Delhi District Court
Fir No.231/2012 State vs . Smt. Hari Kala Etc Page No. 1 Of 41 on 31 March, 2018
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE02 (EAST)/SPL. JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
S.C.No.1220/16
FIR No.231/2012
U/s 20/29 NDPS Act.
PS Madhu Vihar
State
Versus
1. Smt.Hari Kala W/o Sh Suraj
R/o Village Dong
District Raipatti, Nepal
2. Smt. Ram Kali W/o Sh. Ram Bahadur
R/o Village Dong
District Raipatti, Nepal
3. Dhan Sheri W/o Sh Sukhlal
R/o Village Dong
District Rai Patti, Nepal
4. Seeta W/o Man Bahadur
R/o Village Dong
District Rai Patti, Nepal
5. Man Kumari W/o Sh Ramhesh
R/o Village Chanota
District Kapilwastu,Nepal
6. Smt. Seeta W/o Ramesh
R/o Chanota
District Kapilwastu, Nepal ........Accused
FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 1 of 41
Date of Institution: 10.09.2012
Reserved for Judgment on: 23.03.2018
Judgment pronounced on: 31.03.2018
JUDGMENT
1. Prosecution case in brief is that on 28.07.2012 at about 5.25 p.m, SI Neeraj Kumar, who was working as Incharge at Outpost, ISBT Anand Vihar, after investigation of case FIR No.183/12 PS Madhu Vihar, at about 4.15 p.m left for patrolling and reached at Out gate, ISBT Anand Vihar from where HC Yadram was joined and while patrolling they reached platform ISBT Anand Vihar from where Ct. Avnish and Ct. Navneet were joined and they reached near auto stand, under metro line where SI Neeraj saw six ladies standing and talking near a TSR. On seeing the police party, they got perplexed and started hiding themselves. On suspicion, all the said six ladies were stopped. Enquiries were made from them and they all were giving contradictory replies. Four ladies were having something tied around their waist. SI Neeraj gave information through Phone to SHO, who directed to take action. SI Neeraj then called up at the PS and asked Lady/Ct Kalpana and L/Ct Geeta to come at the spot. All the said ladies disclosed their names as Hari Kalan, Dhan Sheri, Ram Kali, Seeta w/o Man Bahadur, Man Kumari and Seeta w/o Ramesh all residents of Nepal. SI Neeraj disclosed about the investigation to TSR driver Shahid Ali and Deepak Kumar Gupta at the spot and they were joined in the investigation. It is further the case of the prosecution that the FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 2 of 41 accused were taken to counter no.40 where in the CCTV control room, search of accused Harikala was conducted by Lady/Ct.Kalpana. L/Ct. Kalpana after conducting the search of accused Harkala, produced a cloth belt (kapde ki peti) which was tied around her waist. The same was checked and 12 packets wrapped in a brown colour tape were found. After removing the tape, 48 small packets in white colour polythenes containing some black colour substance were found. The said substance was checked and it was found to be Charas. Ct. Avnish was sent to bring the IO bag and weighing scale who brought the same. In the meantime, other accused Ram Kali, Dhan Sheri, Seeta, Man Kumari and Seeta were given notices u/s 50 NDPS Act explaining them that charas has been recovered from their coassociate and that there are chances of recovery of charas from them and they were explained that they have a right to be searched in the presence of Gazetted officer/Magistrate and they can take the search of police party and the CCTV Control Room. All the accused were explained the meaning of Magistrate and gazetted officer. All of them refused to avail their rights and their replies were written on the notices. The recovered substance from Hari Kala was weighed and it was found to be 4 Kgs. 900 grams. From all the packets, after breaking, some substance was taken and sample of 100 grams each were taken which were converted into pullandas and given mark S1 and S2. Remaining 4 Kgs 700 grams charas was also converted into FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 3 of 41 pullanda and and it was given Mark A. Form FSL was filled. All the pullandas were sealed with th seal of KN and seized. Thereafter, other accused persons were searched and recoveries were effected from them. On weighing the 32 packets recovered from accused Ramkali, it came to be 4 Kgs 900 grams charas. From all the packets samples of 100 grams each were taken after breaking some charas from each packet and sample pullandas were prepared with the help of cloth which were given Mark S3 and S4 and the remaining 4 Kgs 700 grams charas was converted into pullandas which was given Mark B. All the said pullandas were sealed with the seal of KN, form FSL was filled and the said pullandas was also taken into possession. On weighing the 40 packets recovered from accused Dhan Sheri, it was came to be 4 Kgs 100 grams charas. From all the packets samples of 100 grams each were taken after breaking some charas from each packet and sample pullandas were prepared with the help of cloth which were given Mark S5 and S6 and the remaining 3 Kgs 900 grams charas was converted into pullandas which was given Mark C. All the said pullandas were sealed with the seal of KN, form FSL was filled and the said pullandas was also taken into possession. On weighing the 36 packets recovered from accused Seeta w/o Man Bahadur, it came to be 3 Kgs 600 grams charas. From all the packets samples of 100 grams each were taken after breaking some charas from each packet and sample pullandas were prepared with the help of cloth which FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 4 of 41 were given Mark S7 and S8 and the remaining 3 Kgs 400 grams charas was converted into pullandas which was given Mark D. All the said pullandas were sealed with the seal of KN, form FSL was filled and the said pullandas was also taken into possession.
2. It is further the case of the prosecution that from the possession of accused Man Kumari w/o Ramesh and Seeta w/o Ramesh nothing incriminating was recorded. Total weight of the charas was found to be 17 Kgs 500 grams. It is further the case of the prosecution that on interrogation accused Harikala and Ram Kali disclosed that the said charas was given to them by Mankumari for transporting to Delhi for which they were to be be paid Rs.5000/ and Dhansheri and Seeta told that the charas was given to them by Seeta w/o Ramesh for transporting to Delhi for which they were to be paid Rs.5000/ each. Accused Man Kumari and Seeta w/o Ramesh disclosed that the same used to be given to them by one Bahadur and they used to deliver the same to one Madan at Majnu ka teela for which they used to be paid Rs.20,000/ each and he used to meet them near Gurudwara. Rukka was prepared and it was handed over to HC Yad Ram alongwith all the samples and remaining case property, FSL form and carbon copy of seizure memo with the direction to hand over the rukka to duty officer and remaining articles to SHO. FIR was registered and case property was deposited in the Malkhana.
FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 5 of 41
3. It is further the case of the prosecution that further investigation was entrusted to ASI Rajpal who reached at the spot and custody of accused and relevant documents were handed over to him. ASI Raj Pal prepared the site plan and arrested the accused persons. He also got conducted the personal search of the accused persons through L/Ct. Geeta. Disclosure statements of the accused persons were recorded. During investigation, accused Harikala and Man Kumari were taken on police remand for the arrest of source but he could not be traced. Samples were sent to FSL, Rohini for chemical analysis. Reports u/s 57 NDPS Act was prepared and sent to Senior Police Officers. Pending the receipt of FSL result, charge sheet was filed in the court u/s 20/29 NDPS Act. FSL result was collected and filed in the court. The FSL result confirms that the recovered substance was charas.
4. My Ld. Predecessor took cognizance of the offence. Charge u/s 20(b) (ii) (C) NDPS Act was framed against accused Hari Kala, Dhan Sheri, Sita w/o Man Bahadur and Ram Kali and separate charge was framed against all the accused u/s 29 Arms Act. to which they pleaded not guilty.
5. In order to prove its case, prosecution examined 14 witnesses. PW1 is HC Subah Singh. He is the duty officer. He recorded FIR no.231/2012 Ex.PW1/A. His endorsement on rukka is Ex.PW1/B. FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 6 of 41
6. PW2 is ASI Rajpal Singh. He is the second IO to whom the further investigation was entrusted after registration of the FIR. SI Neeraj Kumar alongwith staff met him and handed over the custody of six accused. He prepared the site plan Ex.PW2/A on the pointing out of Ct. Avnish Kumar. He arrested the accused persons vide arrest memos Ex.PW2/B to Ex.PW2/G and got conducted their personal search vide memo Ex.PW2/H to Ex.PW2/M. He deposed that in the personal search of accused Ramkali, Seeta w/o Ramesh, Mankumari and Sita w/o Man Bahadur notice u/s 50 NDPS Act alongwith other articles were recovered which is placed on record as Ex.PW2/P1 to P5. He recorded the disclosure statements of accused Ex.PW2/N to Ex.PW2/S. He deposited the personal search articles in the Malkhana. He further deposed that he took accused Hari Kala and Man Kumari on PC remand and they took the police party to different places in search of Madan but he could not be traced. On 29.07.2012, he submitted report u/s 57 NDPS Act, carbon copy of which is Ex.PW2/T. Samples were sent to FSL.
7. PW3 is Shahid. He is the TSR driver who was joined in the investigation by the IO. He has deposed that on 28.07.2012 in between 5.00 to 5.30 p.m, he was present at auto stand, Anand Vihar and he heard the conversation of six ladies near his auto. He further deposed that in the meantime, SI Neeraj alongwith HC Yadram, Ct.
FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 7 of 41 Avneesh and Ct. Navneet came towards his auto and after seeing the police team all the six ladies tried to conceal themselves. SI Neeraj stopped them and interrogated but they could not reply properly. SI Neeraj Kumar called two lady constables. The said ladies were taken to counter no.40 Anand Vihar for interrogation. After sometime the police officials called him to Police Post Anand Vihar to join the investigation. In his presence, IO recovered a belt containing black substance from four ladies. The same were seized vide seizure memo Ex.PW3/A to Ex.PW3/D. Nothing was recovered from two ladies. He stated that he cannot identify those ladies due to lapse of time. He was declared hostile by the Prosecution and cross examined by Ld. Addl.PP wherein he admitted that before calling the lady constable IO saw something tied on the belly of the ladies. He and Deepak joined the proceedings at the request of IO. He admitted that thereafter, they all went to near CCTV control room counter no.40. He admitted that firstly, accused Hari Kala was taken to inside CCTV Control room by Lady Constable Kalpana and L/Ct. Kalpana produced a cloth belt which was tied on the belly of accused Hari Kala. IO opened the belt and found 12 packet wrapped in brown tape. IO opened the packet and found black colour substance in it which was found to be charas. He denied that IO had issued notices u/s 50 NDPS Act to the remaining ladies. He does not remember if 4 big and 28 small packets of charas were recovered from the personal search of accused Ramkali or that 9 packets FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 8 of 41 containing 36 small packets of charas were recovered from accused Seeta w/o Man Bahadur and 10 packets containing 40 small packets of charas were recovered from accused Dhan Sheri. He volunteered that packets containing black substance were recovered from four ladies and due to lapse of time, he does not remember the details of recovery. He admitted that nothing was recovered from Man Kumari and Seeta w/o Ramesh. He admitted about weight of recovered charas from four accused. He further admitted that form FSL was filled up at the spot and sealed with the seal of KN and the recovered substance was seized vide seizure memo Ex.PW3/A to Ex.PW3/D. No recovery memos are Ex.PW3/E and F. He identified the case property.
8. PW4 Ct. Avneesh has deposed that on 28.07.2012 he was present on duty at platform checking alongwith Ct. Navneet and at about 5.30 p.m, SI Neeraj and HC Yad Ram came there and they also joined. He deposed that they saw six ladies who appeared to be of Nepali origin, found standing near autos and on seeing the police, they became nervous and tried to slip away and started holding their lower body cloths. SI Neeraj stopped them and he made call to PS for sending ladies constable. Ct. Kalpana and Ct. Geeta came and all the six ladies were taken to platform no.40. One of the lady was checked and found carrying charas in wet condition which was wrapped in a cloth piece and tied with the waist of said FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 9 of 41 lady. SI Neeraj asked him to bring the weighing scale, IO bag and other articles. He brought the same. He deposed about the weight of charas recovered from accused persons and samples drawn from them. He deposed that all the pullandas were taken into possession vide seizure memo Ex.PW3/A to Ex.PW3/D. Seal after use was handed over to him. He identifies all the accused persons as well as the case property.
