Delhi District Court
State vs 1. Raj Kumar Mehta S/O Late Sh. Balwant ... on 26 April, 2011
IN THE COURT OF MS. SANTOSH SNEHI MANN
SPECIAL JUDGE, NDPS (CENTRAL)
TIS HAZARI COURTS, DELHI
SC No. : 105/2006
FIR No. : 43/2003
U/s : 21/23/24/29 NDPS Act &
Section 14 Foreigner's Act
PS : Sarai Rohilla Railway Station
State V/s 1. Raj Kumar Mehta S/o Late Sh. Balwant Rai
R/o House No. 70, Harsh Vihar, Delhi.
2. Pradeep Kumar Chawla @ Chhottu
S/o Late Sh. Ratan Prakash Chawla
R/o K-271, Swami Daya Nand Colony,
Near Kishan Ganj, Delhi.
3. Harjinder Singh @ Jinda S/o Sh. Mohan Singh
R/o Village Bagardia, PS Garendra,
District Amritsar, Punjab.
4. Inder Singh S/o Late Sh. Kartar Singh
House No. 174, Goodwill Apartments,
Sector-13, Rohini, Delhi.
5. Mohd. Hanif S/o Late Mohd. Tajddin
R/o New Abadi, Bhabra Firozpur Road,
Lahore, Pakistan.
6. Harley S/o Mr. Ezike
R/o Village Atta, District Nnenasa,
PS Afor Atta Polke, Nigeria.
Date of filing of Charge Sheet : 18.12.2003
Date of taking up matter for the first time : 30.11.2009
Date of conclusion of arguments : 30.03.2011
Date of Judgment : 26.04.2011
State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 1 of 104
JUDGMENT:
All the six accused persons have been charge-sheeted under Section 21, 23, 24 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as the "NDPS Act") on the allegations that on or before 20.09.2003 they entered into a criminal conspiracy to illegally and unlawfully possess "Heroin", and being a party to this conspiracy, accused Pradeep Kumar Chawla was found in possession of 02 Kilograms contraband, accused Harjinder Singh was found in possession of 01 Kilogram contraband, accused Inder Singh was found in possession of 01 Kilogram contraband, accused Mohd. Hanif got recovered 02 Kilograms & 50 Grams contraband and accused Harley was found in possession of 300 Grams contraband.
2. It is the case of the prosecution that before 20.09.2003 ACP Ravi Shanker of Inter State Crime Cell had the information that one Raj Kumar Mehta, a charge-sheeted accused in case FIR No. 866/2000, PS Hauz Khas was smuggling "Smack" from Pakistan and had been supplying to other countries through his local and foreigner conduits. This information was developed and on 20.09.2003 a specific information was received by ACP Ravi Shanker that Raj Kumar Mehta would come at Sarai Rohilla Railway Station at about 01.00 pm to deliver "Smack" to an associate. Pursuant to this information, on the direction of ACP Ravi Shanker, a raiding party was constituted by Inspector Pankaj Sood to conduct raid. A public person Dinesh Sharma and Inspector Jagjit Singh, SHO PS Sarai Rohilla Railway Station were State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 2 of 104 joined in the raid.
3. Around 01.10 pm accused Raj Kumar Mehta (hereinafter referred as A-1) was seen coming on the platform No. 1 of Sarai Rohilla Railway Station, who stood near an under construction toilet. In the meantime accused Pradeep Kumar Chawla (hereinafter referred as A-2) came and shook hands with A-1. A-1 exchanged the green bag in his possession with the packet in possession of A-2. Both the accused were apprehended. The green bag recovered from A-2 was found containing two packets of Smack, each weighing about 01 kilogram and the packet recovered from A-1 was found containing 23,000 US Dollars. Samples were drawn from the recovered contraband. The samples, the packets of contraband and foreign currency were sealed and seized. Sealed pulandas were handed over to Inspector Jagjit Singh. FIR was registered on the basis of rukka prepared by Inspector Pankaj Sood and further investigation was carried out by SI Ramesh Sharma.
4. During investigation, A-1 disclosed names of his associates and gave leads to the police about their whereabouts. Police party reached at the disclosed spot and one public witness Vikas was joined in the raid. On the pointing out of A-1, accused Harjinder Singh (hereinafter referred as A-3) and accused Inder Singh (hereinafter referred as A-4) were apprehended around 06.00 pm from near Gol Dak Ghar. A-4 was standing near an Indica Car No. HR-38-FT-9720 and 01 Kilogram Smack was State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 3 of 104 recovered from a sweat box in his possession. A-3 was sitting at the driver seat of the Indica car and 01 Kilogram Smack kept in a sweat box was recovered at his instance from the dikki (boot) of the Indica Car. Samples were drawn, the contraband was seized and sealed.
5. Thereafter on the basis of disclosure and leads provided by A-1, accused Mohd. Hanif (hereinafter referred as A-5), a Pakistani National, was apprehended at about 09.00 pm from outside the House No. H-3/45 in Sector-11, Rohini and at his instance, 2 kg and 50 grams Smack kept in a tube and concealed under ground near Japani Park was recovered. Samples were drawn, the Smack and the samples were sealed and seized. A public witness Anand Prakash was joined in the proceedings.
6. On the basis of disclosure and leads provided by A-3, accused Harley (hereinafter referred as A-6) was apprehended on 22.09.2003 at about 1.00 pm from Munirka T-Point at Nelson Mandela Road, near JNU and 300 Grams Smack was recovered from his possession. Contraband was seized, and after drawing the samples, they were sealed in separate parcels. A public witness Darshan Lal was joined in the proceedings. One mobile phone was recovered in the personal search of A-6.
7. During investigation, two mobile phones were recovered at the instance of A-2 from his house and two mobiles and four SIM cards were recovered at the instance of A-3 from his house. Call details record (CDR) of the recovered phones and SIM cards were State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 4 of 104 collected from the service providers, which showed connectivity between the accused persons. The samples of contraband were sent to the FSL for analysis and as per FSL result, all the samples were found to contain Diacetylmorphine, (Heroine).
8. Copies were supplied to the accused. Prima Facie offence punishable under Section 29 read with 21 of the NDPS Act was found to be made out jointly against all the accused persons by my Ld. Predecessor besides, separate offence under Section 21 NDPS Act against them for being in possession of contraband. Charges were framed accordingly by the Ld. Predecessor to which all the six accused persons pleaded not guilty and claimed trial. Prosecution was then directed to lead evidence.
9. Prosecution has examined 17 witnesses in all:
PW-1 W-Ct. Sunita was working as duty officer at PS Sarai Rohilla on 20.09.2003 who registered FIR No. 43/2003 under Section 21/29/61/85 of NDPS Act (Copy Ex. PW-1/A) on the basis of rukka prepared by SI Pankaj Sood.
PW-3 HC Virender was working as MHC(M) at PS on 20.09.2003, 21.09.2003 and 22.09.2003, who had received pulandas of the case property for depositing in Malkhana on these dates with respect to which he made entries at Serial No. 346, 347 and 348 of Register No. 19 (photocopy Ex. PW-3/A). According to this witness on 30.09.2003 he had sent six sealed pulandas, alongwith sample seals and FSL forms for depositing at FSL Malviya Nagar through HC Suresh Chand (PW-6) vide RC No. 48/21 (Copy Ex. PW-3/B).State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 5 of 104
PW-6 HC Suresh Chand was involved in the investigation with PW-16 SI Ramesh Sharma (IO) on 25.09.2003 and had deposited 06 sealed sample pulandas alongwith FSL Forms and sample seals at FSL Malviya Nagar on 30.09.2003 vide RC No. 41/21/03.
PW-7 HC Davinder Singh was posted at Crime Branch Chanakya Puri on 05.11.2003, who on the direction of PW-16 SI Ramesh Sharma had sent a request to service providers - Idea, Air Tel, Hutch, Air Tel Mohali and Reliance for call-detail records of different mobile numbers. On 06.11.2003 he downloaded the print- outs of the call details received from the service providers and handed over them to PW-16. Printout of call detail record of mobile No. 9811660987 is Ex. P-1 (09 leaves), printout of call detail record of mobile No. 9815578175 is Ex. P-2 (14 leaves), printout of call detail record of mobile No. 9815836701 is Ex. P-3 (03 leaves), printout of call detail record of mobile No. 9815765399 is Ex. P-4 (24 leaves), printout of call detail record of mobile No. 9818357749 is Ex. P-5 (09 leaves), printout of call detail record of mobile No. 9891010713 is Ex. P-6 (11 leaves) and printout of call detail record of mobile No. 9811391178 is Ex. P-7 (03 leaves).
PW-8 HC Gulab Chand was working as duty officer at Crime Branch Chanakya Puri, New Delhi on 20.09.2003 and produced the record of DD No. 12 (Copy Ex. PW-8/A) and DD No. 13 (Copy Ex. PW-8/B), both recorded by Inspector Pankaj Sood at 11.50 am and 12.10 pm respectively.
PW-10 Ct. Swaranjeet Singh produced the record from State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 6 of 104 Central Jail, Patiala, Punjab about accused Inder Singh, according to which that he was lodged in Central Jail, Patiala on 14.06.2000 under Section 21/42 NDPS Act, on being convicted by the ASJ, Fateh Guru Sahib on 24.09.2001 and was sentenced to 12 years of RI with fine of Rs. 1,00,000/-. As per the record produced by this witness accused Inder Singh was released on parole for six weeks on 30.08.2003 and was required to surrender on 12.10.2003, but had not surrendered. Ex. PW-10/A is the letter of Superintendent Central Jail, Patiala to this effect.
PW-11 Prem Pratap had entered into a hire-agreement (Ex. PW-11/A) with accused Harjinder Singh (A-3) with respect to a white colour Indica Car No. HR-38-FT-9720 which was seized during investigation vide memo Ex. PW-6/C. PW-17 Dr. Madhulika Sharma is the Astt. Director FSL Delhi, who examined contents of six parcels S-1, S-3, S-5, S-9, S-7 and S-11 and gave the report Ex. P-X according to which the substance in all the parcels was found to contain Diacetylmorphine.
PW-2 Dinesh Kumar, PW-4 Vikas Kumar, PW-9 Anand Prakash and PW-13 Darshan Lal, PW-5 Inspector Jagjit Singh, PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma are the witnesses of search, recovery and seizure. PW-2 Dinesh Kumar, PW-4 Vikas Kumar, PW-9 Anand Prakash and PW-13 Darshan Lal are the independent public witnesses. PW-5 Inspector Jagjit Singh was the SHO PS Sarai Rohilla Railway Station and PW-16 SI Ramesh Sharma is State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 7 of 104 also the investigating officer (IO).
10. All the incriminating evidence on record against the accused was put to them. They were examined and their statements were recorded under Section 313 Cr. P. C without oath. All the accused persons denied the incriminating evidence against them.
11. Accused Raj Kumar Mehta claimed that he was not present at Sarai Rohilla Railway Station on the alleged date and time. He claimed that he was picked up by Inspector Pankaj Sood and his team from his House No. 70, Harsh Vihar, New Delhi and was implicated in this case. He claimed that his signatures were taken on blank papers under threat. He examined DW-1 Harjit Singh Sidhu and DW-4 Sandhya Mehta as defence witnesses.
12. According to DW-1, he is in the business of Gas Stations, Restaurants and Convenient Stores in USA. They order furniture for business purpose in US from India through Raj Kumar Mehta (A-1) and other persons. He stated that on 12.07.2003 while he was in India for business purpose he gave 23000 US Dollars to accused Raj Kumar Mehta for exporting furniture.
13. DW-4 Sandhya Mehta is the daughter in law of accused Raj Kumar Mehta and according to her on 20.09.2003 at about 11.00 or 11.30 am, 5-6 police persons came to their house including PW-12 and PW-16 for making enquiry and searched the entire house including almirah of her mother in law from where they took 23000 US Dollars, which were kept by her father-in-law (A-1) for exporting some furniture. According to her, Raj Kumar Mehta State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 8 of 104 was taken away the police and was never released thereafter.
14. Accused Pradeep Kumar Chawla claimed that he was not present at Sarai Rohilla Railway Station on the alleged date and time. He stated that he was forcibly picked up from his house by Inspector Pankaj Sood and was taken to Interstate Cell, Crime Branch, Chanakya Puri, New Delhi where he was kept illegally and was forced to sign on many blank papers. He examined DW-5 Krishna Rani, his mother, in his defence.
15. According to DW-5 on 20.09.2003 at about 10.15 am 4-5 persons, claiming to be policemen, came to their house and took away Pradeep Kumar Chawla on the pretext of making some enquiry.
16. Accused Harjinder Singh claimed that he was apprehended from Rajender Nagar where he alongwith his nephew were waiting at the Hospital of Dr. Singhal at 57/11, Old Rajender Nagar, New Delhi. He claimed that he was taken to police station Chanakya Puri where he was made to sign on some blank papers by the police. He examined DW-6 Avtar Singh in his defence.
17. DW-6 stated that he had come to Delhi from Punjab to go abroad and was staying with accused Harjinder Singh at his house in Sector-15, Rohini. According to him, he had accompanied accused Harjinder Singh to the Hospital of Dr. Singhal at Rajender Nagar, New Delhi on 20.09.2003 at about 05.00 pm to take medicine. He stated that accused Harjinder Singh was suffering from kidney problem and was not in a position to drive the vehicle and thus he drove him to the hospital. He stated State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 9 of 104 that stopped the vehicle outside the hospital when 8-10 persons came and took them in a vehicle to the police station. He stated that while he was released by the police on the next day, accused was detained.
18. Accused Inder Singh claimed that he was running a PCO Booth at Dhayan Singh Road, Karol Bagh, New Delhi and there is a police booth nearby. He claimed that policemen used to come to make calls without making payments and when he objected to it, they got angry and implicated him in this case. He claimed that he was lifted by the police from the red light of Shastri Nagar near Metro Station when he was going to the PCO Booth from his house at Rohini on his scooter No. DL-9SK-9857. He claimed that he was taken to the police station Chanakya Puri and nothing was recovered from his possession. He claimed that he was made to write "NO" on a plain paper and was never asked to write or reply to any notice by the police. Accused Inder Singh has examined DW-2 Ashok Kumar and DW-3 Vijender Singh in his defence.
19. According to DW-2 he was running a shop at Shastri Nagar Red Light Chowk and on 20.09.2003 at about 03.00-03.30 pm accused Inder Singh, who was coming on his scooter, was stopped at red light by 4-5 persons, who took him to a vehicle parked on the other side of the road and left. He stated that one of the persons carried away the scooter.
20. DW-3 claimed to be nephew of accused Inder Singh. He stated that on 20.09.2003 when his maternal uncle Inder Singh did State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 10 of 104 not return home, his wife called him to enquire. According to him on the next day i.e. 21.09.2003 wife of the accused Inder Singh called him at about 12.30 - 01.00 pm and told him that Inder Singh had been arrested by the Crime Branch. The witness stated that at about 03.30 - 04.00 pm he went to meet Inder Singh at the back side of Chanakya Puri. He further stated that he tried to give an application in the Office of Crime Branch on 24.09.2003 for return of two wheeler scooter, but it was not taken and the scooter was handed over to him without taking his signatures.
21. Accused Mohd. Hanif claimed that on 16.09.2003 he was going on road at about 05.00 pm and had stopped for drinking water at a Piyau when some police officials came in white clothes and took him to Chanakya Puri where he was detained and was implicated in this case. However he did not wish to lead evidence in defence.
22. Accused Harley denied that he was apprehended by the police at T-Point of Nelson Mandela Marg and Munirka Marg on the identification and pointing out of co-accused Harjinder Singh and claimed that he was apprehended from his house on 21.09.2003 at 05.00 pm. But, he did not wish to lead evidence in defence.
23. I have heard Mr. Rajiv Mohan, Ld. Addl. PP for the State, Mr. S. S. Dass, defence counsel for accused Raj Kumar Mehta & Pradeep Kumar Chawla, Mr. D. P. Chopra, defence counsel for accused Harjinder singh & Inder Singh, Mr. K. L. Juneja, defence counsel for accused Mohd. Hanif and Mr. Sunil Mehta, defence counsel for the accused Harley. I have carefully State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 11 of 104 perused the record.
24. PW-2 Dinesh Singh deposed that on 20.09.2003 at about 12.35 pm he was standing at bus stand of Liberty Cinema when Inspector Pankaj Sood (PW-12) came and requested him to join the police party. Witness stated that he was taken to railway station Sarai Rohilla by the police, where two persons were stopped by the police and checked. According to this witness dollars were recovered from the possession of one of those persons and two packets containing white powder was recovered from the possession of other. Witness identified the accused Raj Kumar Mehta (A-1) and Pradeep Kumar Chawla (A-2) as those two persons. It has come in his statement that packets were recovered from the possession of accused A-2, and US Dollars were recovered from the possession of accused A-1. However, this witness was cross-examined by Ld. Addl. PP as he had remained silent on certain facts in his examination-in-chief, which will be discussed in the later part of the judgment in the context.
25. PW-4 Vikas Kumar testified that on 20.09.2003 when he was coming out from Birla Mandir, SI Ramesh Sharma (PW-16) and Inspector Pankaj Sood (PW-12) met him and told him to join the raiding party with the police. Witness stated that he accompanied them in the vehicle Tata Van 407 to the Church gate where A-1 and A-2 were present in the police custody. According to this witness, A-1 and A-2 pointed at a white colour Indica Car parked at Church gate bearing Haryana registration number. Witness further stated that one person was sitting inside car, whom State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 12 of 104 he identified as accused Harjinder Singh (A-3) and another sikh person standing there as accused Inder Singh (A-4). It has come in the statement of this witness that A-4 was having a pink colour polythene in his hand, containing a packet of brown powdery substance in a cardboard box. It has further in his statement that at the instance of A-3, a white polythene containing a packet of brown substance in cardboard box, was recovered.
26. PW-9 Anand Prakash testified that on 20.09.2003 at about 8.00 pm he went to Japani Park at Rohini and at about 9.00
- 9.30 pm when he came out, he saw crowd on the opposite road. Witness stated that some police persons present there asked him to join the proceedings and he agreed. According to this witness he alongwith the police party went near a tree at some distance from where a piece of rubber tube was dug out, which was found containing 6-7 small packets of white brown powdery substance. Witness identified the accused Mohd. Hanif (hereinafter referred as A-5) as the person to whom police had offered to call a Magistrate or a Gazetted officer before recovery.
27. PW-13 Darshan Lal testified that on 22.09.2003 he was standing at the bus stand of Munirka when 6-7 persons came in a Government vehicle, and informed the public persons standing at the bus stand that a "Negro" was involved in selling Smack in the nearby area. Witness stated that he agreed to join and accompanied them. According to this witness, at about 1.00 pm one "Negro" standing on the road was apprehended and a packet containing light brown powdery substance was recovered from his State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 13 of 104 possession. Witness identified the accused Harley (A-6) as the "Negro" who was apprehended by the police in his presence.
