Ld , no such inference of tampering with the above parcels can be drawn nor there appears to be any possibility thereof. Reference on this aspect can be made to the judgment in case Siddiqua Vs NCB :2007 (1) JCC (Narcotics) 22. It can not be ignored that the evidence led on record rather negates any such tampering or the possibility thereof and moreover, PW7 as well as PW8/MHC(M) have both specifically stated on record also that the above parcels were not tampered with and had remained intact while the same were in their custody.
31. The next argument of the Ld defence counsel is the non joining of any public witness by the above police officials to strengthen their case with regard to the recovery of the above contraband substance from the accused and it is his argument that due to the non joining of the same, the accused deserves to be acquitted as the police version of the incident is not acceptable for want of any independent corroboration.
SC No. 45A/09 State Vs Masoom Ali 22 However, this argument of Ld defence counsel also cannot be made the basis of acquittal of the accused because it is a fact of common knowledge that the public witnesses are always scared to become a witness in a criminal case and it is very hard to find public witnesses these days. Reference in this regard can be made to a judgment of our own High Court in case Union of India Vs Victor Namdi Okpo 2010 (4) JCC (Narcotics) 188 wherein their Lordships had held that the non joining of public witnesses by the prosecution is not fatal. Reference on this aspect can also be made to another judgment of the Hon'ble Supreme Court in case Ajmer Singh Vs State of Haryana 2010(2) SCR 785 : (2010) 3 Supreme Court Cases
746. Hence, the depositions of the police witnesses only cannot be thrown away and disbelieved for merely the non joining of the public witnesses.
32. One other argument of Ld defence counsel is that the mandatory provisions of Section 50 of the NDPS Act have not been complied with in this case, but it appears that this argument has been raised by Ld defence counsel just for the sake of arguments as it has been deposed specifically by all the above three police witnesses that prior to the conduction of the search of the accused and his above bag, the accused was told about his rights to be searched in the presence of a Gazetted Officer or a Magistrate and even one written notice U/s 50 of the NDPS Act Ex. PW1/A was given to the accused in this regard and vide his reply Ex. PW4/A SC No. 45A/09 State Vs Masoom Ali 23 given on the notice itself, the accused had refused to exercise his above rights. The above documents stand duly proved on record during the depositions made by the above witnesses and there is nothing wrong if the above reply or refusal of the accused was recorded by the IO/PW5 itself at the request of the accused, as the accused was not able to write the above refusal as he was not literate enough. Moreover, even otherwise, Section 50 NDPS Act is not attracted in this case as it is now well settled that the above has got no applicability where the recovery of the contraband substance has been effected not from the person of an accused, but from a briefcase, suitcase, bag or thaila etc. being carried by the accused. Reference in this regard can be made to the cases of State of H.P. Vs Pawan Kumar 2005 (4) SCC 350, Madan Lal Vs State of H.P. 2003 Crl.L.J 3868, Ajmer Singh Vs State of Haryana-2010 (2) SCR 785 (Crl. Appeal No. 436/09) and Jarnail Singh Vs State of Punjab, AIR 2011 SC 964.
