Delhi District Court
Fir No.127/2007 State vs . Sikander Iqbal Etc Page No. 1 Of 49 on 21 April, 2018
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE02 (EAST)/SPL. JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
S.C.No.1614/16
FIR No.127/2007
U/s 20 NDPS Act & 468/471/411 IPC
PS Shakapur
State
Versus
1. Sikander Iqbal
S/o Sh. Kesher Iqbal
r/o Mohalla Manihari
Sarai Nageena
PS Kasba Nageena District Bijnore
2. Dilawar Singh
s/o Sh. Jagdish Singh
R/o 1/5346 Balbir Nagar Extension
Gali no.14
Shahdara, Delhi
3. Aash Mohammad @ Afsar (SINCE P.O.)
S/o Sh.Jamalluddin
H.No. 223 Block E4
Nand Nagri, Delhi
......Accused
Date of Institution: 12.04.2007
Reserved for Judgment on: 12.04.2018
Judgment pronounced on: 21.04.2018
FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 1 of 49
JUDGMENT
1. Prosecution case in brief is that on 13.02.2007, SI Arun Kumar alongwith Ct. Mahesh Kumar, Ct. Satyaveer and Ct. Amarpal alongwith Driver Ct. Gajender left the PS in TATA 407 bearing no. DL 1LC 9028 for patrolling and checking vehicles vide DD no.8 and at about 2.45 p.m, reached at Shiv Mandir, Yamuna Pushta, Akshardham Temple Road near School Block, Shakarpur where they put barricades and started checking the vehicles coming from Shakarpur chungi towards Noida. It is further the case of the prosecution that at about 3.45 p.m, one blue colour Maruti Car, bearing number plate HR 17 4746 was seen coming. There were two persons in the said car. The car was stopped for checking and documents of the car were demanded. The occupants could not produce any document and they started talking unsatisfactorily. 45 passersby were requested to join the proceedings but they left away without disclosing their names and addresses after telling their inability. On enquiry, the name of the person sitting on driver seat came to be known as Sikander Iqbal s/o Kesar Iqbal r/o Mohalla Manihari, Sarai Nageena PS Khas, District Bijnore (UP) and the name of the person sitting on the adjacent seat of driver came to be known as Afsar s/o Jamiluddin r/o Tanga Stand, Mandir Wali Gali, Nand Nagri, Delhi. On checking the said car, number of engine was revealed as 1036200 and chesis number revealed as 683551 and original registration number was revealed as DL 8C 7960 and it FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 2 of 49 came to know that the same has been stolen and involved in FIR no. 67/2000 u/s 379 IPC PS Sihani Gate, Ghaziabad UP . It is further the case of the prosecution that accused Sikander Iqbal was wearing a black colour rexine jacket on which HONDA was written and its left pocket was somewhat bulge which he was trying to hide. On suspicion, jacket of Sikander Iqbal was searched and sky blue coloured poythene was recovered from inner pocket which on checking was found one white coloured polythene containing two black coloured bricks which were smelling like charas. Ct. Satyavir alongwith Ct. Gajender were sent to PS in the government vehicle to bring the field testing kit and electronic scale. SI Arun Kumar again requested 23 passersby to join the proceedings after telling them about the recovery but they left away without telling their names and addresses and expressing their inability. At about 4.55 p.m, Ct. Satyavir and Ct. Gajender came at the spot and handed over the field testing kit and electronic scale to SI Arun Kumar. The recovered bricks were tested and the same were found to be charas. Both the bricks were weighed and total weight was found to be 500 grams. Two samples of 50 grams each were drawn from the recovered charas and the same were kept in a transparent polythene and then converted into cloth pullanda which were given Mark S1 and S2. Remaining charas was also kept in the same light coloured sky blue colour polythene, tied with thread and converted into pullandas which was given Mark 'A'. Form FSL was filled up at the spot.
FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 3 of 49 Jacket of accused Sikander Iqbal was taken out and it was also converted into pullanda with the help of cloth. All the four pullandas were sealed with the seal of 'AK' and seal after use was handed over to Ct. Satyavir. All the pullandas were seized. Rukka was prepared and it was handed over to Ct. Amarpal alongwith sealed pullandas, carbon copy of seizure memo and FSL form with the direction to hand over the rukka to duty officer for registration of the FIR and case property to SHO. The FIR was registered. After registration of FIR, further investigation was entrusted to ASI Narender Singh who reached at the spot where custody of accused alongwith documents were handed over to him. He prepared the site plan at the instance of SI Arun Kumar. Both the accused were arrested. They were interrogated and their disclosure statements were recorded. In disclosure statement, accused Sikander Iqbal disclosed the name of accused Dilawar who handed over the charas to him. Accused Dilawar was searched but he could not be traced. NBWs were obtained against accused Dilawar. Case property was sent to FSL, Rohini. Pending receipt of FSL result, chargesheet was prepared against accused Sikander Iqbal and Aash Mohammad @ Afsar and filed in the Court. However, during trial, accused Aash Mohammad @ Afsar did not appear and after issuance of NBWs and completion of proceedings u/s 82/83 Cr.P.C, accused Aash Mohammad @ Afsar was declared Proclaimed Offender vide order dated 18.03.2009.
2. It is further the case of the prosecution that process u/s FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 4 of 49 82/83 Cr.P.C was initiated against accused Dilawar. He filed an application for bail which was dismissed and the accused surrendered before the Court. He was formally arrested and his PC remand was obtained. Accused Dilwar got recovered one WagonR Car and one motorcycle. The information regarding said recovery was sent to PS Indrapuram. The said car and motorcycle have been transferred to PS Kasna and Indrapuram and cases u/s 411 IPC have been registered. It is mentioned in the Chargesheet that accused Sikandar had pointed out the house of accused Dilawar and he has tried to evade his arrest which proves that he had handed over 500 grams charas for the purpose of sale to Sikandar Iqbal. After completion of the investigation, supplementary charge sheet was filed against accused Dilawar Singh. FSL result confirms that the recovered substance was charas.
3. Cognizance of the offence was taken and Charge u/s 20 NDPS Act was framed against accused Sikander Iqbal. Charge u/s 29 NPDS Act was also framed against accused Dilawar Singh and Sikander Iqbal. Separate Charge was framed against accused Sikander Iqbal and Dilwar Singh u/s 468/471 IPC and Charge u/s 411 IPC has also been framed against accused Dilawar. Accused persons pleaded not guilty to the said charges.
4. In order to prove its case, prosecution examined 11 witnesses. PW1 is HC Md. Sajid. He is the duty officer. He recorded FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 5 of 49 FIR no.127/07, photocopy of which is Ex.PW1/A.
5. PW2 HC Asgar Ali is the then MHCM. He produced register no.19 showing entries regarding deposit of five parcels deposited by Insp.S.P.Tyagi in the malkhana. He also stated that the he had handed over two sealed parcels to ASI Shamsuddin alongwith FSL form vide RC no.22/21 Ex.PW2/E for depositing in FSL, Rohini and copy of acknowledgement is Ex.PW2/F. He further deposed that FSL result was received. The said entries are Ex.PW2/A. He further deposed about deposit of car with fake number plate HR 17 4746 and personal search articles, copy of entry is Ex.PW2/B. He further deposed about depositing of car bearing engine no.4338590 and chesis no.514798 vide entry Ex.PW2/C and about Bajaj motorcycle no.DL 3SAW 4028 vide entry Ex.PW2/D.