9. PW5 is Deepak Kumar Gupta is also an auto driver who was joined in the investigation by the IO. He deposed that he saw six ladies who were appearing to be Nepali origin standing near his auto and talking with each other. He identified all the six ladies in the court. He further deposed that at about 5.155.30 p.m, SI Neeraj with HC Yadram, Ct. Avneesh and Ct. Navneet came there while patrolling and on seeing them all the six ladies became nervous and started running. SI Neeraj stopped them. Something was appearing on the abdomen of those ladies. He further deposed that SI Neeraj called at the PS and took all the ladies to counter no.40. He and his friend Shahid also accompanied. Two lady constables arrived and took accused Harikala to CCTV room and produced one black colour belt to SI Neeraj. On opening the same, some packets were found wrapped in the tape and black colour substance was found in it which on smelling was found to be charas. SI Neeraj gave something in writing to accused and asked if they FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 10 of 41 want to be searched before senior officer or magistrate, then they can be called but the accused refused. He further deposed that all the five accused were search by Lady Constable and from three others black colour substance was recovered in packets out of which two samples of 100 grams each were separated and pullandas were prepared. Remaining case property was also converted into pullanda and sealed. He identified the case property. He also deposed that nothing was recovered from Seeta w/o Ramesh and Man Kumari. In cross examination conducted by Ld. Addl.PP, he admitted the suggestion put to this witness.
10. PW6 is Ct. Navneet. He was on duty with PW4 Ct.
Avnish. He was partly examined. Vide order dated 11.01.2018 he was dropped at the request of Ld. Addl.PP.
11. PW7 is HC Yadram. He accompanied SI Neeraj for patrolling on platform. He deposed that when they reached near TSR stand, they saw six ladies who became nervous and tried to slip away but they were stopped. They saw that four ladies were having some articles tied on their abdomen. He further deposed that two ladies constables were summoned from the PS who reached at the spot and after search, recovery of search was effected from them. He proved the notice u/s 50 NDPS Act served to accused as Ex.PW7/A to Ex.PW7/E and refusal of accused to conduct their search before Magistrate or gazetted officer as Ex.PW7/F to Ex.PW7/J. He further FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 11 of 41 deposed about drawing of samples from the recovered substances, sealing and seizure of the same and filling of FSL form. The seizure memos are Ex.PW3/A to Ex.PW3/D, samples drawn are Mark S1 to S8. Remaining pullandas of charas are Mark A, B, C &D. He further deposed that IO prepared the rukka and handed over the same to him with instruction to hand over the same to duty officer and the case property was directed to be handed over to SHO concerned. He handed over the rukka to duty officer and the articles to SHO. He further deposed that SHO put his seal on the FSL form as well as sealed pullandas. On 07.08.2012, on the instruction of ASI Rajpal, he took sealed exhibits vide RC no72/21 for depositing the same in FSL Rohini and after depositing the same, he handed over the receipt to MHCM. He identified the case property.
12. PW8 Ct. Subhash Chand has deposed that on 02.08.2012,he had taken Parcel S1 to S8 from MHCM vide RC no.67/21/12 to FSL CBI. The said office refused to take the same and he returned the parcels to MHCM.
13. PW9 is Lady Ct. Kalpana. She is the witness who was summoned by IO at the spot. She conducted the search of accused Harikala and on checking the blue colour cloth belt, 12 packets wrapped with brown colour tape were found which were removed and 48 white polythenes containing contraband were found which she handed over to SI Neeraj. She further deposed that SI Neeraj FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 12 of 41 gave notice u/s 50 NDPS Act to remaining 5 accused and they were informed about their legal rights to be searched in the presence of gazetted officer/magistrate but all the accused refused. Notice served to accused Man Kumari is Ex.PW7/A, her reply is Ex.PW7/F; notice served to Sita is Ex.PW7/B, her reply is Ex.PW7/G; notice served to accused Ramkali is Ex.PW7/C, her reply is Ex.PW7/H; notice served to accused Sita w/o Man Bahadur is Ex.PW7/D, her reply is Ex.PW7/I and notice served to accused Dhan Sheri is Ex.PW7/E, her reply is Ex.PW7/J. She further deposed that on checking the blue colour belt recovered from accused Ramkali, 13 packets wrapped with brown colour tape were found which further found containing 32 white polythenes. She further deposed that on checking the blue colour belt recovered from accused Dhan Sheri, 10 packets wrapped with brown colour tape were found which further found containing 40 white polythenes. She further deposed that on checking the blue colour belt recovered from accused Sita w/o Man Bahadur, 9 packets wrapped with brown colour tape were found which further found containing 36 white polythenes. She further deposed that nothing was recovered from the search of accused Sita w/o Ramesh and Man Kumari. No recovery memos are Ex.PW3/A and Ex.PW3/F. She further deposed that on weighing, the charas recovered from accused Hari Kalan was found to be 4.900 Kgs out of which two samples of 100 grams each were drawn, converted into pullanda and given Mark S1 and S2 and remaining charas was also FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 13 of 41 converted into pullanda and given Mark A and the same were seized vide seizure memo Ex.PW3/A. She further deposed that on weighing, the charas recovered from accused Ram Kali was found to be 4.900 Kgs out of which two samples of 100 grams each were drawn, converted into pullanda and given Mark S3 and S4 and remaining charas was also converted into pullanda and given Mark B and the same were seized vide seizure memo Ex.PW3/B. She further deposed that on weighing, the charas recovered from accused Dhan Sheri was found to be 4.100 Kgs out of which two samples of 100 grams each were drawn, converted into pullanda and given Mark S5 and S6 and remaining charas was also converted into pullanda and given Mark C and the same were seized vide seizure memo Ex.PW3/C. She further deposed that on weighing, the charas recovered from accused Sita w/o Man Bahadur was found to be 3.600 Kgs out of which two samples of 100 grams each were drawn, converted into pullanda and given Mark S7 and S8 and remaining charas was also converted into pullanda and given Mark D and the same were seized vide seizure memo Ex.PW3/D. All the parcels were sealed with the seal of KN, form FSL was filled and it was also affixed with the same seal. She further deposed that SI Neeraj prepared the rukka and handed over the same to HC Yadram alongwith parcels with the direction to hand over the rukka to duty officer and remaining articles to SHO. After registration of FIR, ASI Rajpal Singh came at the spot and arrested the accused persons vide FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 14 of 41 arrest memo Ex.PW2/B to G and got conducted their personal search vide memo Ex.PW2/H to M. She also deposed that in the personal search of five accused carbon copy of notice u/s 50 NDPS Act was recovered. She identified the case property.