28. PW-15 ACP Ravi Shankar testified that on 20.09.2003 while he was posted in Inter State Crime Branch, Chankyapuri at about 11.50 am he received the information through telephone that one Raj Kumar Mehta (A-1) would come to Sarai Rohilla Railway Station to supply Smack to his associate at about 1.00 pm. He deputed Inspector Pankaj Sood (PW-12) to verify and take legal action, who lodged DD No. 12 (Ex. PW-8/A) in this regard and left the office at about 12.10 pm. According to this witness at about 2.30 pm he received information from PW-12 through SI Ramesh Sharma (PW-16) that accused A-1 and accused A-2 have been apprehended with heroine. Witness stated that after receiving the information he reached at the spot alongwith (PW-16) where he met PW-12 and other police officials alongwith accused Raj Kumar Mehta (A-1), accused Pradeep Kumar Chawla (A-2) and a public witness Dinesh Kumar (PW-2). Witness stated that he verified the facts and attested the seizure memo. He assigned further investigation to SI Ramesh Sharma and left the spot. According to this witness he was informed by PW-12 about subsequent arrests of A-3, A-4 & A-5 and recovery of Smack from their respective possession. He further stated that on 21.09.2003 he received the information under Section 57 of NDPS Act regarding accused A-1, A-2, A-3, A-4 and A-5 vide diary No. 726 (Copy Ex. PW-15/C) in his office vide Ex. PW-15/A, which he forwarded to the DCP Crime.
State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 14 of 104Witness further stated that on 22.09.2003 he received information from PW-12 about the arrest of A-6 and recovery of Smack from him. Witness stated that accused Harley A-6 was produced before him and he also received information under Section 57 NDPS Act regarding accused Harely (A-6) vide diary No. 731 dated 22.09.2003 (Copy Ex. PW-15/D) vide Ex. PW-15/B which was forwarded to DCP.
29. PW-12 Inspector Pankaj Sood testified that on 20.09.2003 he was posted as Inspector at Inter State Crime Branch, Chanakyapuri, New Delhi, when PW-15 called him in his office and told him about an information that accused Raj Kumar Mehta (A-1) would come to railway station Sarai Rohilla at about 1.00 pm. Witness stated that he recorded this information vide DD No. 12 (copy Ex. PW-8/A) and gave a copy to ACP Ravi Shankar (PW-15). According to this witness, he constituted a raiding party and about 12.10 pm proceeded to the spot in a official vehicle, a tempo truck bearing No. DL-1CF-4283. He stated that at about 12.40 pm the police party reached near Liberty cinema where on his request one Dinesh Kumar (PW-2) agreed to join. PW-12 deposed that, SHO police station Sarai Rohilla (PW-5) also joined him. According to PW-12 at about 1.00 pm members of the raiding party took the position in and around the entry gate of Sarai Rohilla railway station and at about 1.10 pm accused Raj Kumar Mehta (A-1) entered the gate. He alerted the members of the raiding party. Witness further stated that accused A-1 was carrying a green colour bag in his hand and took left turn from gate No. 1, State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 15 of 104 crossed the bridge and stood under a tree in front of an under construction toilet in wait of somebody. According to PW-12, accused Pradeep Kumar Chawla (A-2) came and went up to A-1. Both A-1 and A-2 shook hands. Witness stated that A-2 was carrying a packet in his hand, which he handed over to A-1 and A-1 gave his bag to A-2. Witness stated that he alongwith members of the raiding party surrounded both the accused and apprehended them. He informed both the accused about information with the police and gave them separate notice under Section 50 of the NDPS (carbon copy of notice to A-2 is Ex. PW-2/C and carbon copy of notice to A-1 is Ex. PW-2/D). Witness stated that both the accused refused to call any Gazetted Officer or a Magistrate at the spot. Green colour bag was found containing two packets of heroine wrapped in cloth which had blue colour stamps on them. Each packet weighed 1 kg and they were marked Serial No. 1 and Serial No. 2. Two samples of 05 Grams each were taken from each packet. Pulandas of sample drawn from packet serial no. 1 were marked S-1 & S-2 and pulandas of sample drawn from packet serial no. 2 were marked S-3 and S-4. Witness stated that he filled form FSL at the spot and affixed his seal of 'PS' on all six pulandas, the impression of which he also affixed on form FSL. Witness further stated that green colour bag was also sealed by him in a pulanda with his seal. The six pulandas of the contraband, the green colour bag alongwith form FSL was seized vide memo Ex. PW-2/B, which he handed over to Inspector Jagjit Singh (PW-5) SHO PS Sarai Rohilla alongwith State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 16 of 104 form FSL.
30. PW-12 further testified that he checked the white polythene packet in possession of accused Raj Kumar Mehta (A-1), which was found containing 23,000 US Dollars. He converted them into a cloth pulanda, sealed them with the seal of 'PS' and seized vide memo Ex. PW-2/A. He further stated that he handed over this pulanda to PW-5 at the spot, who thereafter left the spot taking along all the pulandas.
31. PW-12 further testified that at about 3.00 pm ACP Ravi Shankar (PW-15) reached at the spot with SI Ramesh Sharma (PW-16) and made enquiry from both the accused and satisfied himself. It has come in the statement of this witness that he handed over his seal to public witness Dinesh Kumar and prepared the rukka Ex. PW-12/A, which he handed over to SI Harbir Singh (PW-14) at about 3.45 pm for registration of FIR at PS railway station Sarai Rohilla Station and that further investigation was assigned to SI Ramesh Sharma (PW-16).
32. PW-12 has deposed further on the line of PW-16 SI Ramesh Sharma about recovery of contraband from A-3, A-4, A-5 and A-6, seizure and arrest. Details of these facts will be taken note of in the later part of the judgment, while dealing with the deposition of PW-16.
33. PW-16 SI Ramesh Sharma testified that on 20.09.2003 at about 2.30 pm he received telephonic information from PW-12 that dollars and Heroine have been recovered from accused Raj Kumar Mehta (A-1) and Pradeep Kumar Chawla State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 17 of 104 (A-2) at Sarai Rohilla Railway Station. He communicated this information to PW-15 ACP Ravi Shankar and reached at the spot with him at about 3.00 pm. According to this witness PW-12 was present at the spot alongwith other police officials, SHO PS Sarai Rohilla railway station (PW-5) and a public witness Dinesh Kumar (PW-2) besides accused A-1 and A-2. He deposed that FIR was registered at PS Sarai Rohilla Railway Station on the basis of rukka prepared by PW-12 and thereafter investigation was assigned to him (PW-16). According to this witness he recorded the statement of PW-2 Dinesh Kumar and relieved him from the spot. He stated that PW-5 left the spot with the case property and he prepared the site plan Ex. PW-16/A at the instance of PW-12 and mentioned the FIR Number on the documents already prepared.
34. According to PW-16 he interrogated A-1 and A-2, arrested them vide memos Ex. PW-12/C and Ex. PW-12/B and conducted their personal search vide memos Ex. PW-12/G and Ex. PW-12/F respectively. He stated that A-1 disclosed (memo Ex. PW-12/H) that one Md. Hanif (A-5), a Pakistani national and his associate in supplying Smack, was present at the house of his brother in Sector-11, Rohini. A-1 also disclosed that his two other associates in supply of Smack namely Harjinder Singh (A-3) and Inder Singh (A-4) would come near Goldakhana to supply Smack to a Negro at about 6.00 pm. Witness further stated that he deposited personal search articles of A-1 and A-2 in the Malkhana State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 18 of 104 of PS Sarai Rohilla police station and PW-12 communicated to ACP (PW-15) about disclosure made by A-1.
35. According to PW-16 the police party proceeded to Goldakhana in pursuance to disclosure made by A-1 and on the way, one Vikas Kumar (PW-4) a public person, was joined near Birla Mandir. Witness stated that one Indica Car bearing No. HR- 38-FT-9720 was spotted in front of Church of the gate opposite Goldakhana and accused A-1 identified the person sitting on the driver seat of the car as Harjinder Singh (A-3) and a sikh person standing adjacent to the car, carrying a pink colour polythene packet in his hand as Inder Singh (A-4). Witness stated that A-3 and A-4 were apprehended and they were informed about disclosure made by accused A-1 about them. Witness stated that a written notice under section 50 of NDPS Act was served on accused Inder Singh (A-4) (Carbon copy Ex. PW-4/A) and he was informed about his legal right to give search in the presence of a Gazetted Officer or the Magistrate, which he refused (Ex. PW-4/B). According to PW-16, the polythene carried by A-4 in his hand was checked and it was found containing a sweet box (cardboard box used for packing sweets). The box contained a cloth packet, which was found containing white colour powdery substance, 01 Kilogram in weight. Two samples of 05 Grams each were drawn and sealed in separate pulandas with the seal of 'RK'. Remaining heroine was kept as it is in the box in the polythene and was sealed separately with the seal of 'RK'. Pulanda of the State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 19 of 104 recovered contraband was given Serial No. 4, and the sample pulandas were marked as S-5 and S-6. Witness stated that he filled the form FSL at the spot on which he affixed his seal of 'RK'. All the pulandas alongwith form FSL were seized vide memo Ex. PW-4/E.
36. According to PW-16, Notice under section 50 of NDPS Act (Carbon copy Ex. PW-4/C) was given to accused Harjinder Singh (A-3) and he was informed about his legal right to give his search in the presence of Gazetted Officer or the Magistrate, which he refused (Ex. PW-4/D). According to this witness, A-3 took out a white colour polythene from the dikki (boot) of the car, which contained a sweet box containing 01 Kilogram of powdery substance identified as Smack, kept in a cloth packet. Two samples of 05 Grams each were drawn. The samples and the recovered contraband were sealed separately in pulandas with the seal of 'RK'. The sealed pulanda of recovered heroine was given Serial No. 5 and the samples were marked as S-7 and S-8. He filled Form FSL on which he affixed the same seal and seized the parcels alongwith Form FSL vide memo Ex. PW-4/F. Witness stated that he handed over the seal to public witness PW-4. Indica Car was seized vide Ex. PW-4/G. A-3 and A-4 were interrogated and arrested vide memos Ex. PW-12/K & Ex. PW-12/J.
37. According to PW-16 he kept the custody of accused A-1 with him and sent accused A-2, A-3 and A-4 to the office through other staff. He handed over the sealed pulandas and accompanying documents to PW-12 and they went to police station State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 20 of 104 Sarai Rohilla where he deposited the personal search articles of the accused in the Malkhana and PW-12 handed over the pulandas of the case property and accompanying documents to SHO (PW-5) who affixed his seal of 'JS' on all the pulandas. Witness stated that PW-12 communicated the recovery and arrest of the accused to ACP (PW-15).
38. PW-16 further deposed that at about 9.00 pm A-1 in custody led them to the house of his brother, in Sector-11, Rohini, where accused Mohd. Hanif (A-5) was found standing outside the house on the road, who was apprehended on the pointing out of the accused A-1. Witness stated that A-5 was told about the information given to the police by A-1. According to PW-16 accused A-5 disclosed that he had kept 02 Kilograms of Heroine in a tube buried on the North side of the Japanese park gate and led them to the disclosed place where one public witness Anand Prakash (PW-9) was joined. Accused A-5 led the police party to the spot to the disclosed spot and pointed at a place. According to the witness a Notice under Section 50 of the NDPS Act was given to accused A-5 (carbon copy Ex. PW-12/N) and he was informed about his legal right about search, but he refused to avail this offer by writing in Urdu (Ex. PW-16/B). According to PW-16, accused Mohd. Hanif dug the ground about 01 feet and took out a tube in which a packet wrapped in yellow colour tape weighing 02 Kilograms and 50 Grams was found kept. The packet was opened by cutting tape with the help of blade, and it was found containing the light brown granular powdery substance. 02 samples of 05 State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 21 of 104 Grams each were taken from this packet, samples and the recovered contraband were converted into separate pulandas and sealed with the seal of 'KK' which was taken by PW-16 from PW-14 SI Harbir Singh. The sealed pulandas of the recovered contraband was given Serial No. 6 and sample pulandas were marked S-9 and S-10. Witness stated that he filled FSL form at the spot and seized contraband vide memo Ex. PW-9/A. Accused A-5 was interrogated and arrested vide Ex. PW-12/O and his personal search was conducted vide Ex. PW-12/P. Witness stated that he handed over the sealed pulandas of the case property and accompanying documents to PW-12 and then they went to the police station Sarai Rohilla where pulandas of the case property were handed over by PW-12 to SHO (PW-5) whereas he himself deposited the personal search articles in the Malkhana. Witness stated that PW-12 informed ACP (PW-15) about the recovery of Smack from A-5.
39. According to PW-16 on 21.09.2003 accused Pradeep Kumar Chawla (A-2) led the police party to his house in Dayanand Colony and got recovered two mobile phones, one of Reliance and other of Hutch connection, which were seized vide Ex. PW-12/Q. According to PW-16, on the same day i.e. 21.09.2003 accused Harjinder Singh (A-3) also got recovered two mobile phones and four SIM cards from his house at Sector-15, Rohini which were seized vide memo Ex. PW-12/R, which were used by him for communicating with his other associates. A-3 also pointed out a room in village Munirka (memo Ex. PW-14/G) disclosing that it was State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 22 of 104 occupied by his associate Harley (A-6). According to PW-16 on 22.09.2003, efforts were made to search accused Harley (A-6) through A-3 and on local inquiry it was revealed that accused A-6 usually roams about in the area of JNU. Witness stated that one public person Darshan Lal (PW-13) was joined in the proceedings and accused Harley (A-6) was apprehended from the 'T' point of Nelson Mandela Marg at Munirka mark at the pointing out of the accused A-3. Accused A-6 was told about the information with the police, a written Notice under Section 50 of the NDPS Act (Ex. PW-12/S) was prepared and he was also told about his legal right to get himself searched in the presence of the Gazetted Officer or a Magistrate. A-6 declined the offer and also refused to keep the copy of the notice and resisted his search. According to PW-16 one plastic panni containing light brown granular powdery substance was recovered from the left pocket of the half pant worn by A-6. The substance weighed 300 Grams, out of which two samples of the 05 Grams each were taken. The samples and the recovered Smack were sealed separately in pulandas with the seal of 'SP'. Sealed pulanda of the recovered contraband was given Serial No. 7 and sample pulandas were marked S-11 and S-12. PW-16 filled the form FSL and affixed the seal of 'SP' on them. All the pulandas were seized vide memo Ex. PW-12/I, which A-6 refused to sign and seal after use was handed over to PW-13.
40. According to PW-16 accused A-6 was arrested (Ex. PW-12/T) and in his personal search (Ex. PW-12/U) one State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 23 of 104 mobile phone and a telephone diary were recovered. They returned to the police station Sarai Rohilla, where he deposited the personal search articles of the accused in the Malkhana and pulandas of the case property alongwith Form FSL were handed over to SHO (PW-5) by Inspector Pankaj Sood (PW-12). Witness stated that PW-12 informed the ACP (PW-15) about the arrest of A-6 and recovery of Smack from him, who was also produced before PW-15 who made inquiries and satisfied himself. Witness stated that PW-12 gave information under section 57 of NDPS Act to ACP (PW-15) on 21.09.2003 pertaining to accused Raj Kumar Mehta (A-1), Pradeep Kumar Chawla (A-2), Inder Singh (A-3), Harjinder Singh (A-4), Mohd. Hanif (A-5) and with respect to accused Harley (A-6) on 22.09.2003.
41. According to PW-16 on 23.09.2003 accused A-1 got recovered his passport bearing no. P 139039 from his house at Harsh Vihar, Delhi, which was seized vide memo Ex. PW-14/H and A-1 pointed out the house of his associate Sukkha Singh at New Abadi, Zeera Gate, Zirapur, Firozpur vide Ex. PW-14/I. A-2 pointed out Gurudwara at Wazidpur, Firozpur Moja road vide Ex. PW-14/J where he used to meet one Major Singh for taking the Smack. Accused Harjinder Singh also led the police party to Chandigarh and Mohali but his other associates could not be apprehended. According to PW-16, Prem Pratap (PW-11), owner of Indica Car handed over to him an agreement (Ex. PW-11/A) between him and accused Harjinder Singh (A-3) about the Indica Car which was State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 24 of 104 taken into possession vide Ex. PW-6/C.
42. According to PW-16, samples alongwith FSL Forms were sent to FSL on 30.09.2003 through HC Suresh Chand (PW-6) and the result was received vide Ex. P-X. It has come in the deposition of PW-16 that on 05.11.2003 he sent letter of ACP (copies Ex. PW-16/1 to Ex. PW-16/5) to service providers of mobile phones recovered from accused persons and on 06.11.2003 call details of those mobile phones were received by downloading from computer (CDR - Ex. P-1 to Ex. P-6). Witness stated that the call detail record revealed that accused Harjinder Singh (A-3) and accused Harley (A-6) were in communication with each other, accused Pradeep Kumar Chawla (A-2) was in communication with accused Harjinder Singh (A-3), mobile phone (9811391178) received from accused Pradeep Kumar Chawla (A-2) was used by accused Mohd. Hanif (A-5) and accused Raj Kumar Mehta (A-1) for making calls at Pakistan and to one Sukha Singh and Major Sahab.
43. PW-16 testified that accused Inder Singh (A-4) is already a convict from the court of Mr. G. S Gill, Special Court, Fatehgarh Sahib and was on parole at the time of incident.
44. PW-14 SI Harbir Singh has deposed on the lines of PW-12 Inspector Pankaj Sood and PW-16 SI Ramesh Sharma about search, recovery and seizure of contraband from the possession and at the instance of the accused persons.
45. PW-5 Inspector Jagjit Singh was the SHO of PS Sarai State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 25 of 104 Rohilla Railway station and has deposed on the lines of PW-12 Inspector Pankaj Sood that on 20.09.2003 at about 12.55 pm he joined PW-12 and went to Sarai Rohilla police station with him. He has deposed on the lines of PW-12 about the circumstances in which a green colour bag containing two packets of heroine, weighing 01 Kilogram each and a packet containing of 23,000 US dollars were recovered respectively from the possession of accused Pradeep Kumar Chawla (A-2) and Raj Kumar Mehta (A-1). He has also deposed on the lines of PW-12 that sealed pulandas of the seized contraband alongwith Form FSL were handed over to him by PW-12 at the spot on which he affixed his seal of 'JS' and deposited them in the Malkhana. According to this witness on 20.09.2003 at about 8.00 pm and at about 12 O'clock in the mid-night and thereafter on 22.09.2003 he received sealed pulandas of the case property containing contraband alongwith FSL Forms which he deposited in the Malkhana after affixing his seal of 'JS' on them. It is noteworthy that PW-5 in his examination in chief dated 05.07.2005 had deposed that subsequent pulandas of the case property were handed over to him at the police station by SI Ramesh Kumar (PW-16), which was inconsistent with the deposition of other witnesses i.e. PW-12 and PW-16. Therefore, PW-5 was recalled for cross-examination on the application of Addl. PP under Section 311 Cr. P. C and he admitted in his cross- examination dated 04.06.2010 that on 20.09.2003 at 8.00 pm and at about 12 O'clock in the night and thereafter on 22.09.2003, pulandas of the case property were handed over to him by PW-12 State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 26 of 104 Inspector Pankaj Sood and not by PW-16 SI Ramesh Sharma. Witness explained that in his examination-in-chief recorded in the Court earlier he had stated that sealed parcels were handed over to him by SI Ramesh Sharma (PW-16) due to inadvertent confusion as Inspector Pankaj Sood (PW-12) and SI Ramesh Sharma (PW-16) had come together to the police station and SI Ramesh Sharma (PW-16) is also the IO of the case.