33. All the above three witnesses of recovery, i.e. PW1 Ct. Kausar Mehandi, PW4 HC Islamuddin and the IO Inspector Rajeev have made detailed depositions on record regarding the receipt of the above secret information, constitution of the raiding team, their visit to the above spot, the apprehension of the accused from the above spot with the above contraband substance and also the process of search, seizure and sampling etc and they have further proved on record various documents SC No. 45A/09 State Vs Masoom Ali 24 prepared in connection with the same, either by the first IO/PW5 or by second IO/PW6. Their depositions are found to be consistent and corroborative in nature and no material contradictions have been observed in their statements which can be seen as having the effect of making their above visit to the spot or the apprehension of the accused and the recovery of the above contraband substance from him to be doubtful. Though, Ld defence counsel has pointed out some contradictions in their statements on certain aspects, like the cloths which the accused was wearing at that time, the number of documents prepared at the spot, the sending of a copy of the above DD No. 30A to the senior officers etc, but all these contradictions are found to be of minor nature and cannot be considered to be material enough or going to the root of the prosecution case, so as to make it unworthy of acceptance. Though, Ld defence counsel has also pointed out certain confrontations in the statements of above witnesses, like the confrontations recorded in the testimony of PW1 to the effect that whether or not he had deposed in his previous statement about his returning back to the spot and handing over the rukka and a copy of FIR to the IO, confrontations in the statement of PW4 on aspects like, whether he had told to the IO in his statement that the accused admitted that the above packets were of charas; as to how PW1 Ct. Kausar Mehandi had gone to the PS; as to whether the first IO/PW5 had handed over the documents to the second IO/PW6 and the second IO/PW6 prepared the SC No. 45A/09 State Vs Masoom Ali 25 site plan and the articles recovered in the personal search of the accused etc and further the confrontations in the statement of the IO/PW5 also on some aspects, like whether the notice U/s 50 of the NDPS Act was also recovered in the personal search of the accused; whether he had handed over the documents to the second IO/PW6 and further whether the apprehension of the accused was specifically mentioned in the notice U/s 50 of the NDPS Act or not, but it is observed that none of the above confrontations cannot be considered to be material enough to disbelieve or discard the testimonies of the above witnesses or to shake their credit. It is so because the above contradictions and confrontations do not go to the root of the prosecution case and are always likely to occur in the statements of witnesses due to lapse of time or the fading human memory and rather these contradictions and confrontations show that the witnesses are not giving a parrot like version in the court and are deposing truth from their memory of the incident and the things perceived by them at that time.
34. Though, Ld defence counsel has also pointed out some other discrepancies in the evidence led on record, i.e. the relevant column of the FIR is not having the signatures of the complainant and a copy of the FIR was not sent to the illaqa Magistrate etc and one judgment in case Datar Singh Vs. State of Punjab AIR 1974 SC 1193 has also been relied upon on one of these aspects, but SC No. 45A/09 State Vs Masoom Ali 26 the facts and nature of this case can be distinguished and the above discrepancies or grounds cannot be made the grounds for acquittal of the accused as in view of the consistent, corroborative and convincing evidence led on record by the prosecution, the same can easily be ignored.
35. The defence of the accused on record is that at the relevant time he was running a factory of manufacturing bicycles, walkers etc. with his two younger brothers namely Imran Ali and Mumtaz. On the above date, i.e. 18.02.2009, he and his youngest brother Imran Ali had left the factory premises and he was dropped by his brother at the red light crossing of Seelampur, as he had to go to Gandhi Nagar Market to purchase some manufacturing parts for his factory. He has also claimed that from there, he was picked up by some persons in plain clothes and was taken to PS Hauz Khas and an amount of Rs. 3 lacs was demanded from his family members as a condition for his release and since the above amount could not be paid due to his poor financial condition, he was falsely implicated in this case and the above charas was not recovered from his possession and the same was planted upon him by the above persons, who were in fact the police officials. He has also claimed that he was implicated at the instance of his ex-partner Sh. Ashraf Ali, who was with the above officials at the time when he was picked up, and his wallet containing Rs. 21,000/- was also kept by SC No. 45A/09 State Vs Masoom Ali 27 the police officials. In order to substantiate his above defence, the accused has also examined on record his brother Sh. Imran Ali as DW1 and he has also deposed regarding dropping of the accused at the above red light on the above date and he has also tried to put up a story that his brother/accused was kidnapped by some persons, as conveyed to them by the above Sh. Ashraf Ali and certain calls were also received on the mobile phone of Sh. Ashraf Ali from the kidnappers, but they were not able to pay ransom amount, which is claimed by this witness to be Rs. 2 lacs. He has also brought on record the photocopies of some complaints made to different authorities as Mark DW1/A, DW1/B and DW1/C and their dispatch courier receipts as Ex. DW1/D1 to Ex. DW1/D6 and the registration receipts as Ex. DW1/E1 and Ex. DW1/E2.