6. PW3 is Ct.Mukesh Kumar, PW5 is IO/Insp. Arun Kumar, PW6 is HC Satyavir Singh. They are the witnesses of recovery of Charas from accused. Their testimonies are more or less the same as stated in para '1' of the Judgment and are therefore, not being repeated for the sake of brevity.
7. PW4 is ASI Shamshuddin. He took two parcels from Malkhana, duly sealed with the seal of AK and STP and deposited the same at FSL, Rohini vide RC No.22/21.
FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 6 of 49
8. PW7 is HC Gajender, Driver. He took SI Arun Kumar, Ct. Mahesh, Ct. Satbir and Ct. Amarpal in government vehicle Tata 407 to the spot. He deposed about checking of vehicles by the police party and also that a blue colour maruti car no. HR 17 4746 was found coming which was occupied by two persons who were asked to produce the documents but they could not produce. He further deposed that on checking the chesis number and engine number, it was found stolen. He deposed that accused Sikander Iqbal was found on the driver seat and other person sitting in the car was Afsar. He deposed that he and Ct. Satbir were directed to bring the field testing kit and electronic scale which they brought. He identified the case property.
9. PW8 is ACP S.P.Tyagi. He is the then SHO PS Shakarpur. He deposed that Ct. Amarpal produced carbon copy of seizure memo, FSL form and four parcels duly sealed with the seal of AK on which he put his seal of SPT. Seal was also affixed on FSL form. He filled FIR no.127 on the documents and he deposited all the parcels, FSL form and seizure memo in Malkhana and made DD no.24A Ex.PW8/A.
10. PW9 is SI Narender Singh. Further investigation was entrusted to him. He deposed that he reached at the spot where SI Arun Kumar and his staff met him. He prepared the site plan FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 7 of 49 Ex.PW9/A on the pointing out of SI Arun. He arrested accused Sikander vide memo Ex.PW3/B and accused Aash Mohammad vide memo Ex.PW3/C and conducted their personal search vide memo Ex.PW3/D and Ex.PW3/E. He also recorded their disclosure statements Ex.PW3/F and Ex.PW3/G. He produced the accused before Insp. Narender Chauhan. He further deposed that on 14.02.2007, both the accused were produced before the Court and police remand was obtained. He further deposed that accused Sikandar pointed out the house of Dilawar Singh in a Gali at Durgapuri but Dilawar was not traceable. He further deposed that on 30.07.2007, accused Dilawar had surrendered before the Court. He recorded his disclosure statement Ex.PW9/B. Dilawar was arrested vide arrest memo Ex.PW9/C. He deposed that accused Dilawar got recovered wagonR car no. DL 7C 3700 from Quarter No.T2, Railway Station Quarters, Haridwar which was seized vide seizure memo Ex.PW9/E. He further deposed that accused Dilawar got recovered motorcycle no. DL 3SAW 4028 on 01.07.2007 from near the wall of LBS Hospital which was seized vide memo Ex.PW9/D. He sent the pullandas to FSL. The FSL result is Ex.PW9/F.
11. PW10 is HC Udaiveer Singh. He has deposed that on 30.06.2008, he was called by ASI Narender at Karkardooma Courts where custody of accused Dilawar was handed over to him. He was arrested vide memo Ex.PW9/B and his personal search was FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 8 of 49 conducted vide memo Ex.PW10/A. His disclosure statement is Ex.PW10/B. He further deposed that he alongwith Ct. Naresh and ASI Narender took the accused to Haridwar in a private vehicle where accused Dilawar got recovered a WagonR car without number plate which was lying parked in an open space and the same was seized vide seizure memo Ex.PW9/E. He deposed that on verification, it was found that the same was stolen from the area of PS Kasna UP and its correct number was UP 16P 7260. He also joined the investigation on 01.07.2007. He deposed that accused Dilawar got recovered a motorcycle no.DL 3SAW 4028 from LBS Hospital parking and it was seized vide seizure memo Ex.PW9/D.
12. PW11 is Brijesh Kumar. He is the owner of car no. UP16P 7260 which was stolen on 30.04.2007 regarding which FIR no.201/07 was registered u/s 379 IPC. He moved an application Ex.PW11/A for release of car on superdari which was allowed vide order dated 10.07.2007 Ex.PW11/B. He deposed that he had disposed off the said vehicle, copy of RC, PUC and delivery receipt are Mark A, photograph of car is Mark B.
13. Statements of accused u/s 313 Cr.P.C were recorded wherein accused Sikandar has stated that he is innocent. He has not committed any offence. He was lifted by the police on 10/11.02.2007 from Ashok Nagar from the house of his inlaws and FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 9 of 49 falsely implicated in this case. His signatures were obtained by the police on some blank papers forcibly. The recovery shown to have been effected has been planted by the police upon him.
14. Accused Dilawar has stated that coaccused Sikander did not give any disclosure statement regarding supply of the charas. He surrendered before the Ld. Court. Ld. ASJ summoned him and directed the IO for his apprehension. He did not make any disclosure statement, IO obtained his signatures on blank papers and converted the same into the disclosure statement. IO took him to Hardiwar and kept him in the garden of one Insp. Chauhan for two days and no WagonR and motorcycle were ever recovered at his pointing out and IO Narender and Arun Kumar were posted in anti auto theft department at that time and they planted the WagonR and Motorcycle upon him which were already in their possession. He is innocent. He has not committed any offence. He has been falsely implicated because IO/SI Arun is residing in his mohalla and he is inimical towards him for last many years and besides the present case, he has got him falsely implicated in several other case through other police officials.
15. Arguments have been heard from Ld. Addl.PP on behalf of the State as also from the Ld.LAC for accused Sikander and Ld. Counsel for accused Dilawar. Ld. Addl.PP has argued that FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 10 of 49 the accused Sikander was apprehended while he alongwith his co accused Aash Mohammad (since PO) were going in a stolen car and 500 grams charas was recovered from his possession. It is submitted that recovery witnesses have supported the prosecution case and withstood the test of cross examination and there is no infirmity in their testimonies. FSL result confirms that recovered substance was Charas. Ld. Addl. PP further argued that coaccused Dilawar was apprehended on the disclosure statement of accused Sikandar and that his name has been disclosed by accused Sikandar as a person who supplied the contraband to him. Stolen car as well as motorcycles were got recovered by accused Dilawar. It is submitted that all the necessary compliances have been made and prosecution has been able to prove its case against the accused persons beyond doubt.
16. Ld.LAC for accused Sikander has argued that there are material contradictions in the testimonies of recovery witnesses as SHO has deposed that four parcels were handed over to him while PW2 stated that five parcels were deposited. There are different versions regarding uniform. Most of the witnesses stated that they remained at the spot for considerable time while PW7 stated that they remained only for 45 minutes. Some of the witnesses stated that the weighing scale was electronic while Ct. Mahesh stated that it was an iron like object. It is further stated that three bundles were FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 11 of 49 prepared however, as per one witness, contraband was weighed four times. There are also contradictions regarding departure and reaching at the spot. Ct. Amarpal who allegedly took rukka to PS has not been examined. No public persons has been joined at the time of recovery. Ld. LAC argued that when the case property was produced before the Court for the first time, the packets were found open and hence, the alleged recovery effected from accused is not believable. He also argued that Section 42/50 NDPS Act have not been complied by the prosecution which are mandatory in nature. Ld.LAC submitted that there is delay of about 15 days in sending the samples to FSL while the same should have been sent within 72 hours. Ld. LAC submits that as per CRCL result the alleged quantity recovered from the accused comes under small quantity. It is argued that the recovery shown from the accused is a planted one and that accused has committed no offence.
