Delhi District Court
Narayanaswamy Ravishankar vs . Asstt. Director, Directorate Of on 8 February, 2018
IN SPECIAL COURT, NDPS ACT (CENTRAL)
TIS HAZARI COURTS, DELHI
SC No.07/2014 FIR No.26/2013
CIS No. 27588/2017 PS Special Cell
CNR No. DLCT010005292013
State
Versus
1. Khumba Ram @ Fouji,
S/o Sh. Hira Ram,
R/o Vill. Kalewa,
Teh. & P.S. Pachpadara,
Distt. Barmer, Rajasthan ......A1
2. Ajay Kaushal,
S/o late Sh. Om Dutt,
R/o Plot no.13A, DDA Market,
Nangal Township Distt. Ropar, Punjab. ......A2
3. Hanuman Ram @ Haria,
S/o Sh. Hira Ram,
R/o Vill Patial, PO Sajiyal,
Teh. & PS Pachpadera,
Distt. Barmer, Rajasthan. ......A3
Date of Institution : 08.10.2013
Date of start of Arguments : 21.12.2017
Date of concluding the arguments : 29.01.2018
Date of Judgment : 07.02.2018
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Court of Sh. Vinod Kumar, ASJ (Central): DELHI
J U D G M E N T
Brief facts of the case are that team of Inspector Sanjay Nagpal was
tracking one suspect Khumba Ram (A1) of Rajasthan. On 15.06.2013,
he received a secret information that suspect Khumba Ram, who was
involved in inter state smuggling of contraband, would come near Tis
Hazari Courts from Rajasthan in a bus of Jain travels. Inspector Sanjay
Nagpal lodged DD no.2 at 7.05 a.m. and directed SI Karan Singh and Ct.
Sandeep to develop secret information while going near Tis Hazari
Courts. The secret informer identified Khumba Ram, who hired a taxi
Indica bearing registration no.CH 04A 1391 from Classic Travel Agency,
Kashmere Gate. As per instructions of Inspector Sanjay Nagpal, SI Karan
Singh and Ct. Sandeep negotiated with Khumba Ram (A1) for sharing the
taxi for Chandigarh on shared fare. SI Karan Singh and Ct. Sandeep were
dropped by Khumba Ram in Ambala from the taxi and he proceeded
towards Nangal. Inspector Sanjay Nagpal alongwith his team was
following his taxi in a Govt. vehicle Tavera bearing no.DL 1CJ 7367.
Khumba Ram reached Abhinandan Lodge near Railway Station, Nangal
where he took accommodation. The police team under the leadership of
Inspector Sanjay Nagpal reached outside Abhinandan Lodge and he
directed his two members of the team namely Ct. Gurdeep and ASI Rajbir
to take a room in the said lodge. In the morning of 16.06.2013, Inspector
Sanjay Nagpal directed SI Suresh Chand to go inside the lodge, meet ASI
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Rajbir and Ct. Gurdeep to develop the information. A close watch was
kept on suspect Khumba Ram. On 16.06.2013 at about 6.30 a.m., SI
Suresh Chand was present outside the door of the room of suspect
Khumba Ram when SI Suresh Chand overheard that suspect Khumba
Ram was talking on phone that "maal is pure and it is highly intoxicated"
& " due to big quantity, they would deliver the consignment in the late
hours in Delhi near ISBT". This observation confirmed that suspect
Khumba Ram deals in narcotics and he would deliver the consignment to
the customer in Delhi. SI Suresh Chand immediately narrated the facts to
Inspector Sanjay Nagpal. As some narcotics was expected to be
recovered, hence, for the compliance of provisions of Section 42 NDPS
Act, DD No.20 was lodged by making a phone call from Punjab. At about
8.30 a.m., one Ajay Kaushal (A2) reached Abhinandan Lodge and straight
away went into the room of suspect Khumba Ram. SI Suresh Chand
again overheard their talks who were planning to go to Delhi on the
Innova Car of Ajay Kaushal. Both Khumba Ram and Ajay Kaushal
proceeded to Delhi on Innova car bearing no.CH 01 53 49. The said
Innova car was chased. Both reached Delhi in Innova car and after
roaming here and there in Delhi, ultimately, at about 11.25 p.m. on
16.06.2013, they reached at Ring Road in front of Tibettan Market,
Monastry, near ISBT, Delhi. Both Khumba Ram and Ajay Kaushal got
down from the Innova car. Within few minutes, one Hanuman (A3) met
Khumba Ram and handed over a bag to him. Suspect Khumba Ram (A1)
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gave the bag to Ajay Kaushal and in the meantime, they were over
powered with the bag. All the three were duly served with notices U/s 50
NDPS Act. Thereafter, the search of the bag was conducted in front of
them. In the bag, two packets and a used towel were recovered. Both
the packets were completely wrapped with plastic tape. On asking, all
the three disclosed that there is opium inside the packets. One packet
was taken out and given Sr. no.1 and it was weighed which come out to
be 5 kgs. The packet Sr.no.1 was cut with the help of blade and it was
found that opium was packed in a transparent polythene which was
wrapped in old news paper and then it was wrapped with plastic tape.