46. Prosecution witnesses identified the foreign currency (23000 US Dollars) recovered from A-1 as Ex. P-1/1 to Ex. P-1/230; contraband in the two packets recovered from A-2 as Ex. P-2, Ex. P-3 and the samples drawn from the contraband as Ex. P-7 to Ex. P-10; the green bag containing packets of contraband as Ex. P-4; the contraband in the packet recovered from A-4 as Ex. P-14 and the samples drawn from the contraband as Ex. P-15 & Ex. P-16; the contraband in the packet recovered from A-3 as Ex. P-20 and the samples drawn from the contraband as Ex. P-21 & Ex. P-22; the Indica Car HR-38-FT-9720 recovered from the possession of A-3 as Ex. P-23; the contraband in the packet recovered at the instance of A-5 as Ex. PW-9/1 and the samples drawn from the contraband as Ex. P-24 & S-10 and the contraband in the polythene pouch recovered from A-6 as Ex. P-26 and the samples drawn from the contraband as Ex. P-25 & S-12. Prosecution witnesses also identified the two mobile phones recovered at the instance of A-2 as Ex. P-28 & Ex. P-29; two mobile phones recovered at the instance of A-3 as Ex. P-30 & Ex. P-31 and 04 SIM Cards recovered at the instance of A-3 as State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 27 of 104 Ex. P-32 to Ex. P-35.
47. It was submitted by Ld. Addl. PP for the State that a raiding party was constituted by PW-12 Inspector Pankaj Sood on the instructions of PW-15 ACP Ravi Shankar, who had received specific information that accused Raj Kumar Mehta (A-1) would come to supply Smack to one of his associate on 20.09.2003 at about 1.00 pm at Sarai Rohilla railway station. It was submitted that the information was duly recorded vide DD No. 12 (Ex. PW-8/A) and the police party apprehended the accused Raj Kumar Mehta (A-1) and Pradeep Kumar Chawla (A-2) at the spot and recovered a bag containing 02 Kg of contraband from the possession of A-2 which was handed over to him by A-1 in exchange of a packet containing 23000 US Dollars, which was recovered from the possession of A-1. It was submitted that the area SHO (PW-5) was joined in the investigation besides an independent public person (PW-2) before search, recovery and seizure and that all the witnesses have deposed on the lines of the prosecution story and have corroborated each other on material facts.
48. It was submitted by Ld. Addl. PP that accused Harjinder (A-3) and accused Inder Singh (A-4) were arrested from Gol Market area on the pointing out and on the identification of A-1 and 01 Kilogram of contraband was recovered from each of them in the presence of an independent public witness Vikas Kumar (PW-4). It was further submitted that at the instance of A-1, State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 28 of 104 accused Mohd. Hanif (A-5), a Pakistani National, was apprehended on the same day at about 09.00 pm from Sector-11, Rohini, Delhi and more than 02 Kilograms contraband was recovered from near Japanese Park at his instance in the presence of an independent public witness Anand Parkash (PW-9). It was submitted by Ld. Addl. PP for the State that accused Harley (A-6), is a Nigerian citizen, who was apprehended on 22.09.2003 from T-Point of Nelson Mandela Marg and Munirka Marg at the instance and on the pointing of accused Harjinder Singh (A-3) and 300 Grams contraband was recovered from his possession in the presence of an independent witness, Darshan Lal (PW-13).
49. Ld. Addl. PP submitted that all the six accused persons were in possession of "Heroine" being party to a criminal conspiracy to commit the offence under the NDPS Act, call- detailed record (Ex. P-1 to Ex. P-7) of the phones & SIM cards recovered from the accused A-2, A-3 & A-6 shows that they were connected with each other and thus they are liable to be held guilty and convicted for the offence under Section 29 of the NDPS Act, as well as, under Section 21 of the NDPS Act.
50. Ld. Defence counsel on behalf of accused Raj Kumar Mehta (A-1) and Pradeep Kumar Chawla (A-2) contended that search was made in violation of the statutory procedure provided in Section 42 & 50 of the NDPS Act; PW-2 Dinesh Kumar is a stock witness and discrepancies in his testimony go to the root of the case; there are discrepancies in the records which indicate tampering of the case property and link evidence; there is delay in State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 29 of 104 sending the samples; there are discrepancies in the testimony of recovery witnesses on material facts and there is non-compliance of Section 52, 55 & 57 of NDPS Act.
51. It was argued by the defence counsel on behalf of accused Harjinder Singh (A-3) and accused Inder Singh (A-4) that there is non-compliance of Section 42 & 50 of NDPS Act while making search; prosecution has failed to establish through concrete evidence that Indica Car No. HR-38-FT-9720 was in possession of A-3; prosecution story about the circumstances of arrest of A-3 falls flat as not only that A-3 does not know driving but is incapable of driving a vehicle due to medical reasons. None of the mobile phones and SIM card allegedly recovered from the possession of A-3 are in his name; defence witnesses have testified that A-3 & A-4 were lifted by the police in their presence; link evidence about deposition of case property and sending of samples to FSL is missing; presence of the public witness PW-4 Vikas Kumar at the spot is doubtful and his deposition suffers from material discrepancies; no public person was joined as a witness at the spot despite the fact that place of alleged recovery from the accused persons was thickly populated; there are material discrepancies and inconsistencies in the statements of witnesses which make the prosecution story highly doubtful.
52. It was argued on behalf of accused Mohd. Hanif (A-5) that presence of public witness Anand Prakash (PW-9) is highly doubtful at the spot; there are material inconsistencies in the statements of witnesses about search, recovery and seizure; link State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 30 of 104 evidence about the deposition of the case property and sending the sample pulandas to the FSL has not been proved and lastly that absence of entries of the log book of the vehicle makes the prosecution story doubtful.
53. It was argued on behalf of the accused Harley (A-6) that there is non compliance of Section 50 and 42 of NDPS Act; public witness PW-13 Darshan Lal turned hostile besides material contradictions in his deposition; there is no evidence to prove conspiracy between A-6 and accused Harjinder Singh (A-3) and lastly that A-6 cannot come under the cover of charge of conspiracy framed in the Court as his arrest was later in time of conspiracy alleged in the charge.
54. In order to appreciate the defence plea on behalf of A-1 and A-2 that search and seizure was made in violation of Section 42 NDPS Act, it is necessary to examine the evidence produced by the prosecution about the procedure followed for search, seizure and arrest. Testimony of material witnesses in this regard is required to be recapitulated.
55. According to PW-15 ACP Ravi Shanker, on 20.09.2003 at about 11.50 am while he was posted in Inter-State Crime Branch, Chanakya Puri, New Delhi he received a specific information through telephone that one Raj Kumar Mehta (A-1) would come to deliver Smack to his associate at about 01.00 pm at Sarai Rohilla Railway Station. On his instructions Inspector Pankaj Sood (PW-12) recorded DD No. 12 (Ex. PW-8/A) in this regard, copy of which was given to PW-15 and constituted a raiding party State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 31 of 104 including himself, PW-14 SI Harbir Singh and others, which left the police station at about 12.10 pm in a government vehicle and departure entry in this regard was made by PW-12 Inspector Pankaj Sood vide DD No. 13 (Ex. PW-8/B). According to PW-12 and PW-14, one public person Dinesh Kumar (PW-2) joined the police party on request near Liberty Cinema. Before proceeding to Sarai Rohilla Railway Station, PW-12 went to the police station Sarai Rohilla Railway Station, informed Inspector Jagjit Singh (PW-5), SHO PS Sarai Rohilla Railway Station, about the circumstances, who then also joined the police party. PW-5 has corroborated PW-12 on this aspect.
56. According to deposition of PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-5 Inspector Jagjit Singh, at about 01.10 pm A-1 entered the gate of Sarai Rohilla Railway Station holding a green colour bag in his hand and stood in fornt of an under-construction toilet. After sometime A-2 came, who was carrying a packet in his hand. A-1 and A-2 shook hands and they exchanged the bag and the packet. It was at that time that A-1 and A-2 were apprehended. PW-12 Inspector Pankaj Sood identified A-1, as he had investigated case FIR No. 866/2000, PS Hauz Khas, Delhi, in which case A-1 was charge-sheeted alongwith 08 Pakistani Nationals. PW-12 Inspector Pankaj Sood served written Notices under Section 50 of the NDPS Act to both the accused (carbon copy of the Notice to A-2 is Ex. PW-2/C and to A-1 is Ex. PW-2/D). According to these witnesses, both the accused State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 32 of 104 refused to call any Magistrate or Gazetted Officer at the spot for their search. The green colour bag recovered from the possession of A-2, which was handed over to him by A-1, was found containing two packets of Smack each weighing 01 Kilogram, which were sealed and seized after drawing samples. According to the above mentioned witnesses, white colour polythene packet recovered from the possession of A-1, which was given to him by A-2 was found containing 23000 US Dollars, which were also sealed and seized.
57. According to PW-15 ACP Ravi Shanker he reached at the spot with PW-16 SI Ramesh Sharma on receiving information about apprehension of A-1 and A-2 and recovery of contraband from their possession. He has been corroborated on this fact by PW-12, PW-14 and PW-16.
58. According to PW-12 Inspector Pankaj Sood, he prepared rukka (Ex. PW-12/A) on the basis of which FIR (Ex. PW-1/A) was registered at police station Sarai Rohilla Railway Station and further investigation was assigned to PW-16 SI Ramesh Sharma. He has been corroborated by PW-16 SI Ramesh Sharma, who prepared the Site Plan (Ex. PW-16/A) at the instance of PW-12, arrested A-1 and A-2 and interrogated them.
59. It was argued by Ld. Defence counsel for A-1 and A-2 that though PW-15 ACP Ravi Shanker in his cross-examination stated that he had information about involvement of A-1 in drug trafficking 6-7 months prior to his arrest, which was developed by State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 33 of 104 the staff, but no material has been placed on record in support of this. It was further argued that neither the information was reduced into writing in compliance of Section 42 (1) of NDPS Act by PW-15 ACP Ravi Shanker on 20.09.2003 nor it was sent by him to his immediate senior officer within the stipulated period of 72 hours in compliance of Section 42 (2) of NDPS Act. Hence, contended that the search, recovery and seizure is illegal and entire prosecution case comes under shadow. In support of the arguments Ld. Defence counsel relied on "Sarju @ Ramu V/s State of U. P., AIR 2009 SC 3214"; "UOI V/s Bal Mukund, 2009 Cri. L. J. 2407"; "DRI & Another V/s Mohd. Nisar Holia, 2008(2) SCC 370"; "Beckodan Abdul Rahiman V/s State of Kerala, 2002 Cri. L. J. 2529" and "State of Karnataka V/s Dondusa Namasa Baddi, IV (2010) CCR 35 (SC).
60. Ld. Addl. PP argued in rebuttal that PW-15 ACP Ravi Shanker is a Gazetted Officer of Delhi Police empowered under Section 41(2) of the NDPS Act to authorize PW-12 Inspector Pankaj Sood to search, seize and arrest when he received information about involvement of Raj Kumar Mehta in drug trafficking. It was submitted that PW-15 had noted the information in writing and PW-12 Inspector Pankaj Sood who acted pursuant to authorization by PW-15 ACP Ravi Shanker, had all powers of the empowered officer under Section 42 of the NDPS Act. It was further submitted that Section 42 of NDPS Act speaks about powers of an empowered officer regarding search, seizure and arrest without warrant or authorization in a building, conveyance or State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 34 of 104 enclosed place, whereas Section 43 of NDPS Act speaks about exercise of such power by the empowered officer at a public place. Since the recovery, seizure and arrest involving A-1 and A-2 was made from a public place, the proceedings were conducted under Section 43 of NDPS Act and not under Section 42 of NDPS Act. Relying on the decision of Constitution Bench of the Hon'ble Supreme Court of India in "Karnail Singh V/s State of Haryana, (2009) 8 Supreme Court Cases 539", Ld. Addl. PP submitted that guidelines laid down by Hon'ble Supreme Court of India with regard to Section 41, 42 and 43 of NDPS Act were duly complied with by the police with respect to search, recovery, seizure and arrest.
61. The Constitution Bench of Hon'ble Supreme Court of India in Karnail Singh's case (Supra) considered the scope and applicability of Section 42 of NDPS Act in the matter of conducting search, seizure and arrest without warrant and authorization in view of the conflicting opinions of the Apex Court on that issue in the earlier decisions "Abdul Rashid Ibrahim Mansuri V/s State of Gujarat (2000) 2 SCC 513" and "Sajan Abraham V/s State of Kerala (2001) 6 SCC 692". The relevant paras of the judgment in the context are reproduced as under :
Para 20 :
Sub-Section (1) of Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of Second Class specially empowered by the State Government may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Sub-Section (2) of Section 41 refers to issue of authorization for similar purposes by State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 35 of 104 the officers of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc. (Emphasis supplied) Para 21 :
Sub-Section (1) of Section 42 of the NDPS Act lays down that the empowered officer, if has a prior information given by any person, should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recoding his reasons of belief. The proviso to sub-section (1) of Section 42 lays down that if the empowered officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. (Emphasis supplied) Para 26 :
The material difference between the provisions of Sections 42 and 43 of the NDPS Act is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article, etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.
(Emphasis supplied)
62. While appreciating the difference in scope and application of Sections 41, 42 & 43 of NDPS Act, the Apex Court in Karnail Singh's case (Supra) relied on an earlier decision of the State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 36 of 104 Constitution Bench in State of Punjab V/s Baldev Singh (1999) 6 Supreme Court Cases 172 and gave detailed guidelines about scope, application and compliance of Section 42 of NDPS Act in the warranted situations, as under:
Para 35 :
In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to
(d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer.
But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 37 of 104 may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.
63. Though procedure given in Sections 41 & 43 of NDPS Act was also discussed broadly in Baldev Singh (Supra) and Karnail Singh (Supra) by the Apex Court, but the focus of discussion and consideration was mainly the scope, application and compliance of Section 42 of NDPS Act. Difference in the scope and applicability of Sections 41 & 42 of NDPS Act was distinctly considered by the Apex Court in M. Prabhulal V/s Assistant Director, Directorate of Revenue Intelligence (2003) State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 38 of 104 8 Supreme Court Cases 449. The relevant paras of the judgment in the context are reproduced as under :
Para 14 :
Section 41(1) which empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under Section 41(2) only a Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorize an officer subordinate to him to do so but that subordinate officer has to be superior in rank to a peon, a sepoy or a constable. Sub-Section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under Sub-Section (1) is addressed, (ii) the officer who authorized the arrest or search under Sub- Section (2) of Section 41, and (iii) the officer who is so authorized under Sub-Section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including the power of seizure. Section 42 provides for procedure and power of entry, search, seizure and arrest without warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break upon any door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in Sub- Section (1) of Section 42. In case of an emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorization, in terms provided in the proviso to Sub-Section (1) of Section 42. Sub- Section (2) of Section 42 is a mandatory provision. In terms of this provision a copy of information taken down in writing under Sub-Section (1) or ground recorded for the belief under the proviso thereto, is required to be sent by the officer to his immediate superior official. It is clear from Section 41(2) that the Central Government or the State Government, as the State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 39 of 104 case may be, can only empower an officer of a gazetted rank who can either himself act or authorize his subordinate on the terms stated in the Section. Under Sub-Section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under Sub-Section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in Sub- Section (2) of Section 42. It is clear from the language of Sub-Section (2) of Section 42 that it applies to an officer contemplated by Sub-Section (1) thereof and not to a Gazetted Officer contemplated by Sub-Section (2) of Section 41, when such a Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in a public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section
43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been diligently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decisions in State of Punjab V/s Balbir Singh, Abdul Rashid Ibrahim Mansuri V/s State of Gujarat and Beckodan Abdul Rahiman V/s State of Kerala on the aspects under consideration are neither relevant nor applicable.
(Emphasis supplied) Para 15 :
In view of our conclusion that Section 42(2) is not applicable when search, seizure etc. is conducted State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 40 of 104 by a Gazetted Officer under Sections 41(2) and (3), the further contention of Mr. Jain that an attempt was made by the respondent to fill up the lacuna to show compliance with Section 42(2) of the NDPS Act as a result of observations made in the order granting bail to the appellants as noticed hereinbefore becomes inconsequential and, therefore, it is not necessary to examine it.
(Emphasis supplied)
64. Ratio of decision in M. Prabhulal (Supra) regarding difference in scope and applicability of Section 41 and 42 of NDPS Act was followed by the Apex Court in Union of India V/s Satrohan, (2008) 8 Supreme Court Cases 313.
65. Thus, it is clear that Section 41, 42 & 43 of NDPS Act as prescribed in the statute and as interpreted by the Constitution Benches of the Apex Court in Baldev Singh (Supra) and Karnail Singh (Supra) are distinct in their scope and application depending upon the category of the police officer taking action and place of incident. It is clear that when on the basis of information, search is made by an empowered officer under Section 41(2) by himself or by his subordinate officer on his authorization, requirement of sending information to the superior officer, as contemplated in Section 42(2) of NDPS Act is not attracted. It is also clear that on the basis of information, when search, seizure and arrest is made at a public place, it would be conducted under Section 43 of the NDPS Act, which neither mandates writing of the information nor sending of this information to a superior officer.
66. In the present case, issue is not only about compliance or non-compliance of Section 42 of NDPS Act, it is also about State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 41 of 104 applicability of Section 42 of NDPS Act in the given situation. While the defence counsel for A-1 & A-2 has vehemently argued that Section 42 of NDPS Act is applicable in the facts and circumstances of this case for the purposes of search, recovery, seizure and arrest, Ld. Addl. PP for State contended that it was not attracted in this case as the search, recovery, seizure and arrest was made at a public place, pursuant to an information received by an empowered officer under Section 41 (2) of the NDPS Act.
67. As per the prosecution case and the evidence on record, accused A-1 and A-2 were apprehended at a railway platform and recovery of Heroin was made at the spot by the police party.
Distinction between applicability of Section 42 & 43 of NDPS Act was duly considered by the Constitution Bench of Apex Court in Karnail Singh's case (Supra), wherein it was held that while Section 42 is applicable in case of building etc., Section 43 is applicable when the arrest or seizure is to be made in a public place. On the same aspect, Hon'ble High Court of Delhi in "Ramesh Kumar Rajput @ Khan V/s State (NCT of Delhi), 2009 Drugs Cases (Narcotics) 289", held that since the search and seizure took place at an airport, which is a public place, provision of Section 43 of NDPS Act was applicable and, therefore, question of non-compliance, if any, of the provisions of Section 42 of NDPS Act is wholly irrelevant.