17. Ld. Counsel submits that the accused Dilawar is facing trial u/s 411 IPC before a Court in District Gautam Budh Nagar UP for the recovery of car and thus, section 411 IPC is not made out in this case. He submits that the recovery of car as also the motorcycle is doubtful. He further submits that said car has not been produced before this Court. The accused is shown to have been arrested on the disclosure statement of coaccused and that no recovery of any contraband has been effected from his possession. There are FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 12 of 49 contradictions in the testimonies of investigation witnesses regarding the location of the house of accused as well as the length of the construction of house. Ld. Counsel argued that there is no evidence on record by which it can be inferred that the accused had abetted or hatched criminal conspiracy with coaccused for the supply of charas.
18. Dealing with the first contention of the Ld. LAC for accused Sikander regarding contradictions in the statements of witnesses, In case law State of Rajasthan Vs. Kalki, AIR 1981 SC 1390 their Lordships have observed that 'in the deposition of witnesses there are always normal discrepancies, however honest and truthful they may be. It was further observed that these discrepancies are due to normal errors of observations, normal errors of memory, due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence and the like. It was also observed that material discrepancies are those which are not normal and are not expected of a normal person'. Ld. LAC for accused Sikander has argued that SHO has deposed that four parcels were handed over to him while PW2 stated that five parcels were deposited; there are different versions regarding uniform; Most of the witnesses stated that they remained at the spot for considerable time while PW7 stated that they remained only for 45 minutes; Some of the witnesses stated that the weighing scale was electronic FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 13 of 49 while Ct. Mahesh stated that it was an iron like object; three bundles were prepared however, as per one witness, contraband was weighted four times and that there are also contradictions regarding the timing of departure and reaching at the spot. No doubt, there are certain contradictions in the testimonies of the witnesses as pointed out above. However, the testimonies of the witnesses cannot be disbelieved merely on account of minor contradictions which do not go to the core of the prosecution case. Only those contradictions which dent or shake the trustworthiness of the witnesses are material. Rest of the contradictions are of no significance. In my view, the contradictions pointed out above are not material and are therefore, not sufficient to disbelieve the testimonies of the witnesses.
19. As far as the submissions that Ct. Amarpal who allegedly took rukka to PS has not been examined is concerned, perusal of summons issued to Ct. Amarpal revealed that he has expired on 15.04.2007.
20. Another contention of the Ld. Counsel is that no public witness was associated by the police at the time of arrest of accused and seizure of charas. The present case solely based on the testimony of official witnesses. The court has to presume that official acts are performed in due course of law. It will not be FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 14 of 49 correct approach to suspect the integrity of police officials. Their testimonies has to be appreciated like any other witness. However, it is rule of caution that Court should scrutinize the testimony of police officials with utmost care and caution to assure itself of its credibility. In case Law Munshi & Ors Vs. State 20(1981) DLT(SN) 26 it has been observed that public generally hesitate to associate with police therefore, the police has to take help of person known to them or the complainant. In case Natho Singh Vs. State, AIR 1973 SC 2763 it has been held that evidence of police officials cannot be discredited in the absence of the hostility to the accused. In case State Vs. M.M.Methew, AIR 1978 SC (1571) it was held that evidence of police officials cannot be branded as highly interested only on the ground that they are interested in the success of their case. In Appa Bhai Vs. State of Gujarat AIR 1988 SC 696 it has been held that civilized people are generally insensitive when a crime is committed in their presence. They keep themselves away from the court unless it is inevitable and they try to avoid to involve themselves. In Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Hon'ble Supreme Court held that it is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witness is not absolute. If the police officer is unable to join any public witness after genuine efforts, the recovery made by the police officer would not be vitiated. The Hon'ble Supreme Court held that in such circumstances, the Court FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 15 of 49 will have to appreciate the relevant evidence to determine whether the evidence of a police officer is believable so as to place implicit reliance thereon. In the present case, the raid was conducted and accused was apprehended in between 3.45 p.m to 4 p.m. PW3 Insp.Arun Kumar, the then SI has deposed that after putting barricade, he started checking the vehicles and at about 3.45 p.m, one maruti 800 having blue colour bearing no. HR 17 4746 was seen coming which was stopped and the occupants were asked to show the documents but they did not show any document. He checked the engine and chesis number and on enquiry from R&D, the real number of the car was found to be DL 8C 7960 and it was stolen from PS Singhani Gate, Ghaziabad vide FIR no.67/2000. He requested 34 passersby to join the proceedings but none agreed. The jacket of accused Sikandar was somewhat bulge and he got suspicious and on checking the jacket there were two bricks of charas. He requested 34 passersby to join the proceedings but none agreed. In cross examination, he has stated that during the checking of vehicles, no public person was asked to join. PW3 has clearly stated that he has requested the public persons but they refused. PW3 Ct. Mahesh has also stated that 45 public persons were requested to witness the proceedings but none of them agreed and all went away showing their personal difficulties and without disclosing their names and addresses. He also stated about after recovery from accused 34 passersby were requested to join the proceedings but FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 16 of 49 none agreed. In cross examination, he has stated that IO had not given any notice to the public persons, who refused to join the raiding party. Similar is the deposition of PW6 in this respect. It is to be borne in mind that the present case is a case of chance recovery. The recovery of charas was effected from accused Sikandar during search of vehicles. PW3 as also witnesses who were with PW3 have corroborated the statements of each other regarding the efforts made by PW3 to join the public witnesses. PW3 has clearly tendered the explanation regarding non joining of public witnesses as they left away without telling their names and addresses. The FIR indicates that it was recorded at about 6.30 p.m. The arrest memo of accused indicate that he was arrested at about 8.05 p.m. The accused was available at Yamuna Pushta, Akshardhan road, Near Shiv Mandir in between 4.00 p.m to 8.05 p.m. In the instant case, there is no cogent and valid reasons to discard/suspect the testimony of the police officials who had neither prior acquaintance with the accused nor animosty with him. Accused had no acquaintance with any of the members of the raiding team. The accused did not give reasonable and plausible explanation about his presence on that day at the spot. Accused is permanent resident of Bijnor, UP. In his statement u/s 313 Cr.P.C, accused has stated that he was lifted by the police on 10/11.02.2007 from Ashok Nagar, Delhi from the house of his inlaws and falsely implicated. However, accused has failed to lead any defence to show that he had FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 17 of 49 come to Delhi to the house of his inlaws on that day. Keeping in view the general reluctance on the part of the public persons to join the police investigation, it cannot be said that there was any avoidance or evasion on the part of first IO in joining independent witnesses. It is clear that sufficient efforts were made by the IO to join the public witnesses. No ulterior motive has been assigned to the police officials for falsely implicating the accused. I am, therefore, of the view that nonjoining of the independent public witnesses in the factual matrix of the case is not a circumstance to raise suspicion about the motives of the police officials.
21. Ld. LAC contended that when the case property was produced before the Court for the first time, the packets were found opened and hence, the alleged recovery effected from accused is not believable. The pullandas were produced in the Court and exhibited. This court has found that the case property was produced before the Court during examination of PW3 for the first time on 25.01.2010 after deposit in malkhana. It has been recorded in the statement of PW3 that : 'At this stage, the MHC(M) produced one sealed cloth parcel Mark A bearing particulars of the case and signature of SHO Shakarpur and SI Arun Kumar and duly sealed with the seal of Court is opened and from inside it one light sky blue polythene carry bag is taken out and a transparent polythene pouch containing two blackish colour bricks are taken out and shown to witness who identifies the same as being one recovered FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 18 of 49 from the possession of the accused. The same is collectively Ex.P1'.