14. PW10 is Ct. Sandeep. He was working as Munshi at Malkhana and on that day SHO had called him with register no.19 and handed over 8 small packets Mark S1 to S8 and big parcels Mark A to D duly sealed with the seal of KN and OPP alongwith FSL form which he deposited in the malkhana vide entry no.640 Ex.PW10/A. He also deposed that SHO had made DD no.53A regarding deposit of case property. He also deposed that ASI Rajpal deposited the personal search articles of the accused persons vide entry no. 640.
15. PW11 is HC Satbir Singh. He is the MHCM. He deposed that HC Yadram came to malkhana and he handed over four sealed parcels to him vide RC no.72/21/12 for depositing at FSL. The RC is Ex.PW11/A and copy of receipt is Ex.PW11/B.
16. PW12 is SI Neeraj Kumar. He is the first IO of this case. He deposed that he left for patrolling alongwith HC Yad Ram and while patrolling Ct. Avnish and Ct. Navneet also joined them. He saw six ladies standing near auto stand and on seeing them, they started fleeing but they were stopped. They gave replies differently.
FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 15 of 41 He found that on the stomach of four ladies,something was tied and they were trying to hide the same. He associated auto driver Shahid and Deepak in the investigation. He summoned the constables from the PS who conducted the search of those ladies. He further deposed on the same lines of the deposition of PW 9 L/Ct. Kalpana regarding search, recovery and seizure from the accused persons and the same is not being repeated here for the sake of brevity. He further deposed that accused Man Kumari and Seeta were taken on PC remand to search the source but despite efforts the said Madan could not be traced. He identified the case property.
17. PW13 is W/Ct Geeta. She reached at the spot with W/Ct. Kalpana (PW9) and remained with her during search and recovery from accused persons. She deposed on the line of PW9.
18. PW14 is Insp. Om Prakash. He is the then SHO posted at PS Madhu Vihar. HC Yad Ram handed over him the case property, FSL form and carbon copy of seizure memo. He put his seal of OPP on all the pullandas and FSL form. He called the Munshi of Malkhana and deposited the same in malkhana and made DD entry no.53A Ex.PW14/A. He further deposed that all the six accused were produced before him and he made enquiries from them and found their arrest justified.
19. Statements of accused persons u/s 313 Cr.P.C were FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 16 of 41 recorded wherein all the accused persons have stated that they are innocent. They have been falsely implicated in this case after lifting them from Monastery at ISBT, Kashmere Gate, Delhi. They did not lead any evidence in their defence.
20. Arguments have been heard from Sh. Maqsood Ahmad, Ld. Addl.PP on behalf of the State as also from Sh K.K.Sharma, Ld.LAC for all the accused persons. Ld. Counsel for accused persons has argued that the accused persons have been falsely implicated in the present case after lifting them from Monastery, Kashmere Gate, Delhi. They are permanent residents of Nepal and they were made target by the police. There are various contradictions in their statements. Ld. LAC further argues that there is no compliance of Section 42, Section 50 and Section 57 NDPS Act in this case and thus, the accused persons need to be acquitted on these technicalities alone. No lady constable has been made as witness regarding service of notice u/s 50 NDPS Act. It is argued that information regarding arrest of accused have not been sent to the senior police officials and that there is no evidence adduced by the prosecution in this respect. Ld. LAC further argued that no notice was served upon accused Harikala and that the notices served upon other accused after recovery from accused Harikala are not as per law. It is further argued that there is also no compliance of Section 57 NDPS Act as no witness has been produced from the FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 17 of 41 office of senior police official for proving the report u/s 57 NDPS Act. As far as recovery of contraband is concerned, Ld.LAC argued that the same has been planted upon the accused persons. The prosecution has failed to prove the recovery as per law. It is submitted that the recovery has not been effected in the presence of any of the prosecution witnesses except PW9 Lady/Ct.Kalpana and that her sole testimony cannot be believed. Recovery is allegedly effected from ladies and how can a police official say that weighty material was tied around the waist of ladies. How IO came on patrolling from investigation of some other case is not believable. It is submitted the story of going to PS through WagonR Car came for the first time during evidence. Some witnesses have stated that there was prepaid booth at the spot while some have stated that there was no prepaid booth while accused were arrested from the booth. He submits that there are contradictions regarding search of accused Harikala and that the IO has not placed on record the CDRs showing that he had made call to the PS for summoning the lady constables. Ld. LAC submits that the prosecution has failed to prove its case beyond all reasonable doubts.
21. On the other hand, Ld. Addl.PP argued that the compliance of all the provisions of NDPS Act have been made in this case. It is submitted that recovery witnesses have supported the prosecution case and withstood the test of cross examination and FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 18 of 41 there is no infirmity in their testimonies. FSL result confirms that recovered substance was charas. There is huge recovery of charas from the possession of the accused persons and such a huge quantity cannot be said to have been planted upon the accused. It is submitted that the prosecution has been able to prove its case against the accused beyond doubt.