Two samples of 50 grams each were separated from Sr.no.1 and packed
in a small transparent polythene bags. Both samples were given Sr.no.1A
and 1B. Packet Sr.no.1 and samples Sr.no.1A & 1B were packed
separately in white cloth and were sealed with the seal of SC and the
entry regarding the recovery was made in form FSL. After that second
packet was taken out and given Sr.no.2 and it was weighed which come
out to be 4.5 kgs. The packet Sr.no.2 was cut with the help of blade and
it was found that opium was packed in a transparent polythene which
was wrapped in old newspaper and then it was wrapped with plastic
tape. Two samples of 50 grams each were separated form Sr.no.2 and
packed in a small transparent polythene bags. Both samples were given
Sr.no.2A and 2B. Packet Sr.no.2 and samples Sr.no.2A & 2B were
packed separately in white cloth and were sealed with the seal of SC and
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the entry regarding the recovery was made in form FSL. Thereafter, both
packets Sr.no.1 & 2 alongwith with the recovered towel were put in the
recovered bag and the bag was packed in a piece of cloth and sealed with
the seal of SC. Form FSL was completed at the spot and the seal after
used was handed over to Inspector Sanjay Nagpal. These exhibits
alongwith FSL form was taken into police possession through seizure
memo. All this legal proceeding was conducted by SI Suresh Chand
through seizure memo. After that SI Suresh Chand prepared rukka and
handed over the rukka, seizure memos and exhibits to HC Ashok Kumar
and directed him to produce the rukka alongwith exhibits and seizure
memos before SHO for registration of the case. HC Ashok Kumar
departed from the spot at 2.30 a.m. on 17.06.2013. Rukka alongwith
exhibits and seizure memo were produced before Inspector D.K. Sharma,
SHO who put his counter seal on the exhibits and deposited the exhibits
in the malkhana and after due process of law, the present case was
registered. Further investigation was entrusted to SI Karan Singh. SI
Karan Singh reached at the spot and SI Suresh Chand handed over to him
the documents of the case and produced accused Khumba Ram, Ajay
Kaushal and Hanuman before him.
Investigation conducted by SI Karan Singh
On 15.06.2013, SI Karan Singh (PW15) was posted as SI at Special
Cell, Northern Range, Sector 6, Rohini, Delhi. On that day, Inspector
Sanjay Nagpal instructed him to go to Jain Travel, Mori Gate, where one
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secret informer would meet him. The secret informer would point out on
suspect and he had to chase him. On the instruction of Inspector Sanjay
Nagpal, SI Karan Singh alongwith HC Ashok and Ct. Sandeep left the
office of the Special Cell at around 7.00 a.m. vide DD no.2 and reached
outside the office of Jain Travel, Mori Gate at around 8.00 a.m. where
secret informer met him. Secret informer pointed out one person who
reached there after 5 minutes as a suspect. After pointing out the
suspect, secret informer left. The suspect started moving towards ISBT
Kashmere Gate side. They also started following him. The suspect
reached at ISBT, where Haryana Roadways buses use to station. On that
day, Haryana Roadways employees were on strike. Thereafter, suspect
came to Classic Motor Travels, Kashmere Gate, where suspect hired a taxi
Make Indica bearing registration no.CH 04 A 1391 and the said suspect
was dealing with the travel agency for going Nangal, Punjab. SI Karan
Singh told all the aforesaid facts to Inspector Sanjay Nagpal gathered by
him on mobile phone. Inspector Sanjay Nagpal instructed him to leave
HC Ashok. He further directed SI Karan Singh to go with suspect
alongwith Ct. Sandeep. He met suspect and asked him to share the fare
of the taxi as he had to go to Ambala with Ct. Sandeep. On his proposal,
accused Khumba Ram readily agreed to share the said taxi. Thereafter,
he alongwith accused Khumba Ram and Ct. Sandeep sat in the said taxi.