22. The above fact recorded in the testimony of PW3 clearly show that the when the Pullanda Mark A i.e. leftover charas after drawing sample Mark S1 and S2 was produced before the Court, it was found to have been sealed with the seal of Court. This pullanda should have been sealed with the 'AK and SPT'. It is revealed from the record that vide order dated 02.05.2009, the case property was produced before the Court for taking fresh sample for sending the same to CRCL, Pusa Road for the analysis for determining the percentage of constituents thereof and in particular the percentage of THC. The same was produced on 13.05.2009 and after drawing sample from big pullanda i.e.left over charas, the same was sealed with the seal of Court. Thus, it is clear that the pullandas Mark A containing left over charas was sealed with the seal of Court and hence, produced at the time of examination of PW3 with the seal of Court. As far as the submissions with regarding opened envelope is concerned, I have perused the statement of PW3. The outer envelope was in open condition however, the evidence show that Mark S1 and Mark S2 were duly sealed with the seal of FSL MS DELHI. Further the said two samples Mark S1 and S2 were the samples sent to FSL and received back from FSL after examination. There is no evidence that Mark S1 and S2 were tampered with. Thus, the benefit of submissions of Ld.LAC cannot be given to the FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 19 of 49 accused.
23. Accused Sikandar was apprehended during checking of vehicles and recovery of 500 grams charas was allegedly effected from his possession. Ld. Counsel submits that no notice u/s 50 was given and even there is no compliance of Sec42 NDPS in this case. It is now well settled that compliance of Section 50 of NDPS Act is mandatory in nature and thus, there exists an obligation to comply with the provisions and noncompliance thereof would entail an order of acquittal in a proceeding under NDPS Act. Section 50 categorically lays down that if the search is to be conducted by an Officer duly authorized under Section 42 and the search is to be conducted under the provisions of Section 41, 42 & 43, the concerned officer does owe a duty to intimate the person to be searched that if the latter so requires, he would be taken to the nearest Gazetted Officer/Magistrate for the purpose of having the search in their presence. But in the event of a situation otherwise, as in the facts of the present case, viz., the car of the accused was stopped during checking of vehicles and when he could not give any satisfactory reply regarding documents of the car it was got verified and same was found involved in case FIR no. 67/2000 and when the accused was seen hiding something bulge in his jacket, on suspicion he was searched and charas was recovered and thereafter, accused was apprehended. Thus, question of compliance with the safeguards as described under Section 50 of the Act would not arise. In the case FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 20 of 49 of State of Punjab Vs. Balbir Singh MANU/SC/0436/1994, the Hon'ble Supreme Court in a similar vein answered the question in the following manner:
"........It thus emerges that when the police, while acting under the provisions of Cr. PC as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or searches they would be acting under the provisions of Cr. PC. At this stage if there is any noncompliance of the provisions of Section 100 or Section 165 Cr. PC that by itself cannot be a ground to reject the prosecution case outright. The effect of such noncompliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case. In carrying out such searches if they come across any substance covered by the NDPS Act, the question of complying with the provisions of the said Act including Section 50 at that stage would no arise. When the contraband seized during such arrests or searches attracts the provisions of NDPS Act then from that stage the remaining relevant provisions of NDPS Act would be attracted and the further steps have to be taken in accordance with the provisions of the said Act."
24. It is clear that there was no prior information to the police that accused was likely to come with narcotic substance, neither the police official had any reason to believe from their FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 21 of 49 personal knowledge or information that accused was likely to be in the area from where he was found with the contraband item. As a matter of fact, even at the time of effecting search, there was no knowing that an offence under Chapter IV of NDPS Act has been committed by the accused. Police officials merely suspected the commission of an offence by reason of the fact that something bulge was seen in his jacket. The evidence on the score is clear and categorical to the effect as discussed herein before. The contextual facts thus depict a situation not covered within the purview of Section 50 NDPS Act or u/s 42 NDPS Act. In this context, the observation of the Constitution Bench of Hon'ble Supreme Court in the case of State of Punjab Vs. Baldev Singh 1999 (6) SCC 172 also lends credence to the above statement of law. In Para 12 of the judgment, the court stated as below:
"12. On its plain reading, Section 50 would come into play only in the case of search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."
25. Applying the aforesaid principles laid down by Hon'ble FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 22 of 49 Supreme Court, I am of the view that in this case recovery having been effected from the jacket of accused during chance apprehension, Section 50 NDPS Act would not apply and therefore, argument of the defence that there is no proper compliance of Section 50/42 NDPS Act pales into insignificance.
26. Ld.LAC argued that there is delay in sending the samples to FSL. In the present recovery of Charas was allegedly effected on 13.02.2007. PW4 ASI Shamshuddin deposited the samples to FSL on 28.02.2007 i.e. after about 15 days. The Hon'ble Delhi High Court in the case of Matlub Vs. State 67 (1997) DLT 372, held that sample needs to be sent to FSL without delay and if samples were dispatched with delay and no explanation is given, tampering with the seal can be inferred. However, in the case of Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Hon'ble Supreme Court upheld the order of Delhi High Court on the issue of ignoring the delay being of 15 days and holding that the statements of witnesses and the report of FSL show sample was received in a sealed cover and there was no tampering of the sample. In the cases of Ramesh Kumar Rajput @ Khan Vs. State of NCT of Delhi MANU/DE/0786/08 and Bilal Ahmad Vs. State 2011 III AD (Crl.) (DHC) 293, the delay of 13 days and 59 days respectively was ignored.
FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 23 of 49
27. From the cited judgments, the ratio which can be drawn is that to safeguard the possible tampering, the sample should be sent to FSL at the earliest, preferably in 72 hours, however, if there is delay, there is onus on the prosecution to show that there was no tampering with the case property and the sample. If the prosecution satisfies that there was no tampering, the delay is to be ignored, however, in the event of doubt, benefit has to be given to the accused.
28. Coming to the facts of the case, PW5 Insp. Arun Kumar deposed that he took two samples of 50 grams each from the recovered charas. He prepared two pullandas which were marked S1 and S2 and remaining charas was given Mark A. He further deposed that all the the parcels were sealed with the seal of AK. In cross examination, he has stated that four pullandas (one of jacket) were prepared which were sealed with the seal of AK and seal after use was handed over to Ct. Satbir. No handing over memo was prepared. PW6 HC Satyavir has deposed that he returned the seal of IO on the next day. Thus, it is clear that the seal was handed over to PW5 SI Arun after the case property was deposited in the malkhana with the seal of PW8 ACP SP Tyagi, the then SHO. PW8 has also deposed that seal of AK was there on all the pullandas when he put his seal of SPT. PW8 was not cross examined on the aspect of seal at all. PW5 deposed that he handed over the sealed pullandas to Ct. Amarpal (since expired). PW8 ACP S.P.Tyagi deposed that Ct.
FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 24 of 49 Amarpal produced the parcels, FSL form and carbon copy of seizure memo before him. No specific suggestion was put to PW3 and PW6 that IO had not put his seal of AK. Also no suggestion has been put to PW5 that he did not put his seal of AK on the parcels. PW8 deposed that he put his seal of SPT on the parcels and FSL form and after enquiry, put the FIR number 127 and all the exhibits alongwith seizure memo were deposited in malkhana. PW2 HC Asgar Ali has deposited the case property in malkhana vide entry at sr.no.3231 made in register no.19. PW8 made entry vide DD no.24A. PW2 HC Asgar Ali, the then MHCM corroborates PW8 by stating that PW8 had produced pullandas with the seal of AK and STP in sealed condition with the seal of AK and STP and one FSL form and carbon copy of seizure memo. He proved relevant entry no.3231 made in register no.19. PW4 ASI Shamshuddin deposed that on 28.02.2007, he took two sample pullandas from MHCM with FSL form vide RC no. 22/21 and deposited in FSL. RC No. 22/21 with detail is proved as Ex.PW2/E by PW2 HC Asgar Ali without any challenge. Acknowledgement card has been tendered in evidence as Ex.PW2/F. There is mention of sealed pullanda and FSL form in the and RC. As per FSL result Ex.PW7/F, the sample parcel 'S1' & 'S2' were bearing the seals of AK and STP and the same was received on 28.02.2017 and the seal was intact and tallied as per forwarding authorities specimen seal. Thus, the link from the spot till arrival at FSL has been proved by the prosecution by producing aforesaid FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 25 of 49 witnesses. Nothing material has been brought out in cross examination on the aspect of possible tampering. The delay if any, therefore, cannot be read against the prosecution.
29. As far as the recovery is concerned, I have perused the case file. PW3 Ct.Mukesh Kumar, PW5 IO/Insp. Arun Kumar and PW6 HC Satyavir Singh are the witnesses of recovery of charas from the possession of accused Sikander. PW5 IO/Insp. Arun Kumar has deposed that he alongwith Ct. Amarpal, Ct. Satbir, Ct. Mahesh and driver/Ct. Gajender in government vehicle proceeded for patrolling and vehicle checking and left at about 2.30 p.m vide DD No.8. At about 2.45 p.m, he alongwith staff reached at Yamuna Pushta, Akshardham Road near School Block, Shiv Mandir where after putting barricades, he started checking the vehicles. PW3, PW6 and PW7 HC Gajender(driver) have corroborated the version of PW5 in this respect. All these witnesses have further corroborated the statement of each other by deposing that at about 3.45 p.m, one maruti 800 colour blue having number plate HR 17 4746 came from chungi side which was stopped in which there were two persons who were asked to produce the documents but did not show any documents and then PW5 checked the engine and chesis number and on enquiry from R&D real registration number revealed as DL 8C 7960 found to be stolen from PS Singhani Gate, Ghaziabad vide FIR No.67/2000. All the above witnesses have further corroborated that FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 26 of 49 the pocket of jacket worn by accused Sikander was somewhat bulge and PW5 got suspicious and checked the jacket and found sky blue colour polythene, on checking another white colour polythene was found in which there were two bricks which on smelling found to be charas. All the recovery witnesses have further deposed that the field testing kit and weighting machine were brought and on testing, it was found to be charas and on weighing, total weight was found to be 500 grams, out of which two samples of 50 grams each were drawn, pullandas were prepared and given Mark S1 and S2 and remaining charas was also converted into pullanda and it was given Mark A and the case property alongwith jacket were taken into possession vide seizure memo Ex.PW3/A, car was also seized vide seizure memo Ex.PW5/A. Recovery witnesses have also corroborated that PW5 prepared the rukka and sent the same alongwith case property, form FSL and carbon copy of seizure memo through Ct. Amarpal for registration of FIR and handing over the case property and documents to SHO.
30. Considering the testimonies of all the above stated witnesses, it is crystal clear that they have corroborated the testimony of each other regarding recovery of charas effected from the wearing jacket of accused Sikander. The said sealed pullandas were handed over by Ct. Amarpal to PW8 ACP S.P. Tyagi, the then to SHO. PW8 ACP S.P.Tyagi has received four parcels, FSL form FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 27 of 49 and carbon copy of seizure memo, put his seal of SPT, filled FIR number and deposed the same in Malkhana. He also recorded DD no.24A. PW2 HC Asgar Ali, who was working as MHCM has deposed that Insp.SP.Tyagi has deposited five parcels vide entry no.3231 Ex.PW2/A. Ld. Counsel has taken the plea that there is contradiction in the testimony of PW8 and PW2 regarding number of pullandas deposited in the malkhana as PW8 has stated that he was handed over four pullandas while PW2 has stated that five pullandas were deposited. Perusal of Ex.PW2/A reveals that four pullandas were deposited in the malkhana. Thus, the word 'five' in the testimony of PW2 cannot be given much weightage as the documents Ex.PW2/A shows that only four pullandas were deposited in the malkhana. Pleas raised by Ld.LAC has thus, no merit. Ex.PW2/A shows that it bears the signature of the then SHO. Thus, there is sufficient compliance of Section 55 NDPS Act. The recovery of charas has thus, been proved by the prosecution by producing corroborative evidence in this case.
31. Ld. LAC has argued that the alleged vehicle in which the accused had come was found to have been stolen vide FIR no.67/2000 u/s 379 IPC PS Sihani Gate, Gaziabad and that the accused has never been called in the said case and vehicles has also not been transferred to the said PS. Perusal of the record reveals that the IO of this case has not stated anything as to whether the vehicle FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 28 of 49 in question was transferred to the said PS where FIR no.67/2000 was registered or that the information was passed on to said PS in this respect or not. No suggestion has been put to PW5 SI Arun Kumar that he has not passed the information to concerned PS as the accused has been falsely implicated in this case. No question has been put either to PW5 SI Arun Kumar or to PW9 SI Narender on this aspect. It was the duty of IO to pass on the information to the concerned PS. However, it has no affect on the merits of this present case.
32. In the present case, accused Dilawar has been charged u/s 411 IPC. Ld. Counsel for accused Dilawar submitted that no case u/s 411 IPC is made out against the accused. In the present case, initially accused Sikander and Aash Mohd (since PO) were arrested. Both were allegedly going to deliver the charas to someone at Noida. In the disclosure statement of accused Sikandar, he named accused Dilawar and one Jahid from whom the recovered substance was obtained and which was to be handed over to Saleem and Sharif. In the disclosure statement of Aash Mohd. @ Afsar, who was with coaccused Sikander, name of accused Dilawar is not mentioned. The prosecution has examined PW9 SI Narender Singh and PW10 HC Udaiveer qua investigation in respect of accused Dilawar. PW9 SI Narender has stated that on 14.02.2007, he took four days remand of accused Sikandar Iqbal. Accused Sikandar Iqbal pointed out the house of Dilawar Singh in a gali at Durgapuri FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 29 of 49 but Dilawar was not traceable. As per the case of prosecution and even as per arrest memo, accused Dilawar is stated to be a resident of Balbir Nagar. There is considerable distance between both the places as PW9 himself stated that the distance between the house of accused Dilawar from Durgapuri Chowk is about one and a half kilometer and it is in the Western direction from Durgapuri Chowk. It seems that there is some manipulation in this respect. PW9 has further stated that he made search for Dilawar and Rahul but both of them were not traceable. He further stated that on 30.07.2007, again said on 30.06.2007, accused Dilawar surrendered before the Court. Accused has taken the plea that he was summoned by Ld. ASJ and on appearance he was directed to be apprehended by the IO. Though not exhibited, the said fact is clear from the application of IO which was moved for four days JC remand of accused. PW9 recorded his disclosure statement Ex.PW9/B. PW9 and PW10 have stated that accused was arrested vide arrest memo Ex.PW9/C. PW9 has further deposed that he obtained two days police remand of accused and at the instance of accused Dilawar, WagonR car no.DL7C 3700 was recovered from Quarter No.T2, Railway Station Quarters, Haridwar. PW10 HC Udaiveer also deposed regarding recovery of car vide seizure memo Ex.PW9/E. Both PW9 and PW10 have deposed that on 01.07.2007, accused got recovered motorcycle bearing no. DL 3SAW4028 which was seized vide memo Ex.PW9/D. It is an admitted case of the prosecution that FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 30 of 49 no recovery of charas has been effected from him while as per the case of the prosecution, he supplied the alleged charas of 500 grams to accused Sikander. PW9 in cross examination has stated that they started for Haridwar at 3.30 p.m while PW4 has stated that they started at 4.30 p.m. PW10 had made entry in PS Kotwali. PW10 stated that he does not know if IO had made efforts to join the public persons at the time of recovery of WagonR Car no. UP16P 7260. The said car was locked at the time of recovery. A key maker was arranged by the IO and the car was got opened at about 1.00 - 1.30 a.m. He cannot tell the name of the said key maker. They did not go to PS Kotwali after recovery of the said car while PW9 has stated that after recovery of the car, they again reached at PS Kotwali.