22. Dealing with the first contention of the Ld. LAC 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 persons has argued that PW13 W/Ct Geeta has stated that she alongwith PW9 Ct. Kalpana came by bus while PW9 stated that they came by auto to the spot. PW9 stated that they paid Rs.50/ to the auto driver but PW13 stated that they did not purchase the ticket in the bus. It is further argued that PW4 Ct. Avnish stated that L/Ct Kalpana and L/Ct Geeta came to the spot at about 6.30 p.m while IO PW12 stated that they FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 19 of 41 reached at about 6.45 to 7 p.m and other recovery witnesses have stated that they came at 6.00 p.m. PW3 did not see the belt before apprehension of accused while as per statement of IO and HC Yadram, they saw something tied around the waist of accused persons. No other major contradictions has been pointed out by the Ld. LAC. The said contradictions pointed out by the Ld. Counsel cannot be said to be material or significant which goes to the root of matter, particularly, when basic facts have been proved from the documents placed on record.
23. Ld. Counsel argued that how can a police official say that weighty material was tied around the waist of ladies. PW5 Deepak Kumar who is public witness has specifically stated in his examination in chief that "it was appearing that there was something on the abdomen of aforesaid ladies". It is the case of the prosecution that recovery 3.6 kgs to 4.9 kgs were effected from the accused persons. When someone ties such a weight around waist, it would look a bulge and and hence, the arguments of Ld. Counsel is of no consequence.
24. Another contention of Ld. Counsel is that as to why ladies constables were not made witness in notice u/s 50 NDPS Act served upon the accused. Perusal of notice Ex.PW7/A, Ex.PW7/B, Ex.PW7/C, Ex.PW7/D and Ex.PW7/E reveals that L/Ct. Kalpana, examined before the Court as PW9 has been made witness in all the FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 20 of 41 notices at serial no.2. Thus, the submissions of Ld. Counsel is of no consequence.
25. Ld. Counsel submits that when the IO of this case was into the investigation of some other case vide FIR no.183/12 and then how he came on patrolling and apprehended the accused persons. PW12 has clearly stated in his examination in chief that he was present at out post after investigation of case FIR no.183/12 PS Madhu Vihar. Record reveals that he was in the investigation vide DD no. 15A which was recorded at about 9.30 a.m. It was the case u/s 363 IPC. PW4 Ct.Avneesh and PW7 HC Yad Ram are the witnesses of investigation. PW7 HC Yad Ram stated that SI Neeraj came to him and he accompanied him from outgate and Ct. Avnish and Ct. Navneet were also on the patrolling duty on the platform. PW4 Ct. Avnish also corroborated that SI Neeraj and HC Yad Ram came there from the side of outer gate. PW12 SI Neeraj went for patrolling in the morning hours and he came back and then went on patrolling in the evening time. Thus, the submissions of Ld. Counsel that how SI Neeraj came on patrolling has no merit.
26. Another submission of the Ld. Counsel is that it is not explained as to how the WagonR car came at the spot by which PW7 HC Yadram had taken rukka to the PS. As per statement of PW7, the said car was provided to PW7 by PW12 for taking rukka to PS. It is a private car for which no record is maintained. This FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 21 of 41 submission of Ld. Counsel also has no merit.
27. It is further argued that PW5 Deepak has admitted in his cross examination that there was no prepaid booth inside Anand Vihar ISBT and that he was standing under metro pillar. He submits that since there was no booth, the prosecution version that ladies were apprehended from near booth is doubtful. It is in evidence that the ladies were standing near the TSR stand. PW3 Shahid in cross examination has stated that he usually park his TSR at the prepaid booth Volunteered there were three prepaid booths at Anand Vihar Bus Terminal. No one has stated that the accused persons were standing at the prepaid booth. This submission of Ld. Counsel has also no merit.
28. Ld. Counsel submitted that PW9 Ct. Kalpana stated that personal search of accused Hari Kala was taken by Ct. Geeta while Ct.Geeta has stated that it was taken by Ct. Kalpana. It is recorded in the cross examination of PW9 that Ct. Geeta took the search of accused Hari Kala. However, perusal of her examination in chief, she has stated that she took the search of accused Harikala in CCTV room who was having blue colour cloth belt on her stomach and on checking the said blue colour cloth belt, 12 packets wrapped with brown colour tape were found. PW13 W/Ct Geeta has never stated that she ever took the search of accused Harikala. She has clearly stated that the search of all the accused were conducted by W/Ct FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 22 of 41 Kalpana. In cross examination, Ld. Defence Counsel has not put any question/suggestion to PW13 that search of accused Harikala was taken by her. Thus, the submissions of Ld. Counsel is of no consequence when it is the case of the prosecution that all the accused persons were searched by W/Ct. Kalpana (PW9).
29. Ld. Counsel argued that no CDRs filed in this case by which it can be inferred that Ct. Kalpana and Ct. Geeta were called at the spot by the IO when IO has specifically mentioned that he called from his mobile no.9911119567 as is deposed by him in the cross examination. Record reveals that there is copy of DD no.36A on file which was recorded at about 17:35 Hrs vide which request has been made that women constable be sent to ISBT and accordingly W/Ct Kalpana and W/Ct Geeta were directed to report to SI Neeraj. There was no need to place on record the CDRs of the mobile number of IO on record to prove that he had made call from his mobile when DD no.36A is available on file.
30. Ld. Counsel contended that there is no compliance of Section 42 and Section 50 of NDPS Act in this case as no information was sent to the senior police officials and no notice was served to accused Harikala and the notices served to other co accused are not as per law. PW4 Ct. Avnish, PW7 HC Yadram and PW12 SI Neeraj alongwith PW9 L/Ct. Kalpana, PW23 W/Ct Geeta and two public witnesses PW3 Shahhid and PW5 Deepak are the FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 23 of 41 witnesses of recovery on which the prosecution case mainly rests. PW2 ASI Rajpal reached the spot after recovery had already been effected from the accused. As per the deposition of PW12 SI Neeraj Kumar as also PW7 HC Yadram and PW4 Ct. Avnish, the accused persons were seen at the Auto Stand, ISBT Anand Vihar by the above police officials while they were patrolling. They got suspicious as the accused persons tried to hide themselves. It is thus, clear that it is not a case of secret information but admittedly, it was a chance arrest and recovery as the accused were searched on suspicion. However, notices u/s 50 NDPS Act have been served to all the accused persons except accused Hari Kala.