68. Therefore, in the present case, since as per evidence produced by the prosecution, the search, recovery, seizure and arrest took place at the railway station, which is a public place, State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 42 of 104 provision of Section 42 of NDPS Act is wholly irrelevant.
69. In addition vide Notification No. F.10(76)/85 Fin.(G) all the Gazetted Officers of the Police Department in Delhi are empowered officers under Section 41(2) of the NDPS Act. Thus, PW-15 ACP Ravi Shanker being a Gazetted Officer of Delhi Police is an empowered officer under Section 41(2) of the NDPS Act and there is no dispute raised by the defence that PW-15 is not a Gazetted Officer, or is not an officer of Police Department in Delhi. Testimony of PW-15 is specific on the fact that he instructed PW-12, a Sub-Inspector of Delhi Police to take action on the basis of specific information about involvement and movement of A-1 on 20.09.2003. PW-15 was within his power to authorize a subordinate officer to take action. PW-12 a subordinate officer of PW-15 and superior in rank to a Peon, Sepoy or a Constable, was competent to be authorised by PW-15 to act on authorization. Since PW-15 was acting under section 41(2) NDPS Act, he was not required under the statute to communicate the information in writing to his superior officer.
70. However, though section 41(2) of NDPS Act speaks about the need of taking the information in writing by the empowered Gazetted Officer. In the cross-examination of PW-15, it has come that he had written that information on a rough note. Testimony of PW-15 & PW-12 is specific that as soon as PW-15 authorized PW-12 to take action, a DD No. 12 (Ex. PW-8/A) was written by PW-12, a copy of which was given by PW-12 to PW-15. It was argued in defence that since PW-15 had the information State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 43 of 104 about involvement of A-1 in drug trafficking around 5-6 months before 20.09.2003, he was bound to record that information also in writing on the very first day when said information was received by him. I am not convinced with the argument because PW-15 has explained in the cross-examination that he had deployed several sources to develop the information and to gather information regarding activities of A-1 from time to time. From the deposition of PW-15, it is clear that information was developed over a period, and was acted upon only on 20.09.2003 when it was crystallized about presence of A-1 at a specified place for a specific purpose. There is no requirement under the statute that each and every detail of the earlier information is required to be noted down and written while developing specific and concrete information on the basis of sources. (Reliance is placed on the decision of Hon'ble High Court of Delhi dated 28.02.2011 in Criminal Appeal No. 501/1999 titled "Mohd. Anwar @ Annu V/s State").
71. According to PW-15 he had written the information on a piece of paper, but the paper has not been placed on record. PW-15 is a senior police gazetted officer, whose credibility has been rated high even in the statute. There is no form prescribed under the statute for recording this information. It is a matter of record that before taking any action, DD No. 12 (Ex. PW-8/A) was recorded about the information by PW-12 on the instructions of PW-15. Recording of this DD entry prior to the police taking any action, is a sufficient compliance of the statutory requirement of Section 41(2) of the NDPS Act.
State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 44 of 10472. Further, since PW-12 acted on authorization by his superior officer (PW-15) under Section 41(2) of NDPS Act and not on the basis of any information received by him on his own under Section 42 of NDPS Act, his action was not within the purview of Section 42 of NDPS Act so as to warrant writing of information by him and sending of that information to the senior police officer. Moreover, PW-12 himself is an empowered officer to act under Section 42 of the NDPS Act by virtue of Government Notification No. F.10(76)/85-Fin.(G) and it is a settled legal position that statutory safeguards of the procedure under Section 42 of NDPS Act would not be applicable when search, seizure and arrest is made at a public place, for which procedure under Section 43 of NDPS Act would be applicable. Hence, in this case, since search, recovery, seizure and arrest of A-1 and A-2 was made at the railway platform, a public place, therefore, on this account also writing of the information and sending it to the senior officer was not required.
73. The various decisions referred by Ld. Defence counsel are about situations where Section 42 NDPS Act was applicable and thus ratio of those decisions about effect of non-compliance of Section 42 NDPS Act are not applicable in the facts and circumstances of this case.
74. Ld. Defence counsel for the accused A-1 and A-2 contended that since search was not conducted in compliance of section 50 of NDPS Act, alleged recovery was bad in law and cannot be used against the accused persons. Ld. Defence counsel State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 45 of 104 relied on Ushaben Rameshwar Pandit Vs. State of Gujarat 2004(3) RCR (Cri.) 553; Praveen Singh @ Kalia Vs. State of NCT of Delhi 2011[1] JCC [NAR.] 1 and a recent decision of the Constitution Bench of the Apex Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat (Criminal Appeal No. 943 of 2005) 2010 VAD (CRI) (SC) 573. On the other hand it was contended by Ld. Addl. PP for the State that section 50 of NDPS Act is not attracted in this case as recovery was made from a bag and not from the person/body of the accused persons.
75. The applicability and scope of Section 50 of NDPS Act was considered by the Constitution Bench of the Apex Court in State of Punjab V/s Balbir Singh, AIR 1999 SC 2378 and it was held that section 50 of NDPS Act would come into play only in the case of search of a person as distinguished from search of any premises etc. Applicability of section 50 of NDPS Act came into consideration before Apex Court subsequently also in number of cases and repeatedly it has been held that section 50 of NDPS Act would apply only in the case of search of a person and not with respect to search of the bag, attachi etc (Reference to "Kalema Tumba Vs. State of Maharashtra & Another 2003, Drugs Cases (Narcotics) 608"; Gurbax Singh Vs. State of Haryana, 2001 Drugs Cases (Narcotics) 8; State of Rajasthan Vs. Daulat Ram, 2005 Drugs Cases (Narcotics) 422 and State of Himachal Pradesh Vs. Pawan Kumar, 2005 Drugs Cases (Narcotics) 212). This settled legal position about applicability of section 50 of NDPS State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 46 of 104 Act has been followed by Hon'ble High Court of Delhi in Francis O Akahie Vs. NCB 2010(1) Drugs Cases (Narcotics) 77.
76. The issue under reference before the Constitution Bench in Vijaysinh Chandubha's case (supra) was confined to the scope and width of the expression "if the person to be searched so requires" as figuring in sub-section (1) of Section 50 of NDPS Act and it was specifically observed that the applicability of section 50 of NDPS Act was not within the scope of the referral order and so the same was not even looked into. Therefore, the legal position about the applicability of Section 50 of NDPS Act remained untouched and would prevail as held by the earlier decisions of the Constitution Bench on applicability of Section 50 of NDPS Act in Baldev Singh's case (Supra), which has been followed subsequently in various decisions by Apex Court as well as High Court of Delhi.
77. As per the prosecution case and testimony of the witnesses on record and the evidence, two packets of contraband were recovered from a green bag in possession of accused Pradeep Kumar Chawla (A-2), which was handed over to him by accused Raj Kumar Mehta (A-1). Therefore, Section 50 NDPS Act is not attracted for the purpose of search. Nevertheless, as abundant precaution, written notices were served on both the accused before their search. In view of the settled legal position about applicability and scope of Section 50 of NDPS Act, none of the judgments referred by the Ld. Defence Counsel are relevant as they speak about mode of compliance and effect of non-
State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 47 of 104compliance of Section 50 of NDPS Act, in the cases where it is applicable.
78. PW-5 Inspector Jagjit Singh, SHO PS Sarai Rohilla Railway Station, PW-13 Inspector Pankaj Sood and PW-14 SI Harbir Singh have deposed consistently that accused Raj Kumar Mehta (A-1) and Pradeep Kumar Chawla (A-2) were apprehended at the Sarai Rohilla Railway Station at about 1.00 pm. Their testimony is consistent on the fact that two packets of contraband were recovered from the green colour bag in possession of A-2, which was handed over to him by A-1 and 23000 US Dollars were recovered from a packet in possession of A-1, which was handed over to him by A-1. Public witness Dinesh Kumar (PW-2) has corroborated the police witnesses about recovery.
79. It was vehemently argued by Ld. Defence counsel that PW-2 Dinesh Kumar is a stock witness of Delhi Police as there is no explanation about his presence near Liberty Cinema; he was one of the witness in another case FIR No. 77/2007, under Section 121-A, 120-B IPC, Section 25 Arms Act, Section 17, 18, 20, 38 & 39 of Unlawful Activities (Prevention) Act, PS Special Cell, Lodhi Colony where PW-12 was also a Seizing Officer; there are discrepancies in his testimony, which go to the root of the case; PW-2 was declared a hostile witness as he was examined at length by Ld. Addl. PP for the State. Ld. Defence counsel has referred Ghulam Mohd. V/s State, 1996 JCC 533 DEL; Babu Das V/s State of M. P., 2003 (9) SCC 86; Prem Chand (Panniwala) V/s State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 48 of 104 Union of India, 1981 (68) AIR 613 SC; Tarsem Kumar V/s Delhi Administration, 1994 (81) AIR 2858 SC and Gurbachan Singh V/s State of Punjab, 1957 (44) AIR 623 SC, in support of his argument.
80. As deposed by the police witnesses PW-12 Inspector Pankaj Sood and PW-14 SI Harbir Singh, on 20.09.2008 they were members of a raiding party, which had left the Office in an official vehicle at about 12.10 pm for Sarai Rohilla Railway Station and on the way when they reached at Liberty Cinema at about 12.45 pm they requested three-four passers-by to join the raiding party and one Dinesh Kumar (PW-2) agreed and joined them. PW-2 has deposed on the same lines in the Court.
81. Doubt about presence of PW-2 at the spot has been raised on the ground that he is a resident of Mangol Puri and there is no explanation for his presence at Liberty Cinema. Despite the fact that PW-2 was subjected to lengthy cross-examination, nothing was asked from him in his cross-examination about the reason of his presence at the spot. Since witness was not given opportunity to explain, his presence at the spot cannot be disbelieved merely for the reason that he was residing at a distinct place from Liberty Cinema, where he joined the police party. Delhi is a Metropolitan City and people travel long distances for work and personal reasons. Just because PW-2 was a resident of Mangol Puri, he was not prohibited from visiting other parts of the city. It has specifically come in the testimony of PW-2 that he was standing at the bus stop when he was asked to join by the police. The bus stop State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 49 of 104 is a public place which is visited by people in their day-to-day routine. Therefore, testimony of this witness cannot be discarded merely on the ground that he was a resident of another area, situated at a distance from the spot.
82. It was forcefully argued by the defence counsel that PW-2 is a stock witness, who is used in routine by the police as per its convenience and in this context reference has been made to case FIR No. 77/2007 under Section 121-A, 120-B IPC, Section 25 Arms Act, Section 17, 18, 20, 38 & 39 of Unlawful Activities (Prevention) Act, PS Special Cell, Lodhi Colony. Photocopy of the list of witnesses in that case has been filed which shows name of Inspector Pankaj Sood as a witness at Serial No. 1 and Dinesh Sharma S/o Mala Ram Sharma R/o E-177, Mangol Puri, Delhi as a witness at Serial No. 8. There is no dispute about responsibility of the Court to shun testimony of the stock witnesses. There is no dispute with respect to principle of fair trial in criminal trial because consequences are penal which affect life and liberty of a person. But it is also the duty of the Court that credibility of a witness should be determined on sound and logical reasons and not merely on suggestive circumstances.
83. It is a matter of record that PW-2 Dinesh Kumar was not cross-examined on the above aspect when he deposed in the Court. It is also a matter of record that he was not confronted with the fact that he is becoming witness on the asking of PW-12 in different criminal cases. One may argue that the present case pertains to the year 2003, whereas the other case FIR State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 50 of 104 No. 77/2007; PS Special Cell, Lodhi Colony was registered in the year 2007 and so there was no occasion for the defence to confront PW-2 Dinesh Kumar with this fact, who was cross- examined in this case in the year 2004. But nothing stopped or prevented the accused to recall PW-2 Dinesh Kumar for cross- examination so as to confront him and question him about his alleged liaison and alleged connivance with the police, especially PW-12 Inspector Pankaj Sood. Similarly, nothing has been put to PW-12 in his cross-examination on these lines other than a fishing suggestion that PW-2 Dinesh Kumar is a good friend of SI Ramesh Sharma. Neither PW-12 has been confronted with the list of witnesses of case FIR No. 77/2007, wherein he and PW-2 are shown to have been the prosecution witnesses. There is no reason why PW-12 could not be recalled by the defence as and when alleged liaison between PW-2 and PW-12 was exposed. Since PW-2 and PW-12 were not cross-examined and confronted on this aspect, they had no occasion to explain the circumstances alleged against them. Therefore, it will not be fair to discredit the testimony of PW-2 as argued by the defence. {Reliance is placed on State of UP V/s Nahar Singh, 1998 (3) SCC 561, relied by Hon'ble High Court of Delhi in Criminal Appeal No. 80/2001 titled Bilal Ahmed V/s State decided on 13.01.2010}.
84. As regards contention of the defence that testimony of PW-2 cannot be looked into as he has been declared hostile and has been cross-examined by Ld. Addl. PP for State, it is a settled legal position that merely because a prosecution witness has been State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 51 of 104 cross-examined by the prosecutor on certain facts, his entire testimony cannot be thrown mechanically. It is a settled legal position that if the credit of a witness has not been completely shaken and considering the other material on record, if a part of testimony of such a witness is found to be creditworthy, it may be relied upon (Reliance is placed on T. Shanker Prasad V/s State of Andhra Pradesh, 2004 (1) JCC 200. It is also settled legal position that for certain purposes the statement of even a hostile witness can be believed. {Reliance is placed on Gagan Kanojia & Another V/s State of Punjab (2006) 13 SCC 516}.
85. Testimony of PW-2 is specific on the facts that on 20.09.2003 at about 12.35 pm while he was standing at bus stand at Liberty Cinema, Inspector Pankaj Sood approached him and on his asking he joined the police party and went to the Sarai Rohilla Railway Station. According to this witness, two persons were stopped and checked at the railway station and he identified A-1 and A-2 as those persons in the Court. It has come very specifically in his deposition that a green colour thaila containing two packets, each containing 01 Kilogram white powdery substance was recovered from A-2 and Dollars were recovered from A-1. This witness was cross-examined by Ld. Addl. PP for the State as he remained silent about PW-5 SHO PS Sarai Rohilla Railway Station joining the police party and arrival of PW-15 ACP at the spot besides procedural technicalities of Notice under Section 50 NDPS Act and seizure of contraband. These omissions in the testimony of a public witness are inconsequential because State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 52 of 104 they do not relate to the substratum of the case and fact of recovery. Testimony of PW-2 about his presence at the spot, presence of A-1 and A-2 at the spot, identity of A-1 and A-2 and recovery of contraband has remained unshaken and there is no reason to doubt his credibility.
86. As regards link evidence, it was contended by Ld. Defence counsel that as per the prosecution case, 05 FSL Forms were prepared qua 06 samples drawn from different alleged recoveries and according to FSL, Delhi the report was sent qua FSL No. 2003/C-2090 dated 05.12.2003 vide memo No. 772-R- DCP/ISC dated 30.09.2003. It was contended that as per this memo, only one sample was sent, whereas FSL received 06 parcels. It was argued that PW-17 Dr. Madhulika Sharma is silent with regard to facsimile of seals appended on various samples and in her cross-examination she stated that she received more than one letter, whereas there is no mention of any letter/FSL Form qua letter No. 772-776. It was contended that if the analysis report Ex. P-X is to be believed then FSL ought to have received only one FSL Form and one sample, thus discrepancy goes to the root of the matter. It was also contended that it is not known which sample of which accused was sent vide letter No. 772-R-DCP/ISC. It was argued that PW-17 Dr. Madhulika Sharma in her cross-examination admitted that the person deputed to receive the sample in the Laboratory generally gives acknowledgment regarding number of pulandas and documents, but she claimed to have no knowledge if they are bound to give condition of seal on the pulandas. It was State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 53 of 104 contended that there is doubt whether the FSL Forms were deposited in the Malkhana of PS Sarai Rohilla Railway Station as PW-3 HC Virender, who is the MHC(M) has not stated that FSL Forms were deposited with him; there is nothing in the testimony of PW-12 Inspector Pankaj Sood to show that he had handed over the FSL Forms to PW-5 Inspector Jagjit Singh and lastly that there is delay in sending the samples to FSL. Reliance is placed on Valsala V/s State of Kerala, 1994 Cri. L.J.1; Rajesh Jagdamba Awasthi V/s State of Goa, 2005(1) RCR (Cri.) 406 and Ritesh Chakravorty V/s State of MP 2006(3) JCC (Nar.) 150.
87. Relevant evidence to examine merit of the contentions raised by the Ld. Defence counsel about link evidence and possibility of tampering of samples are depositions of PW-5 Inspector Jagjit Singh, PW-12 Inspector Pankaj Sood, PW-16 SI Ramesh Sharma, PW-3 HC Virender, MHC(M), PW-6 HC Suresh Chand and PW-17 Dr. Madhulika Sharma besides documentary evidence i.e Malkhana Register entries (Ex. PW-3/A and Ex. PW-3/B collectively) and FSL Report dated 05.12.2003 Ex. P-X.
88. As per deposition of PW-12 Inspector Pankaj Sood, 02 samples of 05 Grams each were drawn from 02 packets of Heroin recovered from the green colour bag in possession of A-2. The packets were marked as Serial No. 1 and 2. Samples drawn from packet Serial No. 1 were marked as S-1 & S-2 and samples drawn from packet Serial No. 2 were marked as S-3 & S-4. The recovered packets and all the four samples were converted into separate State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 54 of 104 pulandas (06 in number) and they were sealed by PW-12 Inspector Pankaj Sood with his seal of "PS". He filed the Form FSL at the spot and formally seized pulandas of the case property vide Seizure Memo Ex. PW-2/B. According to PW-12 Inspector Pankaj Sood, he handed over all the 06 sealed pulanas alongwith Form FSL to PW-5 Inspector Jagjit Singh at the spot, who then affixed his seal of "JS" on all the pulandas. PW-12 Inspector Pankaj Sood has been corroborated on these facts by PW-5 Inspector Jagjit Singh, who then left the spot with the case property, FSL Forms and carbon copy of the seizure memo and deposited them in the Malkhana of police station. PW-3 HC Virender has corroborated PW-5 Inspector Jagjit Singh on the aspect of deposition of the case property and deposed that he made entry in this regard at Serial no. 346 in the Malkhana Register. He produced the record, photocopy of which is on record as Ex. PW-3/A.