They got the said taxi stopped at Sonepat where he alongwith Ct.
Sandeep and Khumba Ram took the lunch on one dhaba. On that dhaba,
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SI Karan Singh made a call to Inspector Sanjay Nagpal and informed
about the taxi number and their position. While SI Karan Singh was
talking with Inspector Sanjay Nagpal, he was at some distance from
accused so that he could not hear their conversation.
After taking lunch at Sonepat, SI Karan Singh alongwith Ct.
Sandeep and accused Khumba Ram left Sonepat in the aforesaid taxi.
Before reaching Ambala, they again got the said taxi stopped at one
dhaba where they took tea. On that dhaba, SI Karan Singh again made
call to Inspector Sanjay Nagpal and informed about their position. While
SI Karan Singh was talking to Inspector Sanjay Nagpal, he was at some
distance from accused Khumba Ram so that he could not hear their
conversation. After taking tea, they sat in the aforesaid taxi and travelled
to Railway Station, Ambala where he alongwith Ct. Sandeep alighted
from the said taxi. SI Karan Singh had given his share of the fare of taxi
to accused Khumba Ram. He again made call to Inspector Sanjay Nagpal
and told about their position and other facts. He alongwith Ct. Sandeep
stayed in Ambala.
Next day i.e. 16.06.2013 at around 4.00 a.m., he made call to
Inspector Sanjay Nagpal and talked with him who called SI Karan Singh
and Ct. Sandeep at Nangal Railway Station. On his asking, he alongwith
Ct. Sandeep reached there at around 7.00 a.m., where Inspector Sanjay
Nagpal alongwith his team met them in front of Abhinandan Lodge, near
Nangal Railway Station. Inspector Sanjay Nagpal told him that accused
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Khumba Ram is involved in the trafficking of drugs. While he was
outside Abhinandan Lodge alongwith other members of the team, one
Innova Car bearing registration no.CH 01 AC 5349 came there. Accused
Khumba Ram came outside Abhinandan Lodge and sat in the said Innova
car and left the place alongwith driver of the said car. Thereafter, police
officials also sat in the government vehicle make Tavera bearing
registration no.DL 1CJ 7367 and left there. He also sat in the said Tavera
car and started following the said Innova car and covered 200 mtrs
distance from Abhinandan Lodge, the police officials saw that said Innova
car stopped and two other persons boarded the said Innova car with
accused Khumba Ram. Thereafter, the said Innova car started running
towards Ambala side and they also followed the said Innova car. They
reached Panipat where the two persons alighted from the said Innova car
at around 2.15 p.m. On the direction of Inspector Sanjay Nagpal, he (i.e.
SI Karan Singh) alongwith SI Ramesh Dabas, ASI Rajbir, HC Ajay, Ct.
Sandeep and Ct. Gurdeep alighted from the said Tavera car. Inspector
Sanjay Nagpal instructed them to follow the aforesaid two persons who
alighted from Innova car. They followed aforesaid both the persons and
made inquiries from them but nothing incriminating was found from both
of them. After that he made call to Inspector Sanjay Nagpal and
informed about the inquiries conducted by them with aforesaid both the
persons at Panipat. On the instructions of Inspector Sanjay Nagpal, he
alongwith the aforesaid police officials came to Delhi and reached their
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office.
On the intervening night of 16/17.06.2013, while SI Karan Singh
was present in the office at around 12.15 a.m., he was directed by the
Duty Officer of Special Cell NR to reach Tibettan Market near ISBT as he
was called by Inspector Sanjay Nagpal. On the direction of Duty Officer,
he reached there at around 2.00 a.m., where Inspector Sanjay Nagpal, SI
Suresh, HC Ashok, HC Pawan, Ct. Devender, HC Krishan alongwith driver
of Tavera Car met him. Accused Khumba Ram, Ajay Kaushal and
Hanuman Ram, present in the court today, were also there in the custody
of police officials. At that time, SI Suresh Chand was writing the rukka.