31. 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 accused persons on seeing FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 24 of 41 the patrolling police party, tried to hide themselves which created a suspicion in the mind of the police officials who thereafter, stopped them and enquired and when they gave replies differently and something was found tied around their waist, two lady constables were called and search of contraband was effected and thus, question of compliance with the safeguards as described under Section 50 of the Act would not arise. In the case 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 FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 25 of 41 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."
32. It is clear that there was no prior information to the IO that accused persons were likely to come with narcotic substance, neither the police official had any reason to believe from their personal knowledge or information that accused persons were likely to be in the area from where they were found with the contraband item. As a matter of fact, even at the time of effecting search, it was not known that an offence under Chapter IV of NDPS Act has been committed by the accused persons. Police officials merely suspected the commission of an offence by reason of the fact that accused persons tried to hide themselves on seeing the police team. 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. 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 FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 26 of 41 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."
33. Applying the aforesaid principles laid down by Hon'ble Supreme Court, I am of the view that in this case recovery having been effected from accused Harikala 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 NDPS Act pales into insignificance. However, record reveals that notices u/s 50 NDPS Act have been served to remaining accused namely Ram Kali, Dhan Sheri, Seeta w/o Man Bahadur, Man Kumari and Seeta w/o Ramesh. The recovery effected from these accused was also a chance recovery. However, since the notices have been served to them before their search, I have perused the said notices Ex.PW7/A to Ex.PW7/E and the replies of accused Ex.PW7/F to Ex.PW7/J. The said notices clearly depicts that charas has been recovered from coaccused Hari Kala and that charas could also be recovered from them and that they have a right to be searched in the presence of Gazetted Officer/Magistrate and they can take the search of CCTV control room before their search. All the accused persons have refused to avail their rights vide replies Ex.PW7/F to FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 27 of 41 Ex.PW7/J. Notices clearly indicate that the same have been read over to the accused persons. Notices bear the signatures of accused persons. Ld. LAC could not point out any infirmity in the said notices. The copy of the said notices were recovered by PW2 ASI Rajpal during the personal search of the accused persons. The recovered notices have also been produced before the Court. Thus, though not required but I find sufficient compliance of Section 50 NDPS Act qua accused Ram Kali, Dhan Sheri, Seeta w/o Man Bahadur, Man Kumari and Seeta w/o Ramesh.
34. As far as compliance of Section 42 NDPS Act is concerned, PW12 SI Neeraj Kumar has stated in his testimony that he briefed the SHO about the same telephonically and requested the duty officer to send two lady constables. This version of PW12 has been corroborated by PW14 Insp. Om Prakash who has stated that he received a telephone call from SI Neeraj who informed that six ladies,out of them four, had tied something on their abdomen. He issued instructions for conducting an enquiry. No question or suggestion has been put by the Ld. Defence Counsel to any of the witnesses in the cross examination that information as contemplated u/s 42 NDPS Act has not been sent to the senior police official. Section 42 of the NDPS Act would be only applicable when search, seizure and arrest have to be effected without warrant or authorisation in any building, conveyance or enclosed place. If such places are not to be entered into and searched, the provisions of FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 28 of 41 Section 42 of the NDPS Act will not be applicable. Sections 41 & 42 of the NDPS Act apply when there is a prior information about the presence of the contraband article in any building, conveyance or enclosed place, while Section 43 applies when information as such is not about the presence of a contraband article at any of such place, but such article is likely to be brought in any public place. The evidence of present case revealed that the apprehension of accused persons was a chance arrest. The police officials were on patrolling when the accused persons were arrested. Thus, there was no need to send the information in writing to senior police officials as contemplated u/s 42 NDPS Act.
35. Ld. LAC further contended that there is no compliance of Section 57 of NDPS Act. PW12 SI Neeraj has deposed that he prepared special report u/s 57 NDPS Act regarding seizure of the contraband from the accused persons and the same was forwarded to the SHO who forwarded the same to senior police officials. Carbon copy of the said report is Ex.PW12/B. PW2 Ct.Avnish deposed that on 29.07.2012, he submitted special report u/s 57 NDPS Act. to the SHO, carbon copy of which is Ex.PW2/T. The copies of both the reports are available on file. Though, PW14 Ins. Om Prakash did not depose anything in respect of reports u/s 57 NDPS Act in his testimony, however, perusal of reports reveals that both the reports bears the signature of PW14 Insp. Om Prakash, the then SHO and he FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 29 of 41 forwarded the same to senior officer. Section 57 clearly indicate that the report of seizure and arrest has to be sent to immediate official superior. Record reveals that both the IOs have sent separate report to their immediate superior/SHO. Though there is no document on record to show that the said reports were sent to the office of ACP, however, no benefit can be given to the accused persons on this sole ground unless it has been shown that some prejudice has been caused to the accused and in the instant case, it has not been pointed out as to what prejudice has been caused to the accused. Further Section 57 NDPS Act is directory in nature. In taking this view, I am supported by the Judgement in the matter of Suresh Chandra Vs. State of Uttranchal, 2012 Cri.LJ 4131.
36. Another submission of Ld. LAC is that the sample were sent to FSL with delay and thus, tampering of the case property cannot be ruled out. The recovery in the present case was effected on 28.07.2012. The samples were sent to FSL Rohini on 07.08.2007 vide RC Ex.PW11/A. Ld. Counsel submits that there is delay of about 10 days in sending the sample. 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 FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 30 of 41 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.
37. 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.