89. Similarly, according to PW-16 SI Ramesh Sharma, samples were drawn from the contraband recovered from the possession of accused A-3, A-4, A-5 and A-6, at the spot, pulandas were sealed and FSL forms were filled, the details of which have already been taken note in the earlier part of the judgment while taking note of his deposition in detail. It has come specifically in the deposition of PW-16 SI Ramesh Sharma that after every recovery, he handed over the sealed pulandas alongwith accompanying documents to PW-12 Inspector Pankaj Sood, who then handed over them to PW-5 Inspector Jagjit Singh, SHO of PS Sarai Rohilla Railway Station. On this aspect he has State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 55 of 104 been corroborated by PW-12 Inspector Pankaj Sood and PW-5 Inspector Jagjit Singh, SHO PS Sarai Rohilla Railway Station. PW-3 HC Virender, MHC(M) has corroborated PW-5 Inspector Jagjit Singh on the fact that sealed pulandas of case property were deposited with him by PW-5 Inspector Jagjit Singh, with respect to which he made entries in Register No. 19 at Serial No. 346 dated 20.09.2003 and 348 dated 22.09.2003 (copy Ex. PW-3/A).
90. Entry No. 346 dated 20.09.2003 runs into number of pages as it includes the details about deposition of the pulandas of the case property recovered on 20.09.2003 from accused A-2, A-3, A-4 and A-5 till late in the night, besides deposition of 23000 US Dollars, personal search articles of the accused and the Indica Car No. HR-38FT-9720. Entry No. 346 (Ex. PW-3/A) clearly shows that the pulandas of the case property were deposited by Inspector Jagjit Singh (PW-5), SHO whereas personal search articles and car was deposited by SI Ramesh Sharma (PW-16). Similarly, Entry No. 348 dated 22.09.2003 (Ex. PW-3/B) of the Malkhana Register clearly shows that personal search of accused Harley was deposited by PW-16, the pulandas of the contraband recovered from the possession of the accused Harley (A-6) were deposited by (PW-5).
91. According to PW-3 HC Virender, MHC(M) and PW-6 HC Suresh Chand, on 30.09.2003 06 sealed pulandas alongwith FSL Forms were handed over by PW-3 to PW-6 for depositing at FSL vide RC No. 41/21 (photocopy Ex. PW-3/B) and the document clearly mentions that 06 sealed pulandas marked S-1, S-3, S-5, State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 56 of 104 S-7, S-9 and S-11 were handed over to PW-6 for depositing at FSL Malviya Nagar alongwith sample seals. There are corresponding endorsements in Malkhana Register in the entries at Serial No. 436 and 438 (Ex. PW-3/A) to the effect that 06 sample pulandas alongwith the sample seals were sent to FSL Malviya Nagar through PW-6 vide FSL No. 2003/C-2090. Ex. P-X is the report of Dr. Madhulika Sharma (PW-17) addressed to Deputy Commissioner of Police, Crime and Railway, Delhi in reference to his letter No. 772-R-DCP/ISC dated 30.09.2003 regarding 06 parcels. The report Ex. P-X also mentions on the top - FSL No. 2003/C-2090. As per Ex. P-X, 06 parcels received were marked S-1, S-3, S-5, S-7, S-9 and S-11, they were sealed and tallied with the specimen seal impression forwarded. The report also gave description of the seals on these parcels i.e. seals of "PS" & "JS" on parcel No. S-1, seals of "PS" & "JS" on parcel No. S-3, seals of "RK" & "JS" on parcel No. S-5, seals of "JS" & "RK" on parcel No. S-7, seals of "JS" & "KK" on parcel No. S-9 and seals of "SP" & "JS" on parcel No. S-11.
92. Testimony of PW-12 Inspector Pankaj Sood and PW-16 SI Ramesh Sharma is specific on the fact that 05 FSL Forms bearing the sample seals were prepared at different spots after seizure of the contraband. Testimony of PW-12 and PW-5 Inspector Jagjit Singh is clear on the fact that sealed sample parcels of the contraband alongwith accompanying documents i.e. FSL Forms and carboy copy of the seizure memo were handed over to PW-5. Testimony of PW-5 is specific on the fact that as and State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 57 of 104 when the sealed pulandas of the case property were handed over to him alongwith FSL Forms he affixed his seal of "JS" on them and then deposited them in the Malkhana. Nothing has come in the cross-examination of PW-12, PW-16 and PW-5 to create any doubt that FSL Forms were not filled at the spot and they were not handed over to PW-5 alongwith the pulandas of the case property. Nothing has come in the cross-examination of PW-5 to create any doubt that he did not handover the pulandas of the case property alongwith Form FSL to PW-3 MHC(M) for depositing in the Malkhana.
93. Seizure Memos Ex. PW-2/B, Ex. PW-4/E, Ex. PW-4/F, Ex. PW-9/A and Ex. PW-12/I specifically find mention that FSL Forms were filled at the spot. Though, PW-3 admitted in the cross- examination that number of pulandas, number of seals and number of FSL Forms deposited have not been specifically mentioned in the Malkhana Register entry Ex. PW-3/A, but there is other evidence on record on these facts, as already discussed, leaving no doubt about the number of pulandas deposited in malkhana at different times, the seals on the pulandas and the accompanying FSL Forms. More over, testimony of PW-3 HC Virender and PW-6 HC Suresh Chand is specific on the fact that 06 sealed pulandas were handed over to PW-6 by PW-3 on 30.09.2003 for depositing at FSL Malviya Nagar. Though, PW-3 has stated that 04 FSL forms were handed over to PW-6, whereas number of FSL forms filled were 05, it does not lead to any confusion in view of documents and deposition of other witnesses on record including PW-16, State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 58 of 104 PW-12 and PW-14, as already discussed above.
94. Ld. Defence counsel has tried to build a defence claiming discrepancies in the reference number regarding deposition of the sample pulandas, contending that it is not clear what were sent to FSL and how. There is no merit in the contention because the documents and the evidence on record very clearly establish link evidence about movement of sample pulandas from Malkhana to FSL Malviya Nagar. As per Malkhana Register entries (Ex. PW-3/A) the sample pulandas were sent to FSL Malviya Nagar on 30.09.2003 through PW-6 vide FSL No. 2003/C-2090. Though, Ld. Defence counsel has raised doubt about the date contending that Ex. PW-3/A bears overwriting on the date at point- A, but it is insignificant because the date of sending the samples to FSL has clearly come in the statements of PW-3, PW-6 and PW-16 as well as in FSL Result Ex. P-X, which clearly establishes that samples were sent and received at FSL, Malviya Nagar on 30.09.2003.
95. The evidence on record establishes beyond any doubt that the 06 sealed sample pulandas alongwith 05 FSL Forms bearing the seals impression were deposited at FSL Malviya Nagar on 30.09.2003 by PW-6 vide a single reference - FSL No. 2003/C- 2090. FSL result Ex. P-X, bears the reference No. - FSL No. 2003/ C-2090 on the top. Ex. P-X is in the form of a letter addressed to the Dy. Commissioner of Police, Crime & Rly. Delhi in reference to his letter No. 772-R-DCP/ISC dated 30.09.2003 regarding 06 parcels in connection with case FIR No. 43/2003, dated 20.09.2003 State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 59 of 104 under Section 21/23/29/61/85 NDPS Act, PS Sarai Rohilla Railway Station. It is thus clear that FSL No. 2003/C-2090 is the reference vide which sample pulandas were sent to FSL, Malviya Nagar through PW-6 and 772-R-DCP/ISC is the diary no. of a cover/request letter sent to FSL alongwith the sample pulandas. Though, it has come in the cross-examination PW-17 Dr. Madhulika Sharma that she had received more than one letter from No. 772-776, but documents on record I.e Malkhana entries and FSL result clearly establish that all 06 samples were sent to FSL vide one cover letter of DCP - 772-R-DCP/ISC. Discrepancy in the cross-examination of PW-17 Dr. Madhulika Sharma about number of cover letter is inconsequential in the light of documents on record.
96. The testimony of various witnesses of recovery and seizure i.e. PW-12, PW-16 and PW-14 is clear about the identification marks put on the samples drawn from the recoveries made from different accused at different places and different times. Besides oral deposition of these witnesses, the documentary evidence on record i.e. seizure memos Ex. PW-2/B, Ex. PW-4/E, Ex. PW-4/F, Ex. PW-9/A and Ex. PW-12/I clearly indicate the identification marks on the samples. Malkhana register entries clearly show the identification of samples sent and FSL Result Ex. P-X specifically indicates the identification marks and the seals on the sample pulandas received. Thus, it is clear as to which sample was drawn from the contraband recovered from which accused.
State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 60 of 10497. There is no merit in the contention of the Ld. Defence counsel that adverse inference should be drawn in the absence of any positive evidence about seals on the pulandas being intact. Had there been any discrepancy in the seals on the pulandas so as to create any doubt about seal, it was bound to come in the report Ex. P-X, which is very clear and specific on the fact that the seals on the 06 sample pulandas received for analysis tallied with the specimen seal impression forwarded. Moreover, the relevant witnesses PW-3, PW-6 and PW-16, who were personally involved in sending and depositing the sample pulandas at FSL have not been cross-examined on the aspect of reference Nos. - FSL No. 2003/C-2090 and letter No. 772-R-DCP/ISC. Their testimony has gone un-assailed on these facts and thus there is no discrepancy in the record as contended and the link evidence is complete.
98 Samples were drawn at the spot after recovery of contraband on 20.09.2003 and 22.09.2003. They were sent to FSL on 30.09.2003. The evidence on record as already discussed clearly establish that the sample pulandas were deposited at FSL on 30.09.2003 with the seals intact and thus there is absolutely no possibility of tampering of the pulandas till the time they were deposited in the Malkhana {Reference to State of Rajasthan V/s Daul @ Daulat Giri 2009(14) SCC 387 and Hardip Singh V/s State of Punjab 2008(8) SCC 557}.
99. The discrepancies pointed out by Ld. Defence counsel for A-1 & A-2 in the testimony of various witnesses are that while State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 61 of 104 PW-5 Inspector Jagjit Singh stated that the spot was full of passengers, PW-12 Inspector Pankaj Sood stated that the spot was not crowded; no finger prints from the packets allegedly recovered from accused Raj Kumar Mehta and Pradeep Kumar Chawla have been taken so as to connect them with the recoveries; IO does not know the owner of the premises of Sector-15, Rohini; log book of the vehicle used by the police party has not been produced to show the movement of the police; PW-12 Inspector Pankaj Sood failed to explain the position of members of the raiding party; PW-12 Inspector Pankaj Sood failed to explain as to why the independent witnesses were not jointed at the spot; PW-12 failed to answer as to how many papers were signed by PW-5 at the spot; PW-12 Inspector Pankaj Sood failed to tell how and from which direction accused Raj Kumar Mehta came to "In Gate" of the railway station; in the absence of field testing kit, prosecution failed to establish on what basis the contraband was identified as Smack; there is inconsistency in the testimony of PW-14 SI Harbir Singh about signature of PW-2 Dinesh Kumar on the Notice under Section 50 of the NDPS Act; PW-16 SI Ramesh Sharma failed to tell exactly as to how many disclosure statements were made by the accused A-1 and A-2; there are contradictions in the statements of PW-12 Inspector Pankaj Sood and PW-14 SI Harbir Singh about time when they reached at House No. H-3/45, Sector-11, Rohini; there is contradiction in the statement of PW-12 Inspector Pankaj Sood and other witnesses about the place where the writing work was State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 62 of 104 done; there is contradiction in the testimony of prosecution witnesses about the time when accused Raj Kumar Mehta was arrested.
100. The effect and consequence of discrepancy and inconsistency in the testimony of witnesses of search, recovery and seizure has been agitated time and again in Superior Courts. In "Dalel Singh V/s State of Haryana, 2009(2) Drugs Cases (Narcotics) 289" there was discrepancy in the testimony of the recovery witnesses about weight of recovered contraband. According to one witness weight of the recovered Charas was 4 ½ Kilograms, independent witness stated that it was only 1.5 Kilograms, whereas actual weight of the recovered Charas was 6.5 Kilograms. It was held by the Apex Court that since the documents on record clearly bring about the position that the weight of recovered Charas was 6.5 Kilograms, error committed by the witnesses is inconsequential as it can be attributed to failure of human memory.
101. On the same aspect in "State of Punjab V/s Lakhwinder Singh & Another, 2010(1) Drugs Cases (Narcotics) 192" where one witness stated that the seal was handed over to Lumberdar of the Village whereas the Investigating Officer stated that the seal was handed over to Sub-Inspector, the number of the private jeep in which the police officials were travelling was not given by the prosecution, the IO did not categorically state as to who was driving the jeep and who was the owner of the jeep, it was held that they were minor discrepancies which do not in any State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 63 of 104 manner affect the substratum of the case and the offence alleged against the accused and thus will not have any bearing on the merits of the prosecution story.
102. The discrepancies pointed by the Ld. Defence counsel in the statements of PW-5 Inspector Jagjit Singh and PW-12 Inspector Pankaj Sood qua the number of passengers present, inability of PW-12 to exactly explain the position of various Members of the raiding party, inability of PW-5 to answer as to how many papers were actually signed by him at the spot, inability of PW-12 to state as to how and from which side A-1 entered the railway station, inconsistency in the testimony of PW-14 SI Harbir Singh about signature of PW-2 Dinesh Kumar on the Notice under Section 50 of the NDPS Act, inability of PW-16 SI Ramesh Sharma to explain the number of disclosure statements of A-1 and A-2, discrepancy in the statements of PW-12 and PW-14 about the time they reached in Sector-11, Rohini, discrepancy in the statements of PW-12 another witness about place where the writing work was done and discrepancy in the testimony of witnesses about the time of arrest of accused A-1 are all too minor and inconsequential to have any bearing on the merits of the case. Rather they are bound to come due to passage of time and depending upon perception of individuals.
103. Defence plea that in the absence of finger prints on the bag containing the contraband and the packet containing US Dollars, their recovery from A-1 and A-2 is doubtful, such an inference would be too unrealistic in the facts and circumstances of State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 64 of 104 this case where there are eye witness of the recovery. There is no force in the contention that since IO did not know the owner of the house in Sector-15, Rohini, inference be drawn that nobody visited the spot, because ownership of the said house is neither an issue nor a relevant fact.
104. Non-production of log book of the government vehicle by itself cannot be made the basis to discard the other material on record about movement of the police party to the spot in the official vehicle, until and unless there are other circumstances to create doubt on the prosecution story. DD No. 13 (Ex. PW-8/B) is clear that the raiding party had gone in a government vehicle No. DL- 1CF-4283, Tempo Traveller driven by HC Rakesh Kumar and nothing has come on record to discredit this document.
105. Confirmation of the nature of contraband immediately after recovery at the spot through scientific analysis or chemical examination is not required under any law to be proved. As deposed by the witnesses, nature of the contraband was disclosed by the accused persons after recovery, which was confirmed by the FSL result later on during investigation. Just because IO did not have the field testing kit to scientifically identify the nature of recovered contraband at the spot, cannot lead to presumption that the recovered substance was not a contraband.
106. As regards contention of the defence about non- compliance of Section 55 of NDPS Act, testimony of PW-12 Inspector Pankaj Sood is very specific that he handed over the sealed pulandas of the case property alongwith FSL Form at the State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 65 of 104 spot to PW-5 Inspector Jagjit Singh, SHO PS Sarai Rohilla Railway Station. He has been corroborated on this fact by PW-5. PW-3 HC Virender was the MHC(M) at PS Sarai Rohilla Railway Station, who has deposed that pulandas of the case property were deposited with him by PW-5. Entries of Malkhana Register produced by PW-3 (Ex. PW-3/A) shows name and signature of PW-5 in the column specified for the name of the person depositing the case property. This entire evidence on record shows due compliance of Section 55 of NDPS Act.
107. As regards compliance of Section 57 of NDPS Act, it is a settled position that Section 57 NDPS Act is directory in nature and its violation would not ipso facto violate the trial or conviction (Reference to Gurbax Singh V/s State of Haryana, AIR 2001 SC 1002). Section 57 of NDPS Act mandates that whenever any arrest or seizure is made by any person under the NDPS Act, he shall within 48 hours of such arrest or seizure, make a full report of all particulars of such arrest or seizure to his immediate official superior. There is no particular form or manner prescribed in the NDPS Act for the purpose of report under Section 57 of NDPS Act. PW-12 and PW-16 are the police officials, who made seizure and arrest of all the accused persons at different places at different times. They have deposed consistently that a single report under Section 57 of NDPS Act was prepared with respect to seizure and arrest of accused Raj Kumar Mehta (A-1), Pradeep Kumar Chawla (A-2), Harjinder Singh (A-3), Inder Singh (A-4), and Mohd. Hanif (A-5). The said report has been proved as Ex. PW-15/A. Testimony State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 66 of 104 of PW-12 and PW-16 is consistent on the fact that after seizure and arrest of accused Harley (A-6) he was produced before the ACP and they are corroborated by ACP Ravi Shanker (PW-15) on this aspect. Though, there is a written report of PW-12 under Section 57 of NDPS Act (Ex. PW-15/B) on record regarding arrest and recovery from A-6, he is silent about this report in his deposition and rather stated that he had sent only one report under section 57 of NDPS Act.
108. Testimony of PW-12 and PW-16 is very categorical that PW-15 was informed telephonically after every recovery and arrest and PW-15 has corroborated them. Since recovery and arrest of A-1 to A-5 were made one after the other on the same day, a single report under Section 57 of NDPS Act was sent within the stipulated period and it is due compliance. Testimony of PW-16 and PW-15 is specific that a separate report under Section 57 of NDPS Act qua A-6 was sent after recovery and arrest within the stipulated period and it is a due compliance. Inconsistency in the deposition of PW-12 in this regard is inconsequential.
109. Ld. Defence counsel has argued that there is discrepancy in the statement of PW-12 and the documents on record regarding compliance of Section 57 of NDPS Act. It was contended that PW-12 in the cross-examination stated that he prepared only one report under Section 57 of NDPS Act, whereas there are four different reports prepared by him on record.
110. On perusal it is found that there are actually two reports of PW-12 under Section 57 of NDPS Act, one joint report about State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 67 of 104 qua A-1, A-2, A-3, A-4 and A-5 (Ex. PW-15/A) and a separate report about A-6 (Ex. PW-15/B). The other 2 reports referred by Ld. Defence counsel are in fact the copies of Ex. PW-15/A and Ex. PW-15/B.
111. The line of defence of A-1 is that he was lifted by the police from his house and 23000 US Dollars were seized by the police from the almirah of his house, which was given to him by DW-1 Harjit Singh Sidhu. DW-1 Harjit Singh Sidhu has claimed to be a businessman from USA and according to him he had given 23000 US Dollars to A-1 for arranging furniture. Besides mere oral statement, there is nothing on record to substantiate his claim in the sense that the witness did not produce any document to show that he gave 23000 US Dollars to A-1, he did not produce any document to show that he had brought 23000 US Dollars from US. Commercial transactions in foreign exchange are regulated by specific rules and guidelines. No evidence has been brought on record in defence that foreign exchange to the extent of 23000 US Dollars, which is not a small amount, came in possession of A-1 in the manner claimed by A-1 and deposed by DW-1 Harjit Singh Sidhu. Rather deposition of DW-1 is affirmation of the fact that A-1 was in possession of 23000 US Dollars. As per the prosecution witnesses A-1 had received 23000 US Dollars from A-2 at Sarai Rohilla Railway Station in exchange of a bag containing 02 Kilograms of Heroin. But A-1 has not been able to substantiate the defence plea about the manner in which he claims to have came in State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 68 of 104 possession of 23000 US Dollars. On the other hand, there is no reason to disbelieve the testimony of prosecution witnesses about the circumstances in which currency was received by A-1 from A-2. recovery of the foreign exchange from his possession at Sarai Rohilla Railway Station.