36. However, as stated above, the above copies of the complaints brought on record are only photocopies and the originals thereof were never summoned or produced on record during the trial and hence, in the absence of the proof of the originals of the above complaints, the contents thereof cannot be considered by this court. Moreover, the above complaints Mark DW1/A and Ex. DW1/B are though stated to be dated 18.02.2009, which is the date of incident in this case, but there is no proof on record that the same were dispatched to the concerned authorities, to which the same are addressed, on that date as the original postal receipts and the SC No. 45A/09 State Vs Masoom Ali 28 courier receipts brought on record as Ex. DW1/E1 and Ex. DW1/E2 and Ex. DW1/D1 to Ex. DW1/D6 are all dated 19.02.2009 and not dated 18.02.2009. Hence, there is no documentary evidence on record to substantiate the depositions of DW1 or the case of the accused that the accused was picked up from the Seelampur red light during the day time on that date or that he was not apprehended by the police from the footpath near the gate of the Rose Garden in Hauz Khas or that the above charas was not found or recovered from his possession. Again, the above Sh. Ashraf Ali has not been produced as a defence witness by the accused nor any satisfactory reasons have been brought on record for his non- examination. No record of any calls for ransom amount made by the kidnappers from the mobile phone no. 9999330496 on the mobile no. 9953462646 of the above Sh. Ashraf Ali, was also got preserved, summoned or produced during the trial. There is also a contradiction in the amount of above ransom as according to the submissions made by the accused in his statement U/s 313 Cr.P.C. this amount was 3 lacs, whereas according to DW1 the ransom amount demanded from them was 2 lacs. Even the claim of the accused that he was falsely implicated in this case at the instance of above Sh. Ashraf Ali and Sh. Ashraf Ali was also with the above police officials when he was kidnapped is made doubtful by the reason that the above mobile number 9999330496 of Sh. Ashraf Ali is also mentioned, alongwith his name, in the arrest memo of the accused as the person and the number to/at SC No. 45A/09 State Vs Masoom Ali 29 whom/which the information regarding the arrest of the accused was conveyed by the IO/PW5. His name or number could not have been mentioned in the above memo had there been any inimical relations between the accused and Sh. Ashraf Ali. Hence, the defence of the accused regarding his being picked up from the red light of Seelampur or his false implication in this case has not been substantiated on record by any satisfactory evidence.
37. As also discussed above, one of the two samples drawn from the above charas recovered from the possession of the accused was tested vide test report Ex. PW6/C by Dr. Madhulika Sharma and said report is per-se admissible in the evidence U/s 293 Cr.P.C and in the above test report, the above sample was confirmed to be of charas. Though, in view of the provisions of Section 293 Cr.P.C. no formal proof of the above report from the concerned chemical examiner was required, but on the application of the accused, the concerned chemical examiner was directed to be summoned by this court and subsequently in compliance of above order, one Sh. Amit Rawat, another chemical expert in the field, was permitted to depose on behalf of concerned chemical expert Dr. Madhulika Sharma and he also identified signatures of the concerned chemical expert in the said report. Simply because PW9 Sh. Amit Rawat has stated that from the above report it is not clear to him as to which chromatographic test was performed in this case by SC No. 45A/09 State Vs Masoom Ali 30 the concerned chemical expert or that FSL form was not mentioned in the acknowledgement slip issued by the FSL, it cannot be inferred that the above test report is not based on any scientific testing of the above samples or that the FSL form was not deposited with the sample parcel as the report Ex. PW6/C clearly mentions that the seals affixed on the sample parcels were found tallying with the specimen seals in the forwarding letter (FSL form).
38. Though, it has also been argued by the Ld defence counsel that in the second test report of FSL dated 20.10.2009 Ex. PX, the percentage of THC content in the five samples drawn in this court has been given to be ranging from 1.7% to 7% only and going by the average purity percentage thereof, the weight of the above 5 kg of charas will only be around 200 grams, but in view of the judgment of the Hon'ble High Court of Delhi in the case Shrawan Chilappa Vs. Union of India & Anr. W.P. (Civil) No. 2377 of 2010, the above purity percentage of THC is not relevant and the entire weight of the charas is to be considered by this court. Under the NDPS Act, the quantity of 1 kg of charas is prescribed to be a commercial quantity and the quantity recovered from the possession of the accused is five times more than the above commercial quantity.
39. In view of the above discussion, it is held that the prosecution has successfully brought home its SC No. 45A/09 State Vs Masoom Ali 31 charge and the guilt of the accused for the offence punishable U/s 20 (b)(ii)(C) of the NDPS Act and hence, the accused is held guilty and convicted for the above said offence. Let he be now heard on the quantum of sentence.
40. The case property be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgment, if any, or the orders of the appellant court, as the case may be.
Announced in the open
court on 18.02.2014 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South District
Saket Court Complex
New Delhi
SC No. 45A/09 State Vs Masoom Ali