33. As per evidence of PW10, the car was locked at the time of recovery and a key maker was called to open the car. However, PW9 did not state that the car was lying locked or that it was got opened through key maker at that time. Perusal of the record reveals that neither the said key maker has been named in the documents nor cited as witness or examined in this case. The car was got opened at about 1.00 - 1.30 a.m. It is unbelievable that any key maker would be available at this time. Thus, the version of prosecution seems to be doubtful.
34. In the cross examination conducted by Ld. Addl.PP, FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 31 of 49 PW9 has admitted that the said car was without any number at the time of recovery. He admitted that on checking the engine number of WagonR car was found to be 4338590 and its chesis number was 514798 and on telephone from Noida Control Room, he came to know that the actual registration number of the car was UP 16T 7260. PW9 who was with PW10 has not deposed even a single line that the car was without number plate or that the same was got confirmed by him from Noida Control Room. He only stated so after leading questions were put to him by the Ld. Addl.PP. Even in his examination in chief he has stated that WagonR Car No. DL 7C 3700 was recovered while as per disclosure statement the car was without number plate. The car was allegedly seized from quarter no.T2 Railway Station Quarters, Haridwar. It is not the case of the prosecution that the said house belongs to accused Dilawar. PW9 has not interrogated any one from the said quarter as to how and since when the said car was standing in front of their quarter or that they had made any call to the police in respect of said abandoned car. There is no investigation on this point. Thus, the IO has failed to associate any public witness in this case at the time of recovery of the said car.
35. Seizure memo of the car Ex.PW9/E & Ex.PW9/D has been prepared by HC Sahender Pal. PW9 sometimes has stated that he himself prepared the seizure memo Ex.PW9/E and sometimes FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 32 of 49 stated that the same was prepared by HC Sahenderpal. Further, said HC Sahender Pal has neither been cited as witness in this car nor examined. He is also not the witness of the said seizure memos.
36. The car was allegedly recovered from Haridwar. The police officials started from Haridwar in the night at about 2.30 a.m and reached Delhi in the morning. It is not explained by the prosecution as to how the said car was brought to Delhi and as to how the investigation team alongwith accused reached at Delhi.
37. PW9 stated that they started from Haridwar for Delhi at about 2.30 a.m on 01.07.2007 and reached LBS Hospital at about 9.00 a.m. PW10 stated that on 01.07.2007, he again joined the investigation of the case and accused Dilawar got recovered a motorcycle make Bajaj Discover bearing no. DL 3S AW 4028 from LBS Hospital parking. It is not understood as to how PW10 again joined in the investigation when he was already in the investigation and went to Haridwar with PW9. There is contradictory version of PWs in this respect. PW10 stated that seizure memo Ex.PW9/E was prepared by him while PW9 stated that the recovery memo of the alleged motorcycle was prepared by HC Sahender Pal. The prosecution has neither cited HC Sahender Pal as a witness nor examined him. He has even also not been made a witness in the seizure memo. The motorcycle was recovered from the parking of LBS Hospital. No Parking person has been examined by the IO.
FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 33 of 49 There is no evidence as to who has parked the said vehicle in the parking and since when it was parked there. The recovery of motorcycle was got effected in the day time i.e. at about 9/10 a.m. At that time a number of patients with their attendants visits the hospital. But the IO has made no effort to join any public person in the investigation at the time when accused Dilawar got recovered the motorcycle. PW10 stated that the motorcycle was locked at that time. There is no evidence as to whether the key of the motorcycle was with accused or not. No evidence has been brought on record as to how it was opened. It was taken to PS in a rickshaw but the IO has not cited the said rickshaw wala as witness in this case. The seizure memo of motorcycle shows that the motorcycle was recovered u/s 102 Cr.P.C. However, the IO has not tried to establish as to in whose name, it was and from where it was stolen and what was the FIR number. The said motorcycle is simply lying in the malkhana. In the matter of Gudela Ramesh & Ans Vs. the State of A.P., 2003 I AD (Cr.) A.P. 764 in head note it is stated that 'Sec.411 - Stolen property - Criminal procedure, Code 1973 - Sec. 374 - Appeal against conviction - Appellant - Found in possession of stolen motorcycle - No independent witnesses were joined by police at the time of recovery - Not safe to convict accused on the basis of uncorroborated testimony of police officials'. In the matter of Niranjan lal Vs. State of Haryana, 1995 CRI. L.J 48 in head note (C) it is stated that 'Ss.27 and 3 - Recovery in pursuance of FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 34 of 49 disclosure by accused - Credibility - Recovery of vehicle - Recovery made two days after disclosure. Failure to inform police station within whose jurisdiction recovery was affected - Inability of complainant to give correct registration number of vehicle - Held, alleged recovery was doubtful'.
38. In the instant case, no independent public witness has been joined at the time of recovery of car as well as motorcycle. No DD entry has been produced showing that PW9 has also informed the concerned PS. No witness has been examined in this respect. There is no evidence that concerned PS was informed regarding recovery of car and motorcycle from their jurisdiction. The testimonies of the witnesses as discussed above does not inspire confidence. Supplementary statement of accused was recorded on 30.06.2007 but recovery of motorcycle was allegedly effected on 01.07.2007. Considering the over all facts and circumstances of the case regarding recovery of car no. DL 7C 3700 (original no. UP 16P 7260) as also motorcycle no. DL 3SAN 4028 is doubtful. Accused Dilawar is entitled to be given the benefit of doubt. Accordingly, he is acquitted of charge u/s 411 IPC.
39. In the present case, Charge u/s 468/471 IPC has been framed against both the accused Sikander and Dilawar with regard to forging the number plates of the car.
468. Forgery for purpose of cheating.--
FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 35 of 49 Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
40. Considering the above definition of Section 468/471 IPC, it is emphatically clear that the documents or electronic record should have been forged for the purpose of cheating and using the same as genuine. In the instant case, accused Dilawar has moved to Hon'ble High Court against the charge framed u/s 468/471 IPC. Vide order dated 21.08.2014, Hon'ble High Court has held that ingredients of offence u/s 468/471 IPC are not made out, however, prima facie offence u/s 411 IPC is made out. Thus, Charge u/s 411 IPC was framed against accused Dilawar. In view of the said observation of Hon'ble High Court, the charge framed against FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 36 of 49 accused Dilawar u/s 468/471 IPC cannot sustain.