112. DW-4 Sandhya Mehta is the daughter in law of A-1, who has deposed that on 20.09.2003 A-1 was lifted from the house by 5-6 persons. In the cross-examination, this witness admitted that despite the fact that there was a land-line telephone connection at the house of A-1 as well as mobile phones available, no call was made at No.100 when A-1 was illegally picked up by the police and taken away. Thus, the defence plea is not believable.
113. DW-5 Krishna Rani is the mother of A-2, who has testified that his son was lifted from the house by 4-5 persons from police department on 20.09.2003 at about 10.15 am. In the cross- examination she stated that neither she nor the wife of A-2 made any phone call at No. 100 when A-2 was taken away by the police nor did they made any complaint to any authority about the incident. In the ordinary circumstances if a person is lifted from the house in the presence of the family members, they would immediately make complaint to the authorities. A telephone call at No. 100 is a normal reaction of the family members in such circumstances. In these circumstances the defence plea is not believable.
114. The evidence on record produced by the prosecution in State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 69 of 104 the form of various documents and testimony of prosecution witnesses, clearly establish that A-1 and A-2 were apprehended at Sarai Rohilla Railway Station on 20.09.2003 by a police party constituted pursuant to a secret information received by PW-15 ACP Ravi Shanker, a Gazetted Officer of Delhi Police about movement and presence of A-2. It is established that the green bag recovered from the possession of A-2, which was handed over to him by A-1 was found containing 02 packets of contraband and the white packet recovered from the possession of A-1, which was handed over to him by A-2 was found containing 23000 US Dollars.
115. As per the prosecution case and as deposed by the witnesses PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma, accused Harjinder Singh (A-3) and Inder Singh (A-4) were apprehended from a road near Goldakhana on the basis of disclosure and leads provided by A-1. The place of their search and seizure is a public place. Proceedings were conducted by PW-16 SI Ramesh Sharma, who by virtue of his rank is an empowered officer under section 42 of NDPS Act to search, seize and arrest.
116. It was argued by Ld. defence counsel that when PW-16 SI Ramesh Sharma proceeded to conduct search, seizure and arrest on the basis of disclosure made by co-accused, it was an information which he was supposed to reduce into writing and then send it to his senior officer under section 42 of NDPS Act. The contention of the Ld. defence counsel does not have merit in view State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 70 of 104 of the settled legal position that section 42 of NDPS Act would not be attracted when the search, seizure or arrest is made at a public place. As per the disclosure of A-1, the spot disclosed was a public place. There is no merit in the plea of the defence counsel that since the search conducted at the spot included the search of Indica car, section 42 would be applicable, because the disclosure of A-1 was about the presence of A-3 and A-4 at a public place and when PW-16 reached at the spot, he had no reason to comprehend that A-3 would be found sitting in the Indica car, which would also be required to be searched by him. Moreover it has come on record in the testimony of PW-12 Inspector Pankaj Sood and PW-16 SI Ramesh Sharma that immediately after recovery of contraband from the dikky of the car at the instance of A-3 and from the polythene carried by A-4, information of the recovery and the arrest of A-3 and A-4 was given to PW-15 ACP Ravi Shankar telephonically by PW-12 Inspector Pankaj Sood, and they have been corroborated by PW-15. In view of the guidelines laid by the Constitution Bench in Karnail Singh's case (supra) there is no violation of Section 42 of NDPS Act regarding search and seizure from the Indica car.
117. As regards contention of defence counsel about non- compliance of section 50 of NDPS Act during search of A-3 and A-4, in view of the settled legal position already discussed in the earlier part of the judgment, section 50 of NDPS Act is not applicable in this case as recovery was from a polythene bag held State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 71 of 104 by A-4 in his hand and from the boot of the car at the instance of A-3. Despite the fact that section 50 of NDPS Act would not applicable in this case, as matter of abundant precaution, written notices under section 50 of NDPS Act were given to both the accused persons before search of bag and car. Since section 50 is not applicable for search of A-3 and A-4, the contentions raised by ld. defence counsel about deficiency in its compliance are irrelevant.
118. It was argued by ld. defence counsel for A-3 and A-4 that since the allegedly seized contraband pulandas were not deposited with the SHO of the police station in the jurisdiction of which recovery was made, there is a violation of statutory procedure under section 55 of NDPS Act, and benefit should go to the accused persons. As per the prosecution case and as deposed by PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma, contraband packets recovered from the possession of A-3 and A-4 at the spot were sealed by PW-16 SI Ramesh Sharma at the spot after drawing samples. They were then seized by PW-16 and handed over to PW-12 Inspector Pankaj Sood at the spot. PW-12 Inspector Pankaj Sood then handed over them to PW-5 Inspector Jagjit Singh, SHO PS Sarai Rohilla at the police station, who has corroborated PW-12 about receiving sealed pulandas of the contraband.
119. It was submitted by ld. Addl. PP that since FIR was registered at PS Sarai Rohilla, for the purpose of compliance of section 55 of NDPS Act, it would be the SHO of the same police State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 72 of 104 station. I am convinced with the submission put-forth by ld. Addl. PP for the State not merely for the reason that the FIR was registered at PS Sarai Rohilla but also for the reason that investigation of this case was spread over in different areas of city and recovery and arrests were made at different places at different times. Having pulandas of the case property deposited with the SHO of the police station where seizures were made, would have created multiplicity of record as well as witnesses. Otherwise also defence has been unable to show what prejudice has been caused to them by deposition of the case property with PW-5, SHO of the police station Sarai Rohilla Railway Station where FIR was registered and the part of the case property was already deposited.
120. It was contended on behalf of A-3 and A-4 that contradiction in the testimony of PW-5 about the person who handed over the pulandas of the contraband to him at the police station creates a serious dent in the link and the benefit should go to the accused. No doubt, PW-5 deposed inconsistent to testimony of other witnesses about the fact as to who handed over to him the sealed pulandas of contraband related to A-3 and A-4 at the police station, but he was recalled on the application of Ld. Addl. PP for the State and clarified that the pulandas of the case property were handed over to him at the police station by PW-12 Inspector Pankaj Sood and not by PW-16 SI Ramesh Sharma.He explained that his earlier deposition in the Court, when he had stated that the case property was handed over to him at the police station by PW-16 SI Ramesh Sharma was an inadvertent mistake. The State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 73 of 104 explanation given by PW-5 is satisfactory and testimony of PW-12 and PW-16 does not leave any doubt that the pulandas of the case property were handed over to PW-5 at the police station by PW-12.
121. The evidence on record, as discussed above shows due compliance of section 55 of NDPS Act in the sense that sealed pulandas of the contraband recovered from A-3 and A-4 and samples seized at the spot were handed over to PW-5, SHO PS Sarai Rohilla who after affixing his seal on the pulandas deposited them in the Malkhana.
122. It was argued by ld. Defence counsel for accused Inder Singh (A-4) that he was picked up by the police from Shastri Nagar on 20.09.2003 at about 3.00 pm when he was going on scooter to his telephone booth. DW-2 Ashok Kumar has deposed on the line of defence. In the cross-examination DW-2 stated that he had no document to show that he was running the tea shop at place from where A-4 was picked up by the police. It has come in his cross- examination that he did not make any call at No. 100 to the police about the incident. It is not clear from his deposition as to how he knew and identified A-4. Presence of DW-2 at the spot is not proved. In these circumstances deposition of DW-2 does not inspire any confidence.
123. The other witness examined in defence by A-4 is DW-3 who has claimed to be his nephew. According to DW-3 on 20.09.2003, wife of A-4 called him several times to inquire about his whereabouts when A-4 did not return home. It has come in the State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 74 of 104 cross-examination of this witness that no complaint was made to any authority. DW-3 does not claim to have personal knowledge about the circumstances in which A-4 was allegedly apprehended by the police. Therefore deposition of DW-3 does not help A-4.
124. It was argued on behalf of the accused Harjinder Singh (A-3) that prosecution has failed to establish through concrete evidence that Indica car was in his possession, A-3 does not know driving and no driving license has been recovered from him, testimony of owner of Indica car (PW-11) is unreliable and none of the mobile phones and SIM cards allegedly recovered from the house of A-3 are in his name.
125. According to police witnesses PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma when they reached at the spot disclosed by A-1, they found one Indica Car bearing No. HR-38-FT-9720 standing near front gate of the church opposite to Gol Dakhana. According to them, A-1 pointed at the person sitting on the driving seat of the car as Harjinder Singh (A-3) and the person standing near the car as Inder Singh (A-4). Besides the testimony of police witnesses there is an independent public witness (PW-4 Vikas Kumar) who has corroborated them. Neither it is the prosecution case nor it is deposed by any of the witness that A-3 was driving the car or that he is owner of the vehicle. Whether A-3 was capable of driving, is not an issue or fact relevant in this case. Similarly absence of recovery of driving license from A-3 cannot lead to any inference State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 75 of 104 against his presence inside the car.
126. Testimony of PW-11 is very specific on the fact that he had entered into an agreement (Ex. PW-11/A) with A-3 to give his white Indica Car bearing No. HR-38-FT-9720 on monthly rental of Rs. 14,000/- per month. He identified his signatures and signatures of A-3 on this agreement and deposed that the agreement was seized by the police (seizure memo Ex. PW-6/C). Deposition of this witness has gone unassailed on the facts stated by him as he has not been cross-examined on these facts. In the absence of any material or suggestion to the contrary, testimony of PW-11 and the agreement dated 01.07.2003 Ex. PW-11/A are sufficient to show and prove that A-3 was in possession of the said Indica Car on 20.09.2003. Testimony of police witnesses PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma, duly corroborated by an independent public witness PW-4 Vikas Kumar, does not leave any doubt that A-3 was the person sitting inside this car when he was apprehended by the police.
127. As regards the defence plea that none of the SIM Cards and the mobile phones allegedly recovered from A-3 are in his name, testimony of the witnesses about seizure as per seizure memo Ex. PW-12/R has gone unassailed and thus there is no force in this argument.
128. Accused A-3 has examined one Avatar Singh (DW-6) as witness in defence according to whom he alongwith A-3 were lifted by the police from outside Dr. Singhal Hospital at Rajinder Nagar State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 76 of 104 on 20.09.2003 at about 5.00 pm. According to DW-6 he was released by the police on the next day at about 7.00 pm but A-3 was detained. It has come in the cross-examination of this witness that he did not raise hue and cry when he was lifted by the police. It is noteworthy that in the cross-examination, this witness stated that he had driven accused A-3 in the vehicle number HR-38-FT-9720, which is the same number of the Indica Car in which A-3 was found sitting when he was apprehended by the police and from the boot of which 1 Kilogram contraband was recovered at the instance of A-3. In the cross-examination, DW-6 failed to disclose whereabouts of the said vehicle in which he claimed to have driven A-3 to the hospital. It is noteworthy that DW-6 stated in the cross- examination that he cannot show the documents of registration of the said vehicle. Response of DW-6 to the questions put to him in the cross-examination makes him unworthy of credence.
129. In view of the defence pleas raised on behalf of A-3 & A-4 it is relevant to take note of a recent decision of the Apex Court on the issue as to how much benefit of doubt can be given to the accused and what is the nature of degree of proof required to be adduced by the prosecution. The relevant paragraphs of the decision in Iqbal Moosa Patel Vs. State of Gujarat, 2011 I AD (S.C) 588 - Supreme Court of India are:
Para 13 : That brings us to the question whether the appellants could be given the benefit of doubt having regard to the nature of the evidence adduced by the prosecution against them. We do not think that the appellants have made out a case for grant of any such benefit. It is true that the State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 77 of 104 prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller Vs. Minister of Pensions (1947) 2 ALL ER 272:
"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence 'of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt.....
It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. [Emphasis supplied] Para 14 : Reference may also be made to the decision of this Court in Sucha Singh & Anr. Vs. State of Punjab (2003) 7 SCC 643 where this Court has reiterated the principle in the following words:
"......Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence.
Justice cannot be made sterile on the State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 78 of 104 plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh Vs. Satpal Singh AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish."
[Emphasis supplied]
130. Police witnesses of recovery namely PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma have deposed consistently that accused Harjinder Singh (A-3) got recovered 01 Kilogram of contraband (seizure memo Ex. PW-4/F) from the dicci of the Indica Car and 01 Kilogram contraband was recovered from a polythene bag carried by accused Inder Singh (A-4) (seizure memo Ex. PW-4/E). Public witness PW-4 Vikas Kumar has also deposed consistently on these facts.
131. Ld. Defence counsel argued that recovery of contraband is doubtful because presence of A-4 at the spot is doubtful, State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 79 of 104 testimony of public witness suffers from material discrepancies, no public person was joined as a witness at the spot and there are material discrepancies and inconsistencies in the statements of the recovery witnesses.
132. As regards presence of PW-4 at the spot is concerned, he has deposed clearly about the place from where he was joined by the raiding party. His testimony is on the lines of deposition of police witnesses. Despite lengthy cross-examination of this witness, his testimony about his presence at the place from where he joined the police party has gone un-assailed. Rather PW-4 gave minute details of the circumstances in which he was present outside the Birla Mandir when police met him and requested him to join the raid.
133. It is a settled legal position that testimony of the police witnesses can be relied upon even in the absence of independent public witnesses if it is trustworthy {Reliance is placed on Ajmer Singh V/s State of Haryana 2010(1) Drugs Cases (Narcotics) 99; G. Sriniwas Goud V/s State of AP (2005)8 SCC 183 and Ramesh Kumar Rajput V/s State of NCT of Delhi, 2009(1) Drugs Cases (Narcotics) 289}. In this case PW-4, a public witness was joined by the police party while on the way to the spot. Police is not bound to join public witnesses at every nook and corner while proceeding to the spot and also after reaching at the spot. Presence of PW-4 as already discussed above is sufficient to add corroboration to the testimony of police witnesses of recovery.
134. It was contended by Ld. Defence counsel that while as State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 80 of 104 per the police witnesses, Inder Singh (A-4) was carrying a pink colour polythene in his hand, PW-4 has stated that accused Harjinder Singh (A-3) was carrying a pink colour polythene in his hand. On examination of deposition of PW-4 as a whole, it is found that this witness deposed very specifically in his examination-in- chief that there was one person sitting inside the Indica Car, whom he identified as Harjinder Singh (A-3), and there was a "Sardarji" standing near the car, whom he identified as accused Inder Singh (A-4). It is also clear in his deposition that one packet of contraband was recovered from a pink colour polythene and another packet was recovered from the dicci of the Indica Car, which is absolutely on the lines of the prosecution story about recovery. But, name of accused Harjinder Singh (A-3) has come in his examination in chief qua both the recoveries. However, on careful examination of his entire testimony, it is found that while giving details of recovery of contraband from a pink polythene bag, though he mentioned the name of accused as Harjinder Singh (A-3), but while narrating the sequence of incident, he stated that after seizure of the contraband from the polythene bag, accused Inder Singh (A-4) was made to sit in the police van. Thereafter PW-4 gave details of contraband recovered from the dicci of the Indica Car at the instance of accused Harjinder Singh (A-3). Therefore, it is clear that name of accused Harjinder Singh (A-3) qua recovery of contraband from polythene bag is an error, either typographical or human and there is no confusion about specific State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 81 of 104 recovery from accused Harjinder Singh (A-3) and Inder Singh (A-4) in view of testimony of other witnesses and the documents.
135. Ld. Defence counsel argued that since PW-12 was cross-examination by Ld. Addl. PP, benefit should go to the accused and also that there is inconsistency in his deposition about specimen seal affixed on the pulandas of the case property prepared at the spot. PW-12 was cross-examination by Ld. Addl. PP about the fact of service of Notice under Section 50 of the NDPS Act to accused Harley (A-6) before his search on 22.09.2003. Therefore, inconsistency if any in the testimony of PW-12 about search of co-accused on 22.09.2003 will not adversely affect search and recovery from A-3 and A-4. Nevertheless, merits and consequences of inconsistency in the deposition of PW-12 qua search of A-6 if any shall be dealt with in the later part of the judgment.
136. Ld. Defence counsel argued that PW-12 and PW-14 were unable to give details of the Notice under Section 50 of the NDPS Act. There are no material defects in their statements about search and recovery. Inconsistency regarding Notice under Section 50 of the NDPS Act if any, is irrelevant because it is not applicable to search of A-3 and A-4, as already discussed in the earlier part of the judgment.
137. It was contended that PW-16 did not join the local police at the spot where search and recovery of contraband was made from A-3 and A-4 and that he did not remember how many State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 82 of 104 disclosures of A-3 and A-4 were recorded. The contentions raised have no merit as PW-16 was not bound to join the local police in the proceeding at the spot and his inability to correctly give number of disclosures made by A-3 and A-4 is inconsequential.
138. The evidence on record produced by the prosecution about search, recovery, seizure and arrest of A-3 and A-4 includes testimony of PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh, PW-16 SI Ramesh Sharma and PW-4 Vikas Kumar. Deposition of all these witnesses is consistent on material facts. Nothing has come in their cross-examination to shake their testimony on the fact of apprehension of A-3 & A-4 at the spot and recovery and seizure of contraband from them. Evidence on record is sufficient to establish that 01 Kilogram contraband was recovered from the possession of each of A-3 and A-4.
139. As regards accused Mohd. Hanif (A-5), he was apprehended at the instance and on the basis of leads provided by accused Raj Kumar Mehta (A-1) and 02 Kg & 50 Grams of heroine was recovered at his instance. Evidence about recovery of contraband at the instance of A-5 is testimony of witnesses PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh, PW-16 SI Ramesh Sharma and an independent public witness PW-9 Anand Prakash. PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh, PW-16 SI Ramesh Sharma have deposed consistently on the fact that on 20.09.2003 at about 9.00 pm, A-5 was apprehended from Sector-11, Rohini on the pointing out and on the identification of State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 83 of 104 A-1. As deposed by these witnesses, A-1 had provided leads about presence of A-5 in the house of his brother at Rohini and on the basis of this lead, A-5 was apprehended from outside the said house.
140. It was argued by Ld. Defence counsel for A-5 that there is no evidence on record to show that house in question at Sector-11, Rohini, belonged to the brother of A-1. The contention raised by the ld. Defence counsel is irrelevant as ownership of the house is not an issue in this case. The reference of this house has come only for the purpose of location about presence of A-5.