After writing it, the same was handed over to HC Ashok Kumar. SI
Suresh Chand also handed over the sealed case property & aforesaid
Innova car, FSL form and copy of the seizure memo to HC Ashok and sent
him to PS Special Cell, Lodhi Colony with the direction that he had to
hand over the case property, FSL form and copy of the seizure memo to
SHO whereas he had to hand over the rukka to the Duty Officer.
On the direction of Inspector Sanjay Nagpal, further investigation
of this case was assigned to him (i.e. SI Karan Singh), SI Suresh Chand
handed over the document i.e. seizure memos etc. to him. SI Karan Singh
took the custody of the accused persons. He prepared the site plan
Ex.PW15/A at the instance of SI Suresh Chand. He interrogated accused
Khumba Ram and arrested him vide memo Ex.PW8/E and conducted his
personal search vide personal search memo Ex.PW8/H. During the
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personal search of accused, original notice U/s 50 NDPS Act Ex.PX with
the other articles was recovered. He interrogated accused Ajay Kaushal
and arrested him vide memo Ex.PW8/F and conducted his personal
search vide personal search memo Ex.PW8/J. During the personal search
of accused, original notice U/s 50 NDPS Act Ex.PX1 with the other
articles was recovered. He interrogated accused Hanuman Ram and
arrested him vide memo Ex.PW8/G and conducted his personal search
vide personal search memo Ex.PW8/K. During the personal search of
accused, original notice U/s 50 NDPS Act Ex.PX2 with the other articles
was recovered. He interrogated the accused persons Khumba Ram, Ajay
Kaushal and Hanuman Ram in detail separately and recorded their
disclosure statements Ex.PW8/M, Ex.PW8/N and Ex.PW8/O respectively.
At around 5.10 a.m., HC Ashok returned there with copy of the FIR of the
present case and original rukka and handed over the same to him. He
mentioned the FIR number on the document prepared earlier. When he
prepared the site plan, after that he recorded the statement of SI Suresh
Chand, thereafter, Inspector Sanjay Nagpal and SI Suresh Chand left the
spot. After receiving the FIR, original rukka and conducted formal
necessary proceedings. He alongwith accused persons and other police
party team left the spot for the office Special Cell, Northern Range at
around 5.40 a.m. and they reached office of Special Cell at around 6.15
a.m. and made arrival entry in DD register.
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SI Karan Singh forwarded the report U/s 57 NDPS Act Ex.PW14/E
with regard to arrest of the accused persons to ACP Special Cell, Northern
Range. The accused persons were interrogated by SHO Special Cell and
ACP Special Cell, NR. On 17.06.2013, accused persons were produced
before the court after their medical examination.
He got police custody remand of accused Khumba Ram upto
22.06.2013 whereas accused Ajay Kaushal was remanded to the police
custody upto 20.06.2013. Accused Khumba Ram was taken to Rajasthan
by SI Suresh Chand and Inspector Sanjay Nagpal alongwith other police
official. He took accused Ajay Kaushal to Una, Bilaspur in Himachal
Pradesh and Nangal (Punjab) where he made search of associates of
accused Ajay Kaushal namely Gogi and Achar Singh but they could not be
found on the aforesaid place. He interrogated owner of Abhinandan
Lodge Sh. Rajiv Kumar and collected the copy of the relevant register
Ex.PW18/B (old number Ex.PW3/B). The same was seized vide memo
Ex.PW18/A (old number Ex.PW3/A). From Nangal, he alongwith
accused Ajay Kaushal and other police official returned to Delhi. Accused
Ajay Kaushal was produced before the court and he was remanded in
judicial custody.
During investigation, he interrogated Ram Singh, Manager, Classic
Travels, Kashmere Gate, Delhi and collected the bill Mark Ex.PW old
number PW13/A which was seized vide seizure memo Ex.PW old
number Ex.PW13/B.