38. Coming to the facts of the case, PW12 SI Neeraj Kumar deposed that he prepared pullanda Mark S1 to S8 and A to D which were sealed with the seal of NK. He was not cross examined on the aspect of seal at all. He deposed that he handed over the sealed pullandas to PW7 HC Yadram. PW7 deposed that SI Neeraj handed over the rukka and case property, samples alongwith FSL form and FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 31 of 41 carbon copy of seizure memo and he took them to PS and handed over the rukka to Duty Officer and remaining articles to SHO. No specific suggestion was put to him that IO had not put his seal of KN or that he did not produce the case property before SHO. PW14 Insp. Om Prakash confirms in his testimony that he had received the parcels Mark S1 to S8 and A,B,C and D sealed with the seal of KN, FSL form and carbon copy of seizure memo from HC Yad Ram (PW7). He was not questioned in cross examination with regard to seal at all. He deposed that he put his seal of OPP on the same including FSL form and thereafter, called the Malkhana Munshi Ct Sandeep with register no.19 and handed over the articles to him for depositing the same in the Malkahana and that he made relevant entry in register no.19 and he recorded DD no.53A Ex.PW14/A. He was again not questioned on this aspect in cross examination, except a mere suggestion that HC Yad Ram had not produced any pullandas/FSL form before him. PW10 Ct. Sandeep, the then Munshi at Malkhana corroborates PW14 by stating that PW14 Insp. Om Prakash had produced pullandas Mark S1 to S8 and A, B, C and D in sealed condition with the seal of KN and OPP alongwith FSL form and carbon copy of seizure memo. He proved relevant entry no.6409 made in register no.19 vide Ex.PW10/A. Nothing material has come out in cross examination of PW10. PW7 HC Yad Ram deposed that on 07.08.2012 he took sealed exhibits vide RC no.72/21 for depositing in FSL and after depositing the same he FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 32 of 41 handed over the receipt to MHCM. RC No. 72/21 with detail is proved as Ex.PW11/A by HC Satbir Singh (PW11) without any challenge. Acknowledgement receipt has been tendered in evidence as Ex.PW11/B. There is mention of sealed pullanda and FSL form in RC. As per FSL result Ex.PX, the sample mark S1, S3, S5 and S7 was bearing the seals of KN and OPP and the same was received on 07.08.2012 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 witnesses. The case property was produced before the Court in sealed condition. No question with regard to tampering of seals has been put to any of the prosecution witness. 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.
39. Ld. LAC also contended that the prosecution has failed to prove the recovery in this case. He submitted that there no witness to the recovery except PW9 W/Ct. Kalpana. He submits that PW3 has stated that in his presence IO recovered a belt containing black substances from four ladies. PW3 in cross examination conducted by Ld. Addl.PP has specifically stated that it is correct that first accused Hari Kala was taken inside CCTV Control room by L/.Ct.Kalpana and after sometime they came out and L/Ct produced a cloth belt which was tied on the belly of the accused. He FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 33 of 41 also stated about recovery from each accused. In cross examination no suggestion or question has been put to PW3 by the Ld. Defence Counsel that PW L/Ct Kalpana never took the accused to CCTV Control room for their search. PW3 is a public witness. He cannot be expected to make a parrot like statement. In the present case all the accused were ladies. Keeping in view the modesty of ladies, PW12 SI Neeraj called ladies constables from the PS and thereafter, search was conducted in CCTV control room by W/Ct Kalpana. Admittedly, except W/Ct. Kalpana (PW9) and PW13 W/Ct Geeta none else was present in the said room. PW9 Ct. Kalpana in her statement has clearly stated that she took search of accused Hari Kala in CCTV room and on checking a blue cloth colour belt, 12 packets wrapped with brown colour tape were found and on removing the said tape 48 white polythenes were found containing the contraband which she handed over to SI Neeraj (PW12). She also deposed about serving of notice u/s 50 NDPS Act to accused Ram Kali, Dhan Sheri, Man Kumari and Seeta and Seeta w/o Ramesh. She further deposed that she took the search of Ram Kali who was having blue colour cloth belt on her stomach and on checking 13 packets wrapped in blue colour tape were found which further found contained 32 white polythenes contraband. She also deposed that she took the search of accused Dhan Sheri who was having blue colour cloth belt on her stomach in which 10 packets wrapped with brown colour tape were found and on removing the FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 34 of 41 tape 40 white polythenes containing contraband were found. She further deposed that she took the search of accused Sita w/o Man Bahadur who was having blue colour cloth belt on her stomach in which 9 packets wrapped in brown tape were found and on removing the team 36 white polythenes containing contraband were found. On search of accused Sita w/o Ramesh and Man Kumari nothing was recovered. The said recoveries were effected by her in the presence of PW13 W/Ct.Geeta. PW13 W/Ct Geeta has corroborated the version of PW9 regarding recovery of charas from the accused persons. PW12 weighed the said recovered packets. The packets recovered from accused Hari Kalan were found to be 4 Kg 900 grams, packets recovered from accused Ram kali were found to be 4 Kgs 900 grams, packets recovered from accused Dhan Sheri were found to be 4 Kgs 100 grams and packets recovered from accused Seeta w/o Man Bahadur were found to be 3 Kgs 600 grams. Out of said recovered contraband, two two samples of 100 grams each were drawn by PW12. The testimony regarding recovery from the accused persons has been corroborated by PW13 W/Ct. Geeta who was with her during search of the accused persons. The submission of Ld. Counsel that the recovery cannot be said to have been proved only on the sole testimony of PW9 and PW13 is of no consequence. Hon'ble Supreme Court, in the matter of Baldev Singh Vs State of Haryana, held that evidence of police witnesses cannot be discarded merely on the ground that they belong to police FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 35 of 41 force and interested in the investigation and their desire to see the success of the case. In the present case, two public witnesses have also been associated by PW12 who, though have not seen searching the accused by PW9 but from their statements it can be inferred that the accused persons were present at the spot and that recoveries were effected from them. Even search of accused persons were not conducted by PW9 in the presence of any other police official except PW13 but their testimonies clearly indicate that the accused persons were apprehended at the spot and recoveries were effected from them. In cross examination, no suggestion/question has been put to PW9 by Ld. LAC that she did not conduct the search of the accused persons or that no contraband was recovered from them. Accused persons are the residents of Nepal. Admittedly, the police officials had no previous enmity with the accused persons. It is not possible to accept the contention of the Ld. LAC that the accused persons have been falsely implicated as it is highly improbable that such a huge quantity has been arranged by the police officials in order to falsely implicate the accused persons. In my view the prosecution has successfully proved the recoveries of contraband effected from the accused persons.