141. According to the deposition of the three police witnesses i.e. PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma, A-5 had disclosed that he had buried 2 kg of heroine in a tube on the north side of the Japani Park gate and he led the police party to the said spot. It has come in the testimony of all the three witnesses that at that stage of the proceedings, one public person Anand Prakash (PW-9) joined the police party on request. Ld. Defence counsel argued that presence of PW-9 Anand Prakash at the place is highly doubtful as he is a resident of Bijwasan, a place which is approximately 32 Kilometers from the spot and the time was 9.30 pm which is unusual for an ordinary person to be away from his place of residence. The doubt raised by the defence about the presence of PW-9 Anand Prakash at the spot is based on hypothetical assumptions without any basis. Moreover, despite the lengthy cross-examination of this witness nothing has come unusual to raise suspicion or doubt about his State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 84 of 104 presence at the spot. He is a chance witness and has explained satisfactorily about his presence at the spot stating that he had gone to visit Japani Park as it is a good spot. There is no basis to discard the version given by PW-9 Anand Prakash about his presence at the spot.
142. Prosecution witnesses PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma have deposed consistently that A-5 dug the ground about 1 feet and took out a tube which contained a packet wrapped in a yellow colour tape containing powdery substance (Heroine). PW-9 Anand Prakash has corroborated police witnesses about recovery contraband from under the ground. In view of the place of recovery, Section 42 & Section 50 of NDPS Act are not applicable.
143. Ld. Defence counsel argued that since all the witnesses have given a different version about the object with which the ground was dug by A-5 and said object not being seized, the benefit should go to the accused. PW-12 Inspector Pankaj Sood in the cross-examination stated that digging was done by A-5 with a piece of wood lying nearby. On the same aspect PW-14 SI Harbir Singh stated that the ground was dug by A-5 with the help of a wooden piece or an iron patti and PW-16 SI Ramesh Sharma stated in the cross-examination that it was dug by a screw driver. The inconsistency in the testimony of three recovery witnesses on this aspect is inconsequential as the object with which the ground was dug by A-5 is not relevant fact {Reference to Dalel Singh State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 85 of 104 (Supra) & Lakhwinder Singh (Supra)}.
144. It was argued by the defence counsel that inconsistency in the testimony of PW-9 Anand Prakash qua deposition of other witnesses of recovery about the fact as to who had dug the ground creates doubt about presence of PW-9. According to PW-9, digging was done by police whereas the police witnesses have stated that it was done by the accused. To my mind had this inconsistency come in the testimony of a police witness, it would have had impact but since it has come in the testimony of PW-9 Anand Prakash, a public witness, it can be ignored because PW-9 is a witness of fact of recovery of contraband and is not a witness of technicalities. His testimony about presence of A-5 at the time of digging has not been shaken despite lengthy cross-examination. It is a settled legal position that statement of a witness has to be viewed in totality. Moreover, perception and observation of a common man about an incident would be different than the observation of a policeman. While a common man would concentrate on the main act, attention of the police witnesses would also be on the surrounding circumstances. While recovery of a substance from the ground would be more keenly observed by a common person, the police officials involved in the investigation would also focus on as to who had dug the ground and how.
145. Attempt was made to discredit the testimony of PW-9 on the grounds that he could not tell the name of the person who recorded his statement, could not tell the name of the person who mentioned the particulars on the pulandas, stated that he did not State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 86 of 104 sign the pulandas and did not specify clearly the document signed by him. In view of the decision of the Apex Court in the Dalel Singh's case (supra), all these omissions are inconsequential as they do not in any manner affect the substratum of the case. Moreover, it is not possible for a public witness to know the names of police officers involved in the investigation. Similarly, it is not possible for a public witness to technically specify the nature of documents prepared by the police during investigation at the spot. Expecting these details from a public witness would amount to putting a too heavy burden on the witness, which is unrealistic.
146. It was argued by Ld. Defence counsel that since PW-9 in the cross-examination stated that only A-5 was in the police custody, the prosecution story about the apprehension of accused A-5 on the basis of pointing of A-1 falls flat, because if A-5 was apprehended at the instance of A-1, the he was bound to be present at the spot where digging was done and the contraband was recovered and his presence was bound to be noticed by PW-9 Anand Prakash.
147. Statement of PW-9 about presence of A-5 at the spot does not automatically exclude the presence of A-1. In order to discredit PW-9 Anand Prakash, the witness was required to be confronted and should have been given an opportunity to clearly exclude or make statement about the presence or absence of A-1. Since opportunity was not given to PW-9 Anand Prakash in the cross-examination, his testimony cannot be discarded. Testimony State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 87 of 104 of PW-9 Anand Prakash about his presence at the spot, presence of A-5 at the spot and recovery of contraband in presence of A-5 from the dug up ground, has remained unscathed.
148. Despite lengthy cross-examination of the police witnesses PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma nothing has come on record to discredit their version about the recovery of contraband kept hidden inside a tube buried in the ground, at the instance of A-5. They have been duly corroborated by PW-9 Anand Prakash an independent public witness on the fact of recovery and seizure. Besides testimony of the witnesses, seizure of contraband at the instance of A-5 has been duly proved vide seizure memo Ex. PW-9/A.
149. Mere non-production of log book entries of the government vehicle, in which the police party travelled to reach the spot, cannot displace the other evidence about recovery, which is credible and reliable. Contentions about link evidence, seal and delay in sending the sample to FSL have no force and have already been dealt in detail in the earlier part of the judgment.
150. Allegation against the accused Harley (A-6) is that he was apprehended at the instance of accused Harjinder Singh (A-3) and 300 Grams contraband was recovered from the pocket of half pant worn by him. Evidence against A-6 on record includes testimony of police witnesses PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma and a public witness Darshan Lal (PW-13) which has already been noted State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 88 of 104 in the earlier part of the judgment. Besides assailing the testimony of the witnesses on the ground of inconsistencies and contradictions, ld. Defence counsel has argued that search and seizure of alleged contraband from A-6 was made in violation of Section 42 and 50 of NDPS Act and thus is illegal and cannot be made basis for conviction. Ld. Defence counsel has relied on Vijaysinh Chandubha Jadeja's case (Supra) and Amarjit Singh V/s State (Delhi Admn.) 1995 Crl. L. J. 1623 in support of his argument about non-compliance of Section 50 of NDPS Act.
151. As per the prosecution story and the evidence on record search of A-6 was made on the road, at a public place. Therefore in view of the settled legal position as discussed in the earlier part of the judgment, section 42 of NDPS Act is not attracted. Any violation of any qua search of the room of A-6 after recovery of contraband from him is inconsequential as nothing was recovered from the said room. As per prosecution case and as per the material on record 300 grams contraband was recovered from pant pocket of A-6. Since recovery was made from the person of A-6, statutory procedure provided under Section 50 of NDPS Act is applicable.
152. PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma have deposed consistently that before conducting search, A-6 was told about the information with the police and a written notice under Section 50 of NDPS Act (Ex. PW-12/S) was given to A-6. All the three witnesses have State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 89 of 104 deposed consistently that A-6 neither signed the notice nor received the same and rather had become apprehensive. Ex. PW-12/S finds an endorsement on the bottom of the notice that A-6 refused to sign the notice and also refused to accept the same.
153. It was argued by ld. defence counsel that PW-12 Inspector Pankaj Sood and public witness PW-13 Darshan Lal turned hostile and were cross-examined by Ld. Addl. PP for the State, therefore, prosecution story about search and recovery becomes doubtful.
154. Mandatory requirement of section 50 of NDPS Act is that prior to search, the person required to be searched must be informed about his right to give his search in the presence of a Gazetted Officer or a Magistrate and an offer should be made. If the person desires to give his search in the presence of any of such officer, he should be searched as desired. Law imposes duty on a police officer empowered under section 42 of NDPS Act to inform and make an offer to the person, who is required to be searched. There is no prescribed format or manner for conveying the information under Section 50 of NDPS Act.
155. Police witnesses have deposed consistently that offer was made to A-6 with due information about his legal right by way of a written notice. A-6 could not have been forced or compelled to received copy of the notice, nor he could be forced to sign. Nothing has come in the cross-examination of the police witnesses to create any doubt about their deposition regarding written notice to A-6, under Section 50 of NDPS Act.
State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 90 of 104156. Though PW-12 in the examination-in-chief omitted to state specifically that A-6 was informed of his legal right under Section 50 of NDPS Act, he affirmed when cross-examined by Ld. Addl. PP for the State on this fact. Inadvertent omission about a detail of notice under Section 50 NDPS Act in the testimony of PW-12 does not make him a hostile witness, because neither he has deposed contrary to the prosecution story nor he has disputed his presence at the spot. It is a human error and omission is inconsequential in view of sufficient and cogent other material on record in the form of testimony of PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma and the document Ex. PW-12/S to prove this fact.
157. Similarly, just because public witness PW-13 Darshan Lal remained silent in his examination-in-chief about service of written notice under Section 50 of NDPS Act to A-6 would not automatically lead to conclusion or inference of non-compliance of the statutory procedure requirement because PW-13 is a witness of fact of recovery of contraband and not a witness of technical procedure of search. Moreover, on careful examination of deposition of PW-13 Darshan Lal it is found that PW-13 deposed clearly that on 22.09.2003 while he was standing at the bus stand of Munirka, 6 - 7 persons came in a Government vehicle and he joined them on their request. In the cross-examination of this witness, identity of those persons have been clearly revealed as the police officials. According to PW-13 Darshan Lal, he was informed by the police that a negro was involved in selling Smack State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 91 of 104 in the nearby area and he deposed that one negro was apprehended at about 1.00 pm who was standing on the road. It has come specifically in the deposition of this witness that enquiries were made from the said negro and thereafter in his search, a packet containing light brownish powdery substance was recovered from his possession. PW-13 identified A-6 in the Court and nothing has come on record in his cross-examination to disbelieve him on this fact. Deposition of PW-13 makes clear that A-6 was not searched immediately after his apprehension and that he was searched by the police after some enquiry. Testimony of the police witnesses i.e PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma indicate the purpose and the content of that enquiry i.e information to the A-6 that police had the information and he had the legal right to give his search in the presence of a Gazetted Officer or a Magistrate.
158. Compliance or non-compliance of the procedure under Section 50 of NDPS Act is to be gathered on the basis of entire evidence on record taken as a whole. Testimony of the police witnesses corroborate by the document Ex. PW-12/S, does not leave any doubt that prior to search of A-6, he was duly informed about his legal right to make an option to give his search in the presence of a Gazetted Officer or a Magistrate, which A-6 refused.
159. In Vijaysinh Chandubha Jadeja's case (Supra) the Constitution Bench of the Apex Court reiterated Baldev Singh's case (Supra) holding that obligation of the authorized officer under State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 92 of 104 Sub-Section (1) of Section 50 of the NDPS Act is mandatory and requires strict compliance. It was observed that though Section 50 of NDPS Act gives an option to an empowered officer to take search of the accused either before a Gazetted Officer or a Magistrate, but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be produce a suspect before the nearest Magistrate, who enjoys more confidence of a common man compare to any other officer. The observation of the Apex Court would come into operation in the situation, when an offer made by the police officer under Section 50 (1) NDPS Act is accepted by the accused, and it is in that situation that it was observed by the Apex Court that an endeavour should be made to produce the suspect before the nearest Magistrate preferably. In the present case, there is sufficient evidence on record that A-6 refused to avail the offer and, therefore, there was no occasion for PW-16 to take him to the Magistrate or the Gazetted Officer.
160. In view of settled legal position regarding applicability and compliance of Section 50 of NDPS Act on the basis of Constitution Bench decisions of the Apex Court in Baldev Singh's case (Supra) and Vijaysinh Chandubha Jadeja's case (Supra), dictum of Amarjit Singh's case (Supra) is not applicable.
161. The evidence on record, including testimony of PW-12, PW-14, PW-16 and the document (Ex. PW12/S) show due compliance of Section 50 of NDPS Act and leaves no doubt that prior to search, A-6 was duly informed about his legal right to State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 93 of 104 exercise option to give his search in the presence of a Gazetted Officer or a Magistrate. Hence, there is no illegality in the search or violation of procedure in making search of the accused.
162. As per the evidence on record including testimony of PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 300 grams contraband was recovered from the pant pocket of A-6. PW-13 Darshan Lal an independent witness has also deposed on the same lines.
163. Ld. Defence counsel argued that presence of PW-13 at the spot is doubtful because he is a resident of another area, testimony of PW-13 cannot be relied upon as he has been declared hostile witness by the prosecution, he failed to identify accused Harjinder (A-3) and there are material contradictions in the testimony of PW-13 Darshan Lal. It was argued that recovery is doubtful as landlord/neighbours of the locality were not examined during investigation and Embassy of the country of A-6 was not informed by the police.
164. It is observed that PW-13 Darshan Lal was cross- examined by Ld. Addl. PP for the State not for the reason that he resiled from his previous statement or that he turned hostile, he was cross-examined because he was either silent or omitted tell certain facts. Testimony of PW-13 could be assailed only if his presence at the spot is shown to be doubtful or if he brings altogether a new story contrary to the prosecution. Deposition of PW-13 in his examination in chief is very specific about his presence at the spot, identity of A-6 and recovery of contraband State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 94 of 104 from his possession. Despite lengthy cross-examination, nothing has come on record to create any doubt about his credibility on these facts. Presence of PW-13 cannot be doubted merely on the ground that he is a resident of another area. Nothing has come in the cross-examination of this witness to create any doubt about his presence at the spot and about his deposition regarding recovery of contraband from A-6. There is no force in the contention of the defence that since PW-13 failed to identify A-3, his presence is doubtful because PW-13 is a witness of recovery from A-6 and there is no reason or occasion for PW-13 to identify A-3. No inconsistencies or contradictions have been pointed out in the testimony of PW-13, which go to the substratum of the case and recovery from A-6.
165. There is no force in the defence argument that since landlord and neighbours of A-6 are not made witnesses, benefit should go to the accused, because neither the landlord of A-6 nor his neighbours are witnesses of his arrest and recovery from him. Similarly, not giving information to the Embassy does not affect the merits of this case as it has no relevance to the facts in issue.
166. Testimony of PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma has remained unshaken on the fact of recovery of contraband from the possession of A-6. They have been corroborated on the fact of recovery by an independent witness PW-13 Darshan Lal, whose presence at the spot is not doubted. Deposition of these witnesses State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 95 of 104 gets support from documents i.e written notice under Section 50 of NDPS Act Ex. PW-12/S, the seizure memo (Ex, PW-12/I), arrest memo (Ex. PW-12/T) and the personal search memo (Ex. PW-12/U).
167. Prosecution has relied on FSL Result dated 05.12.2003 (Ex. PX) to show that contraband recovered from the possession of accused persons was Heroin (Diacetylmorphine). PW-17 Dr. Madhulika Sharma, Assistant Director, FSL Delhi, the then Senior Scientific Officer, FSL Delhi, is the author of this report. In order to appreciate this report and the contentions raised by the defence it is essential to go through the relevant evidence on record.
168. Testimony of PW-12 Inspector Pankaj Sood and SI Ramesh Sharma is specific that samples were drawn from the contraband recovered from the possession of accused persons at the spot. Two packets of contraband/Heroin recovered from the possession of accused Pradeep Kumar Chawla (A-2) were marked Serial No. 1 and Serial No. 2. Samples drawn from the packet Serial No. 1 were marked S-1 & S-2 and the samples drawn form the packet were marked S-3 & S-4. The packet of contraband/Heroin recovered from the possession of accused Inder Singh (A-4) was marked Serial No. 4 and the samples drawn from it were marked S-5 & S-6. The packet of contraband/Heroin recovered from the possession of accused Harjinder Singh (A-3) was marked Serial No. 5 and the samples drawn from it were marked S-7 & S-8. The packet of contraband/Heroin recovered State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 96 of 104 from the possession of accused Mohd. Hanif (A-5) was marked Serial No. 6 and the samples drawn from it were marked S-9 & S-10. The packet of contraband/Heroin recovered from the possession of accused Harley (A-6) was marked Serial No. 7 and the samples drawn from it were marked S-11 & S-12. 169 As per the testimony of PW-3 HC Virender and PW-6 HC Suresh Chand, six sealed sample pulandas were deposited at FSL, Malviya Nagar, New Delhi. Ex. P-X is the analysis report dated 05.12.2003 from the Laboratory, according to which the six sealed sample pulandas received in the Laboratory were marked S-1, S-3, S-5, S-7, S-9 and S-11. This report has been proved by PW-17 Dr. Madhulika Sharma. As per the report, on chemical and gas chromatography examination, the contents of pulandas S-1, S-3, S-5, S-7, S-9 and S-11 were found contained "Diacetylmorphine" and its percentage was detected as 14.7, 22.7, 16.4, 35.7, 35.4 and 26.8 respectively.
170. It was argued in defence that on the applications of accused persons samples of the contraband were sent twice during the trial by the Court for examination and as per subsequent reports received, there was not only variation in the percentage of Diacetylmorphine but in some of the samples it was shown to have increased, which is against the chemical nature of Diacetylmorphine.
171. On perusal of record it is found that on 19.02.2008 applications moved on behalf of the accused Pradeep Kumar Chawla (A-2), Harjinder Singh (A-3) and Mohd. Hanif (A-5) for State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 97 of 104 sending the samples to CFSL for re-examination was allowed by the Ld. Predecessor and SHO PS Sarai Rohilla Railway Station was directed to produce the case property in the Court for taking the samples from the main pulandas. On 23.02.2008 pulandas of the case property, recovered from the possession of accused A-2, A-3 and A-5 were produced, samples were drawn in the Court, they were sealed in four sealed pulandas by the Ld. Predecessor, specimen seal was also given on a paper and pulandas with the specimen seal were sent to the Director of the Laboratory. As per the FSL Result dated 30.04.2008 (approximately five years after recovery), samples in all the pulandas were found to contain Diacetylmorphine. Percentage of Diacetylmorphine in the samples (marked PradeepB/S-1 and PradeepA/S-2) drawn from the two contraband packets recovered from the possession of A-2 was found to be 14.69% and 22.69% respectively. Identification marks on the samples are indicative of their obvious source i.e. sample marked PradeepB/S-1 was from packet Serial No. 1 and sample marked PradeepA/S-2 was from packet Serial No. 2. Percentage of Diacetylmorphine in the sample drawn from the contraband recovered from the possession of A-3 was found to be 35.7 % and percentage of Diacetylmorphine in the sample drawn from the contraband recovered at the instance of A-5 was found to be 35.3. This report is on the line of first report Ex. P-X, as there is negligible fall in the percentage of Diacetylmorphine in the subsequent samples drawn from the packets recovered from A-2 whereas the percentage of Diacetylmorphine in the subsequent State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 98 of 104 sample drawn from the contraband recovered at the instance of A-5 is the same as reported in Ex. P-X. Therefore, contention of the defence about variations in the contraband against its nature is not relevant with regard to the FSL Result dated 30.04.2008.