41. As far as the charge against accused Sikander u/s 468/471 IPC is concerned, the charge has been framed for forging the number plate of the car no. HR 17 4746 and using the same as genuine, allegedly recovered from accused Sikander. Considering the definition of Section 468/471 IPC, it is emphatically clear that the documents or electronic record should have been forged for the purpose of cheating and using the same as genuine. No document has been forged or used by accused Sikander for the purpose of cheating. Thus, in my view, Section 468/471 IPC is not made out in this case against accused Sikandar. However, it is on record that the car recovered from accused Sikandar was bearing the number plate HR 17 4746 while on confirmation, the original number of the car was revealed as DL 8C 7960 which was stolen from PS Sihani Gate, Ghaziabad vide FIR no.67/2000. Thus, the car was bearing the fake number plate. Section 481 IPC contemplates - Using a false property Mark - 'whoever marks any movable property or goods or any case, package or other receptacle containing movable property or goods, or uses any case, package or other receptacle having any mark thereon, in an manner reasonably calculated to cause it to be believed that the property or goods so marked, or any property or goods contained in any such receptacle so marked, belong to a person to whom they do not belong, is said to use a false FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 37 of 49 property mark. Punishment for the same is prescribed u/s 482 IPC. Considering the same as also the fact that the stolen car was recovered from the accused affixed with fake number plate, I am of the view that there is sufficient evidence against the accused u/Section 482 IPC.
42 Charge has also been framed against both the accused u/s 29 NDPS Act. It is a well settled law that in a case of conspiracy, the agreement between the conspirator cannot be provided directly but it can be only inferred from the circumstances of each case. A conspiracy need not be established by evidence of an actual agreement between the conspirators and overt acts raised a presumption of an agreement and knowledge of the purpose, of the conspiracy. The connection has to be established with the conspiracy and not with the separate acts of different conspirators which are the overt acts of the different individuals in proof of the conspiracy. Overt acts may properly be looked at as evidence of the existence of concerted intention in many cases, it is only by means of overt acts that the existence of the conspiracy can be made out. Further, a conspiracy is generally a matter of inference deduced form certain criminal acts of the accused, done in pursuance of an apparent criminal purpose in common between them. In a case of conspiracy, when there is no direct evidence, inference from proved circumstances must be to a large extent form the basis of courts conclusion. Direct evidence of conspiracy is almost an impossibility FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 38 of 49 as it is in a rare case only that there is direct evidence of the place where the conspiracy was entered into. Conspiracies have to be inferred from the subsequent conducts of the parties having regard to all the circumstances of the case.
43. In the instant case, accused Dilawar was named in the disclosure statement of accused Sikander. He appeared before the Court himself. Admittedly, there is no recovery of contraband from accused Dilawar. As per disclosure statement of accused Sikandar Ex.PW3/F, charas was given to him by accused Dilawar at Durgapuri Chowk for supply to Saleem and Shafique in Noida. Perusal of disclosure statement Ex.PW9/C of accused Dilawar revealed that he has only stated that the charas was given by him to Sikander but he has no where stated that he had given the said charas to accused Sikander for supply to Saleem and Shafique in Nodia. In cross examination, PW9 has stated that Saleem and Sharif could not be traced out. No shop in the name of Saleem and Sharif was found in concerned locality. He visited Durgapuri Chowk. He did not get the place of delivery of contraband pointed out by the accused persons during investigation. PW10 has also admitted that accused Dilawar did not point any place at Durgapuri Chowk and Atta Market. Thus, the prosecution has failed to get the place of delivery of contraband pointed out by the accused. As per disclosure statement of accused Dilawar, the remaining charas of 500 grams available with him, was kept in the car which was recovered from FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 39 of 49 Haridwar. The car was duly locked at the time of recovery. However, there is no evidence that any such remaining charas of 500 grams was recovered from the said car. PW9 stated that accused Sikander Iqbal pointed out the house of Dilawar Singh in a gali at Durgapuri but Dilawar was not traceable there. In cross examination, he has stated that the distance between the house of accused Dilawar from Durgapuri Chowk is about one and half kilometer and it is in Western direction of Durgapuri Chowk. As per disclosure statement as well as arrest memo, accused Dilawar is the resident of Balbir Nagar. He is not the resident of Durgapuri. It is emphatically clear that accused Sikander was not knowing the house of accused Dilawar. No call details between both the accused has been proved on record to show the meeting of minds between them. Thus, there is no evidence on record by which it could be inferred that both the accused had conspired with each other to commit the offence of the present case. In the facts and circumstances of the case, prosecution has failed to prove the charge against accused Sikandar and Dilawar for the commission of offence u/s 29 NDPS Act. Both the accused are acquitted u/s 29 NDPS Act. The case u/s 411 IPC against accused Dilawar is also doubtful. Thus, he is also acquitted u/s 411 IPC. Accused Dilawar is directed to furnish personal bond in the sum of Rs.20,000/ with a surety in the like amount u/s 437A Cr.P.C.
FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 40 of 49
44. However, on evaluation of the testimonies of the prosecution witnesses about recovery of 500 grams charas from accused Sikander i.e. PW3 Ct. Mahesh Kumar, PW5 Insp. Arun Kumar, PW6 HC Satyavir Singh and PW7 HC Gajender, it stands proved that they remained consistent and confident in their deposition and no infirmity or discrepancy has emerged during their cross examination. No contradiction favouring the defence of the accused has come out in cross examination of the witnesses. There is no reason to discredit the credibility and reliability of the witnesses. It stands proved that the proceedings have been conducted meticulously and in compliance of the Act. The recovery of 500 grams charas from accused Sikander has thus, been proved by the prosecution. FSL result Ex.P9/F confirms that sample Mark S1 and Mark S1, on examination were found to be Charas.
45. Accused Sikander has taken the defence in his statement u/s 313 Cr.P.C that he was lifted by the police on 10/11.0 2.2007 from Ashok Nagar, Delhi 110093 from the house of his in laws and falsely implicated in this case. The accused has failed to examine any witness to prove this defence. Also no complaint has been placed on record by which it can be inferred that he was picked up from his inlaws house and falsely implicated in this case. It seems that the accused taken this plea only for the sake of plea which has not been proved by leading the evidence.
FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 41 of 49
46. Ld. LAC submitted that in the present case, sample of charas was taken and sent to CRCL and as per CRCL report 0.7% THC was found. He submits that considering the same, the total quantity comes to be smaller quantity. Ld. Addl.PP has argued that the entire quantity of charas is to be taken into consideration.
47. PW3 has stated that on weighing, the total weight of the two bricks came out to be 500 grams. 50 grams charas was separated as sample from each bricks and were placed in two transparent polythenes pouch and were given Serial no.S1 and S2. Remaining charas was converted into pullanda and given serial no. A. No suggestion has been put to this witness by Ld. Defence counsel that samples were not drawn from each slab. PW5 Insp. Arun has stated that some material was taken from the bricks and tested which gave positive result for charas. He took two samples of 50 grams each from the recovered charas and converted the same into pullandas. No question has been put to PW5 in respect of drawing of samples. Similar is the statement of PW7 HC Satyavir. Thus, from the evidence available on file, it is crystal clear that the samples were drawn from the entire substance. As far as the submissions of Ld. Counsel regarding percentage of contraband in the recovered substance is concerned, the recovery in the present case was effected on 13.02.2007. Ld. Counsel submitted that at the relevant time, the FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 42 of 49 purity percentage used to be taken into consideration. He submitted that in view of the law laid down by the Hon'ble Supreme Court in case titled as E.Micheal Raj Vs. N.C.B., in Appeal (crl.)1250 of 2005 decided on 11th March 2008, the method of percentage of the recovered substance is applicable to the cases which pertains to the period prior to the notification came into existence in the year 2009.