40. I have considered the evidence on record. In this case prosecution has associated two public witnesses PW3 Shahid and PW5 Deepak Kumar Gupta who were the drivers of TSRs. As per the case of the prosecution, all the accused persons were altogether FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 36 of 41 present near the TSRs. Both the public witnesses could not identify the accused persons by their names, however, they identified them by their faces. They clearly deposed about apprehension of the accused on suspicion and conducting of their search in CCTV Control room and regarding the recovery of contraband effected from them. The contraband was weighed in their presence. On the basis of evidence, I come to the conclusion that all the witnesses specially PW3 Shahid, PW5 Deepak, PW4 Ct.Avnish, PW7 HC Yad Ram, PW9 W/Ct Kalpana, PW13 W/Ct Geeta and PW12 SI Neeraj have corroborated the statements of each other regarding recovery of charas from accused Hari Kala weighing 4 Kgs 900 grams, Ram Kali weighing 4 Kgs 900 grams, Dhan Sheri weighing 4 kgs 100 grams, Seeta w/o Man Bahadur weighing 3 Kgs 600 grams. Other accused Man Kumari and Seeta w/o Ramesh were present with accused the four accused persons at the time of apprehension. Rukka was prepared and sent to PS alongwith case property through PW7 HC Yad Ram for the registration of the FIR and handing over the case property to SHO. PW14 Insp.Om Prakash was working as SHO and he has stated that HC Yad Ram handed over the pullandas of contraband sealed with the seal of KN, FSL form and seizure memo of charas and he affixed his seal of OPP on them. He called Munshi of MHCM with register no.19 and deposited the same in malkhana. PW10 HC Sandeep had made entries regarding deposit of the case property in the malkhana alongwith FSL form and other FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 37 of 41 relevant documents against which entry Ex.PW10/A was made. No suggestion has been put to PW4 Insp.Om Prakash that he did not put his seal on the pullandas or that he did not deposit the same in malkhana. There is sufficient compliance of all the provisions of NDPS Act in this case. The testimonies of witnesses could not be shattered by the Ld.LAC. Accused persons have taken the plea in their statements recorded u/s 313 Cr.PC that they have been falsely implicated in this case after lifting them from Monastery at ISBT Kashmere Gate. However, the accused persons have failed to lead any defence evidence in their favour to prove the defence. It seems that they have taken the plea just for the sake of plea which has not been proved on record. No complaint to any authority was made by the accused persons with regard to their false implication. Perusal of the documents indicate that the same were signed by the accused persons after having been prepared by the IO. Admittedly, all the accused persons are the residents of Nepal. They have failed to show as to why they came to Delhi on that day and as to why they were present at the spot. Accused persons have not lodged any complaint to any authority regarding their false implication. The prosecution has associated public witnesses in this case who alongwith other police officials have corroborated the statements of each other. Thus, I am of the view that the prosecution has proved the recoveries effected from the accused persons.
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41. In the present case, charge against all the accused has been framed u/s 29 NDPS Act and accused Ramkali, Hari Kala, Dhan Sheri, and Mankumari have also been charged u/s 20(b) (ii)(C) NDPS Act. Ld. LAC submits that charge u/s 29 NDPS Act could not be proved because no recovery has been effected from two accused Man Kumari and Seeta w/o Ramesh. As per evidence, it is an admitted position that no recovery has been effected from accused Seeta w/o Ramesh and Man Kumari. Section 29 NDPS Act contemplatesPunishment for abetment and criminal conspiracy. In the present case, though all the accused persons were found altogether but they were not exchanging any contraband with each other. They were just standing together at the auto stand. Conspiracy is hatched in dark. Thus, direct evidence is seldom forthcoming, however, the offence can be proved in relation to the acts, deeds or things done by the coconspirators, thus question would arise as to what nature of the acts, deeds and things would constitute conspiracy. Is merely moving around together or seen in each other's company sufficient? If not, what more should be there from which it could be inferred that the conspirators were acting to achieve the desired offence in furtherance of a crime.
42. To bring home the charge of abetment and criminal conspiracy in terms of Sec.29 of NDPS Act., it is necessary to establish that there was an agreement between the parties for doing FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 39 of 41 an unlawful Act. It is difficult to establish conspiracy by direct evidence. It is true that it is difficult to support the charge of conspiracy with direct evidence in every case. Considering the facts of the case, it is clear that the prosecution has failed to bring any evidence on record to prove that there was some meeting of mind between the accused persons. Four accused were found in possession of contraband while nothing could be recovered from two accused. Thus, I am of the view that prosecution has failed to prove the charge u/s 29 NDPS Act against all the accused. All the accused are accordingly acquitted u/s 29 NDPS Act. Accused Man Kumari and Seeta w/o Ramesh are directed to furnish personal bonds in the sum of Rs.10,000/ with a surety in the like amount in view of the provisions contained u/s 437A Cr.P.C.
43. In view of my above discussions, I am of the view that prosecution has proved its case against accused Hari Kala, Ram Kali, Dhan Sheri and Seeta w/o Man Bahadur. Recovery of 4.900 kgs charas was effected from accused Hari Kala and Ram Kali each and recovery of 3.600 Kgs charas was effected from Sita w/o Man Bahadur and recovery of 4.100 kgs charas was effected from accused Dhan Sheri. The accused persons have been charged u/s 20(b)(ii) (C) NDPS Act in this case. FSL result Ex.PX shows that the recovered substance was charas. Thus, prosecution has proved that the accused persons were found in possession of charas in the FIR No.231/2012 State Vs. Smt. Hari Kala etc Page no. 40 of 41 nature of commercial quantity. I therefore, hold accused Hari Kala, Ram Kali, Sita w/o Man Bahadur and Dhan Sheri guilty for the commission of offence punishable u/s 20 (b) (ii) (C) of NDPS Act and they are convicted thereunder.
Announced in the open AJAY Digitally signed by AJAY GUPTA Location: Karkardooma Court court on 31.03.2018. GUPTA Date: 2018.03.31 16:40:50 +0530 (AJAY GUPTA) Addl. Sessions Judge02(East) Special Judge (NDPS) KKD COURTS, DELHI.
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