172. As per record, once again application of accused Hanif (A-5) for re-examination of the sample of contraband allegedly recovered from him was allowed by the Ld. Predecessor vide order dated 21.05.2009 and similar application of accused Pradeep Kumar Chawla (A-2) was allowed vide order dated 01.06.2009. Samples were drawn in the Court on 06.06.2009. Sample drawn from the contraband connected with A-5 was marked-X and samples drawn from the contraband in packets No. 1 and 2 connected with A-2 were marked Y & Z respectively. As per the CRCL Report dated 08.07.2009 percentage of Diacetylmorphine in samples Marked-X, Y & Z was found 22.7%, 16.5 % and 16.7 % respectively.
173. It was contended by the defence that increase in the percentage of Diacetylmorphine demolishes the prosecution story.
174. I have carefully gone through the third report dated 08.07.2009 (six years after recovery) about percentage of Diacetylmorphine in the samples drawn from the contraband connected to A-2 and A-5. In ordinary conditions, as a matter of fact, Diacetylmorphine, which is highly reactive substance, converts to Monocitylmorphine over a period of time and thus percentage of Diacetylmorphine would fall. Therefore, there is no anomaly with respect to samples marked X and Z because State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 99 of 104 percentage of Diacetylmorphine in the samples has decreased. The one sample which has shown marginal increase of 2% in the percentage of Diacetylmorphine is sample "Y".
175. In order to draw adverse inference as contended by the defence counsel, it was necessary to examine the expert to explain unusual variation in the substance. For the best reason known to the defence, no such effort was made at any stage of the trial. Moreover, the pulandas of the case property were opened repeatedly during the trial and thus possibility of external factors hampering normal behaviour of the substance cannot be ruled out was exposed to the environmental conditions. In these facts and circumstances, in the absence of testimony of the expert who gave the third report 08.07.2009 and consequently no opportunity to the prosecution to explain this aspect, it would not be in the interest of justice to draw adverse inference merely on the basis of 2% increase in the percentage of Diacetylmorphine in one of the two packets of contraband recovered from A-2. Otherwise also, small variation in the percentage of Diacetylmorphine in one of the packets of contraband, will not affect the entire recovery from all the accused.
176. Since percentage of Diacetylmorphine goes down with passage of time, in order to determine the quantity of Diacetylmorphine in the contraband recovered from the possession of accused persons, FSL Result Ex. P-X dated 05.12.2003 is taken into consideration since it is prior in time (after about 2 ½ months of recovery). According to the percentage of Diacetylmorphine found State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 100 of 104 in six (06) samples in this report, weight of Diacetylmorphine in the contraband Serial No. 1 comes to 147 Grams, weight of Diacetylmorphine in the contraband Serial No. 2 comes to 227 Grams, weight of Diacetylmorphine in the contraband Serial No. 4 comes to 164 Grams, weight of Diacetylmorphine in the contraband Serial No. 5 comes to 357 Grams, weight of Diacetylmorphine in the contraband Serial No. 6 comes to 700.8 Grams and weight of Diacetylmorphine in the contraband Serial No. 7 comes to 80.4 Grams.
177. In view of the above, having regard to Entry No. 56 of the Table notified in the NDPS Act vie SO No. 1055(E) dated 19.10.2001, total weight of Heroin recovered from the possession of accused Pradeep Kumar Chawla (A-2) comes to 374 Grams, a commercial quantity; total weight of Heroin recovered from the possession of accused Harjinder Singh (A-3) comes to 357 Grams, a commercial quantity; total weight of Heroin recovered from the possession of accused Inder Singh (A-4) comes to 164 Grams, an intermediate quantity; total weight of Heroin recovered from the possession of accused Mohd. Hanif (A-5) comes to 700.8 Grams, a commercial quantity and total weight of Heroin recovered from the possession of accused Harley (A-6) comes to 80.4 Grams, an intermediate quantity.
178. As per the prosecution story, all the accused were in possession of contraband being a party to a criminal conspiracy to commit an offence under the NDPS Act. Accordingly they have been jointly charged for committing the offence punishable under State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 101 of 104 Section 21 read with Section 29 of the NDPS Act. Evidence on record against the accused persons about conspiracy include testimony of PW-12 Inspector Pankaj Sood, PW-14 SI Harbir Singh and PW-16 SI Ramesh Sharma, recovery of contraband and recovery of phones. According to the testimony of above witnesses, accused Raj Kumar Mehta (A-1) and Pradeep Kumar Chawla (A-2) were apprehended (Ex. PW-12/C and Ex. PW-12/B) on the basis of a secret information and two packets of contraband was recovered from their possession, the details of which has already been discussed in the earlier part of the judgment. On the basis of disclosure and leads provided by A-1, contraband was recovered from the possession of accused Harjinder Singh (A-3), accused Inder Singh (A-4) and accused Hanif (A-5) and they were arrested. On the basis of disclosure and leads provided by A-3, contraband was recovered from the possession of accused Harley (A-6) and he was arrested. Recovery of contraband, seizure and arrest of the accused persons in the circumstances as per the prosecution story has been established by the evidence on record, which has been dealt with in earlier part of the judgment.
179. As per testimony of the prosecution witnesses and seizure memo Ex. PW-12/Q, two mobile phones were recovered at the instance of A-2 from his house at K-271, Swami Daya Nand Colony, Delhi - one make Samsung (Ex. P-28) with No. 9811660987, IMEI No. 35013889162687/2 (hereinafter referred as "M-1") and other make LG (Ex. P-29) with Reliance State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 102 of 104 connection No. 35364949 (hereinafter referred as "M-2") .
180. As per testimony of the prosecution witnesses and seizure memo Ex. PW-12/R, two mobile phones and four SIM Cards were recovered at the instance of accused Harjinder Singh (A-3) from his residential house at B-7, Pocket-7, Sector - 15, Rohini, Delhi. As per the memo, one mobile phone make Nokia (Ex. P-30) with No. 9891010713, IMEI No. 350686607021830 (hereinafter referred as "M-3"), one phone make Samsung (Ex. P-31) with Reliance No. 011-36502705 (hereinafter referred as "M-4"), one SIM Card of Airtel No. 9818357749 (Ex. PW-32) (hereinafter referred as "M-5"), one of Airtel Magic No. 9815836701 (Ex. PW-33), one more of Airtel Magic No. 9815765399 (Ex. PW-34) (hereinafter referred as "M-6") and one of Idea on which 89910411070311326771 was written were recovered.
181. As per the testimony of the witnesses and the personal search memo (Ex. PW-12/U) of accused Harley (A-6), one mobile phone make Siemens with No. 9818278778 with IMEI No. 350421030895092 (hereinafter referred as "M-7") was recovered.
182. According to PW-16 request was made to the service providers Idea - New Delhi, Airtel - New Delhi, Hutch - New Delhi, Airtel - Mohali and Reliance - New Delhi vide applications Ex. PW-16/1 to Ex. PW-16/5 to provide record of incoming and outgoing calls to different mobile numbers M-3, M-7 & M-5, M-1, State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 103 of 104 M-6, M-2, M-4 and 9811391178 (hereinafter referred as "M-8") and on the basis of that request information was sent by the service providers, which was downloaded by PW-7 HC Davinder Singh on the computer and printouts of the call details record were taken, which have been placed on record as Ex. P-1 to Ex. P-7.
183. The call details record shows connectivity of M-1 & M-2, which were recovered at the instance of A-2 from his house, with M-6 (recovered at the instance of A-3 from his house), connectivity of M-7 (recovered in the personal search of A-6) with M-4 (recovered at the instance of A-3 from his house). The call details record also revealed that M-3 and M-5 both were used in the instrument bearing IMEI No. 350686607021830.
184. It was submitted by Ld. Addl. PP for the State that since it is not possible to collect direct evidence to prove conspiracy, the circumstances and the conduct of the accused is required to be taken into consideration. It was argued that accused Harjinder Singh (A-3) and accused Inder Singh (A-4), a previous convict under NDPS Act, were apprehended on the basis of information given by accused Raj Kumar Mehta (A-1), police could reach accused Harley (A-6) only on the basis of information given by accused Harjinder Singh (A-3), call details record of the phones recovered from the accused persons shows connectivity between them and disclosure, discovery and recovery from the accused persons are sufficient circumstances to establish conspiracy.
185. Ld. Defence counsels have assailed the evidence and State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 104 of 104 the material produced by the prosecution on the ground it does not prove necessary ingredients of conspiracy, there is no evidence on record to prove any meeting of mind or agreement between the accused Harjinder Singh (A-3) and Harley (A-6), there is no evidence to show that A-1 to A-6 were party to a conspiracy with each other, none of the phones and the SIM Cards allegedly recovered from the accused are registered in their names, there is no evidence on record to show that the mobile phone allegedly recovered in the personal search of accused Harley (A-6) belong to him and lastly that the Call Details Record (Ex. P-1 to Ex. P-7) has not been duly proved.
186. In "Ram Narain Poply & Others V/s Central Bureau of Investigation & Others, AIR 2003 SC 2748", the Apex Court examined the question as to what constitutes a criminal conspiracy to attract the penal consequences and it was observed that :
62. The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statue required an overt act. The essence of & criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed.
From this, it necessarily follows that unless the statute so requires, no avert act need be done in furtherance of the conspiracy and that the object of the combination need not be accomplished, in order to constitute an indictable offence..........................
(Emphasis supplied) State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 105 of 104
187. It was held by the Apex Court in the above referred judgment that in the case of conspiracy there cannot be any direct evidence and an agreement to do an illegal act in criminal conspiracy can be proved either by direct or circumstantial evidence or by both. It was held by the Apex Court that it is a matter of common experience that direct evidence to prove conspiracy is rarely available, therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
188. It is a settled legal position that recovery of an article and discovery of fact on the basis of disclosure made by the accused are admissible in evidence under Section 27 of the Indian Evidence Act (Reference to "State of NCT of Delhi V/s Navjot Singh Sandhu, Supreme Court 3820"). The testimony of the various witnesses on record, as already discussed show that while accused Raj Kumar Mehta (A-1) was arrested on the basis of a specific information received by PW-15 ACP Ravi Shanker, accused Pradeep Kumar Chawla (A-2) was arrested at the spot with A-1. According to evidence on record, a green bag containing 02 Kilograms of Heroin was handed over by A-1 to A-2 in exchange of a packet containing foreign currency, the recovery to which effect has already been proved. According to the evidence on record accused Harjinder Singh (A-3), Inder Singh (A-4) and Hanif (A-5) were apprehended on the basis of disclosure made by A-1 and specific leads provided by him and contraband was State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 106 of 104 recovered from their possession, which has already been established on record. As per the evidence on record and testimony of the witnesses, accused Harley (A-6) was arrested on the basis of disclosure and specific leads provided by Harjinder Singh (A-3) and contraband was recovered from his possession.
189. Testimony of all the witnesses about the circumstances and consequence of arrest of the accused persons one after other and recovery of contraband from their possession, are not only discovery of facts i.e. about presence of accused persons at a specific place on specific time, but also includes discovery of article i.e. recovery of contraband from their possession. There is nothing on record to suggest or to even indicate that accused persons were not apprehended in the circumstances proved on record and recovery of contraband from their possession has been proved beyond reasonable doubt. Nothing has come in the cross- examination of the witnesses to indicate or even suggest that police could reach the accused persons in the circumstances other than as deposed by the witnesses. This clearly shows complicity between the accused persons to have contraband in their possession under an agreement, which is implied in the facts and circumstances of this case, as discussed above.
190. Besides apprehension of the accused persons and recovery of contraband from their possession on the basis of leads provided by them for one another, prosecution has relied on the CDR to show the meeting of their minds. As per the testimony of the witnesses on record, two mobile phones were recovered from State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 107 of 104 the house of A-2, which were seized vide Memo Ex. PW-12/Q, two mobile phones and four SIM Cards were recovered from the house of A-3 at his instance, which were seized vide Memo Ex. PW-12/R and a mobile phone make Siemens 9818278778 with IMEI No. 350421030895092 was recovered from the personal search of A-6 vide memo Ex. PW-12/U. Witnesses (PW-12, PW-14 & PW-16) of these memo have testified specifically about making of these documents at the time of seizure. It is a matter of record that none of the witnesses have been cross-examined on these memos, and thus their testimony on record about recovery of the mobile phones and the SIM Cards from A-2, A-3 and A-6, as stated by them goes un-assailed. In these facts and circumstances, there is no merit in the arguments of the defence that in the absence of concrete proof of ownership of the instruments and issuance of mobile connections and SIM Cards, they cannot be used against the accused persons. Moreover, one of the connections M-1 is in the name of accused Pradeep Kumar Chawla (A-2).
191. The other piece of evidence brought on record by the prosecution to connect the accused inter-se with commission of offence of conspiracy is the call detailed records of the mobile phones and the SIM Cards recovered from their possession. Testimony of PW-16 SI Ramesh Sharma to the effect that request was made to the General Manager of different service providers (vide Ex. PW-16/1 to Ex. PW-16/5) for call details record of the mobile phones and SIM Cards recovered from the possession of State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 108 of 104 the accused (A-2, A-3 & A-6) has gone totally un-assailed and there is no cross-examination on this aspect. Similarly testimony of PW-7 HC Davinder Singh to the effect that on 05.11.2003 he had sent mail to various service providers for collecting the call details of mobile phone numbers has gone un-assailed as there is no cross-examination of this witness on this fact. Further, testimony of PW-7 HC Davinder Singh has also gone un-assailed on the fact that on 06.11.2003 he took out the printout of the call details (Ex. P-1 to Ex. P-7).
192. It is a settled legal position that telephone call details are admissible under Section 8 & Section 27 of the Indian Evidence Act (Reference to "Sidhartha Vashisht @ Manu Sharma V/s State (NCT of Delhi), AIR 2010 SC 2352). The only contention raised by the defence with respect to this piece of evidence is that the printout of the call details record Ex. P-1 to Ex. P-7) have not been proved in accordance with law in the sense that the electronic record of the calls could be proved only in the manner prescribed under Sub-Section (4) of Section 65-B of the Indian Evidence Act i.e. by issuance of a certificate signed by a competent person. Similar contention raised before the Division Bench of Hon'ble High Court of Delhi in Criminal Appeal No. 461/2008 in "Gajraj Singh V/s State" was rejected. The relevant paras of this decision in the context are :
35. A similar contention was advanced before a Division Bench of this Court in the decision reported as State V Mohd. Afzal & Ors. 2003 VII AD (Delhi) 1 and was repelled by the Court in the following terms:State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 109 of 104
"276. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Sub-clause "d" of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerized operating systems and support systems in industry cannot be moved to the Court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print out. Sub-section (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Sub- section (2). Thus compliance with Sub-section (1) and (2) of Section 65B is enough to make admissible and prove electronic records. This conclusion flows out, even from the language of Sub-section (4). Sub-
section (4) allows the proof of the conditions set out in Sub-section (2) by means of a certificate issued by the person described in Sub-section 4 and certifying contents in the manner set out in the sub-section. The sub-section makes admissible an electronic record when certified that the contents of a computer print out are generated by a computer satisfying the conditions of Sub-Section 1, the certificate being signed by the person described therein. Thus, Sub-section (4) provides for an alternative method to prove electronic record and not the only method to prove electronic record." (Emphasis supplied).
36. In the decision reported as State v Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 the Supreme Court affirmed the afore-noted view of this Court in the following terms:
".....It may be that the certificate containing the details in sub-section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 110 of 104 to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 and 65."
37. In view of the afore-noted dictum of law, we find no merit in the submission of the learned senior counsel that the call records Ex. PW-22/A and Ex. PW-22/B have not been proved in accordance with law.
(Emphasis supplied)
193. In view of the above referred decision, there is no merit in the contention of the defence that call details record produced (Ex. P-1 to Ex. P-7) are not admissible as they have not been proved in accordance with law.
194. CDR shows connectivity of M-1 & M-2 (both recovered at the instance of A-2) with M-6 (recovered at the instance of A-3). CDR shows connectivity of M-4 (recovered at the instance of A-3) with M-7 (recovered in the personal search of A-6). CDR also hows connectivity between M-3 (recovered at the instance of A-3) with M-7. The time of connectivity is the period immediately before 20.09.2003. Therefore, clearly shows complicity amongst A-2 and A-3 and also amongst A-3 and A-6.
195. The call details record on record shows connectivity of M-1 & M-2 (both recovered at the instance of A-2) with one No. 9811391178 (M-8). IMEI Number of the instrument in which M-1 was used is reflected in the record as 35013889162687. Though, M-8 has not been recovered but it is noteworthy that it was operating from the same IMEI Number from 26.08.2003 till 19.09.2003 and there were number of international calls made and received at M-8 between 28.08.2003 to 05.09.2003. This indicates State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 111 of 104 connection or possession of M-8 with A-2. Considering the number of international calls made and received at M-8, raises serious doubts about the activities of A-2, which will also have a bearing on the activities of other accused keeping in view their complicity with each other. The phone call details show that accused were in touch with each other and their association is an important piece of circumstantial evidence about the criminal conspiracy (Reference to "Sidharth Vashisht's case (Supra).
196. The decisions referred in defence of the accused persons, "Bhagwan Swaroop V/s State of Maharashtra, AIR 1965 SC 682" & "Keshav V/s State of Maharashtra (2007) 13 SCC 284" do not help the accused person, because there is sufficient circumstantial evidence on record against the accused besides recovery of incriminating articles from their possession including the contraband.
197. The evidence on record clearly shows complicity of all the accused persons to possess the contraband in order to commit offence under the NDPS Act, as a party to a criminal conspiracy (Reliance is placed on the decision of Hon'ble High Court of Delhi dated 05.11.2009 in Criminal Appeal Nos. 694/2005 and 779/2005 titled Vimal Kumar Bahl V/s DRI and Surender Raj Singh V/s DRI). The total wright of Diacetylmorphine recovered from the possession of accused persons as a party to a criminal conspiracy comes to 1676.2 Kilograms, which is a commercial quantity as per the Entry No. 56 of the Table notified in the NDPS Act vide SO State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 112 of 104 No. 1055(E) dated 19.10.2001.
198. On the basis of evidence on record, all the six accused are held guilty for committing the offence punishable under Section 29 of the NDPS Act. In addition, accused Pradeep Kumar Chawla (A-2), accused Harjinder Singh (A-3) and accused Mohd. Hanif (A-5) are held guilty for committing the offence punishable under Section 21(c) of the NDPS Act and accused Inder Singh (A-4) and accused Harley (A-6) are held guilty for committing the offence punishable under Section 21(b) of the NDPS Act.
Announced in the open Court (Santosh Snehi Mann) on 26th April, 2011 Special Judge, NDPS (Central) Tis Hazari Courts, Delhi State V/s Raj Kumar Mehta & Others; FIR No. : 43/2003; PS : Sarai Rohilla Railway Station Page 113 of 104