48. In the case of Dilip Vs. State (Delhi)(D.B.), 2010 (7) AD (Delhi) 709, it is observed by the Hon'ble Division Bench of Hon'ble High Court of Delhi, as under: "21. Therefore, our answer to the question is that the percentage of THC in a sample of charas by itself cannot be determinative of the purity of the sample. Furthermore, a test resulting in the quantification of the percentage content of THC is neither relevant nor necessary for the purposes of considering the grant of bail or of awarding sentence under the Narcotic Drugs And Psychotropic Substances Act. We may point out that in the question referred to us, Section 21 of the Narcotic Drugs and Psychotropic Substances Act has been mentioned, whereas the context is in respect of an alleged recovery of charas. We have mentioned above that Section 21 deals with 'psychotropic substances' and has nothing to do with the punishment in relation to cannabis (charas, ganja or a mixture thereof) and cannabis plants, which are specifically dealt with under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. Therefore, we have FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 43 of 49 taken the reference to Section 21, in the question referred to us as being a reference to Section 20 of the Narcotic Drugs and Psychotropic Substances Act".
49. In the matter of State through Intelligence Officer Narcotics Control Bureau Vs Mushtaq Ahmad Etc., 2015 (4) R.C.R.(Criminal) 652, the Trial Court had convicted the accused for the possession of commercial quantity of charas while considering the whole of the quantity of charas recovered from the accused. The Judgment of Trial Court was set aside by the Hon'ble High Court observing that quantity (whether small, intermediate or commercial) is to be assessed on the basis of percentage of THC present in charas and thus, Hon'ble High court set aside the Judgment of Trial Court and converted the conviction from Section 20 (b) (ii) (C) to 20 (b) (ii)(B). Thereafter, State filed an appeal before Hon'ble Supreme Court and Hon'ble Supreme Court upheld the Judgment of Trial Court. The head note of this Judgment reads as follows: "Narcotics Drugs and Psychotropic substances Act, Section 20(b) (ii) (c) and 8 - Seizure of 6.2 Kgs and 4 Kgs of charas from the possession of two accused persons in the year 2004 It is commercial quantity - Each of them rightly convicted by trial Court and sentenced to 10 years RI and to pay fine of One Lakh - Order of High Court converting the conviction from Section 20(b)(ii) (c) to 20(b)(ii)(b) not valid and set aside. 2008 (2) FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 44 of 49 RCR (Crl.) 597, Distinguished, 2011 (2) RCR (Crl.) 560 : 2011 (2) Recent Apex Judgement (RAJ) 373, Relied".
50. The charas has been defined in Section 2(iii) of the NDPS Act and it reads as under:-
"(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja,............
(c) any mixture...........
51. In the matter of Rattan @ Ratan Singh v. State (Govt of NCT of Delhi) (Delhi), and Bilal Vs. State (Govt of NCT of Delhi), (Crl A.No.605 of 2012 and Crl.A No.1239 of 2012 decided on 24.01.2013), 2013(3) RCR (Criminal) 841, it is stated in the head note that: "E. Commercial Quantity - Purity of contraband - Entire quantity of charas would govern the fact whether it was a small or commercial quantity - Possession of 1 Kg and 2 Kgs. of charas held to be commercial quantities - Appeals dismissed. 2010(7) RCR (Criminal) 1448, relied".
It is observed in the above noted case that: "33. The contention raised on behalf of the Appellants FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 45 of 49 is fallacious. The question of purity of a contraband was considered by the Division Bench of this Court in Dilip v. State, 2010(7) R.C.R.(Criminal) 1448 : (2011) Cri L.J. 334, wherein the judgment in E.Micheal Raj was also duly considered by this Court. The Division Bench considered the definition of cannabis as given in Section 2(iii) as including Charas in Section 2(iii)(a) of the Narcotic Drugs And Psychotropic Substances Act, possession whereof is punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and possession of psychotropic substances which is punishable under Section 21 of the Act. Charas as defined in Section 2(iii)(a) is the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. Thus, Charas is a separated resin, whether crude or purified obtained from the cannabis plant. For the purpose of applicability of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, the Court is simply to see whether the substance recovered is Charas or not and not its purity. Entry 150 of the notification No.S.O.527(E) dated 16.07.1996 shows that possession of just 2 gms of Tetra Hydro Cannabinol would fall in the small quantity and anything beyond 50 gms would be a commercial quantity, whereas in case of Charas, any quantity upto 100 gms would be small quantity whereas 1 kg and above of Charas will be commercial quantity. In para 14, the Division Bench in Dilip held as under : "14. From the above provisions, it is apparent that cannabis is a narcotic drug under Section 2(xiv). On the other hand,THC is a psychotropic substance as it finds mention at S.No.13 in the list given in FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 46 of 49 the Schedule to the Narcotic Drugs And Psychotropic Substances Act. Thus, while cannabis contains THC and THC forms an important constituent of cannabis, THC by itself is a psychotropic substance and is separately regarded under the Narcotic Drugs And Psychotropic Substances Act.
This is important because the nature of the offence and the punishment prescribed for the offence depends on whether a substance is a narcotic drug or a psychotropic substance. The punishment for contravention in relation to cannabis plant is specifically given in Section 20 of the Narcotic Drugs and Psychotropic Substances Act. On the other hand, the punishment for contravention in relation to psychotropic substances is provided in Section 22 of the Narcotic Drugs and Psychotropic Substances Act.
Consequently, it would make a material difference as to whether the alleged contraband is cannabis (a narcotic drug) or THC (a psychotropic substance). The question that requires our decision is not in the context of the percentage of THC as a psychotropic substance, but, the percentage of THC in charas (cannabis), which is a narcotic drug. Thus, the classification of the recovery as a small, intermediate or commercial quantity has to be done from the standpoint of charas (a narcotic drug) and not from the standpoint of THC (a psychotropic substance)."
34. In this view of the matter, the entire quantity of Charas would govern the fact whether it was a small FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 47 of 49 quantity or a commercial quantity. Since the Appellant Rattan was found in possession of 1 kg of Charas and Appellant Bilal was found in possession of 2 kgs of Charas, the same were clearly commercial quantities. The learned Special Judge rightly considered the quantity recovered to be commercial quantity."
52. Similar view has been taken by Hon'ble High Court of Himachal Pradesh in the matter of State of H.P. Vs. Mehboob Khan, reported as 2014 Crl.LJ 705).
53. In the instant case, total 500 grams of Charas was recovered from accused Sikander. In view of the Judgment of Hon'ble Supreme Court in the matter of State through Intelligence Officer Narcotics Control Bureau Vs. Mushtaq Ahmad (supra) as also the Hon'ble High Court in the matter of Rattan @ Ratan Singh Vs.State (Govt. of NCT of Delhi) & Bilal Vs. State (Govt of NCT of Delhi) (supra), the entire quantity of the recovered charas is to be taken into consideration for assessing under which category the present case falls.
54. In view of the above discussions, I am of the considered opinion that the prosecution has proved its case that accused Sikander was found in possession of 500 grams charas which is a intermediate quantity. I therefore, hold accused Sikander guilty for the commission of offence punishable u/s 20(b) (ii) (B) of NDPS FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 48 of 49 Act and u/s 482 IPC and he is convicted thereunder.
55. Accused Aash Mohd. is proclaimed offender in this case. The case file be therefore, preserved and revived as and when accused Aash Mohd. (Since PO) is rearrested.
Announced in the open AJAY Digitally signed by AJAY GUPTA Location: Karkardooma court on 21.04.2018 Court GUPTA Date: 2018.04.21 16:18:16 +0530 (AJAY GUPTA) Addl. Sessions Judge02(East) Special Judge (NDPS) KKD COURTS, DELHI. FIR No.127/2007 State Vs. Sikander Iqbal etc Page no. 49 of 49