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During the personal search of accused persons, their mobile phones
were recovered with the other items. He collected the CDR of the mobile
phone used by accused Khumba Ram and Ajay Kaushal. During
investigation, he found that accused Khumba Ram was using mobile
phone was in the name of Smt. Leela Devi W/o Karna Ram. He collected
the CAF (Ex.PW5/A and Ex.PW5/B), CDR (Ex.PW5/C) and certificate U/s
65 B Evidence Act (Ex.PW5/D) of the same. During investigation, he
found that accused Ajay Kaushal was using the mobile phone which was
in the name of his wife Ms. Reeta Kaushal. He collected the CAF
(Ex.PW6/A) and CDR (Ex.PW6/B) with certificate U/s 65 B Evidence Act
(Ex.PW6/C) of the same.
During the investigation, name of one Shankar Lal was surfaced as
supplier of the drug to the accused persons. He also collected CDR of his
mobile phone as disclosed by accused Khumba Ram. He made search of
accused Shankar Lal but he was not available. He got issued NBW
against him.
During investigation, he collected DD no.2, 11, 13. The same are
Ex.PW15/B, Ex.PW15/C and Ex.PW15/D respectively.
On 24.06.2013, he got sent the sealed sample pullanda to FSL,
Rohini through HC Pawan Kumar.
During investigation, he recorded the statements of witnesses as
and when required. After completion of investigation, he prepared the
chargesheet and filed before the court through SHO/Inspector
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concerned.
Later on accused Shankar Lal Naik S/o Bhanwar Lal R/o Village
Mahesh Puria, PS Javad, District Nimach, Madhya Pradesh was declared
'proclaimed offender' vide order dated 29.04.2014 passed by Ms. Shail
Jain, Ld. Special Judge II, NDPS, Central District, Delhi. Ordersheet
dated 25.03.2015, shows that accused Shankar Lal Naik was arrested and
produced before the Court. On 01.05.2015, the supplementary charge
sheet was filed against him. After hearing arguments, he was discharged
by Sh. Rajiv Mehra, Ld. Special Judge, vide order dated 22.05.2015.
Result of FSL Report
The FSL report was filed in the court on 29.3.2014 and the copies of
the same were supplied to the accused persons. As per FSL report, which
is admissible per se under Section 293 CrPC, the sample Ex.1A and Ex.1B
were found to contain morphin 1.84 percent and 6.9 percent.
Charge
After hearing arguments, a charge U/s 29 of NDPS Act was framed
(as amended on 17.12.2014) against all the accused persons for entering
into a conspiracy for supply of opium in the area of Delhi. They were also
charged U/s 18 of NDPS Act having in conscious possession of 9.5 kg of
opium. All the accused persons pleaded not guilty and claimed trial.
Prosecution Evidence
There was some repetition of number of witnesses and for the
purpose of convenience, some of them have been renumbered. It is also
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 13
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found that ASI Khem Singh has been examined twice as PW2 as well as
PW3. Therefore, although only 17 witnesses are examined but
prosecution witnesses have been assigned the numbers from PW1 to
PW18.
The testimonies of 17 prosecution witnesses in brief is described as
under :
PW1 ASI Naval Kishore proved a DD entry no.14 Ex.PW1/A,
perusal of which shows that Inspector Sanjay Nagpal asked him on phone
to send the IO kit and weighing scale through HC Pawan Kumar and HC
Ashok Kumar. He testified that both of them alongwith IO kit and
weighing scale left on motorcycle.
PW2 SI Naresh Kumar testified that at about 6.55 a.m. on
16.06.2013, he sent an information through Inspector Sanjay Nagpal on
phone which was recorded in DD no.20 Ex.PW2/A. He further testified
that he had informed an information at about 12.15 a.m. from Inspector
Sanjay Nagpal on telephone which was recorded as DD no.16 Ex.PW2/B.
PW3 SI Khem Singh, PS Special Cell was Duty Officer from 9.00
a.m. to 5.00 p.m. on 15.06.2013 and he testified that at about 10.10 a.m.,
Inspector Sanjay Nagpal informed him through intercom regarding a
secret information and he communicated the same to SI Karan Singh and
Ct. Sandeep who had already left the Special Cell vide DD no.2. He also
asked SI Karan Singh and Ct. Sandeep that they should go to Chandigarh.
PW3/X recorded DD no.8 Ex.PW3/A. (This witness was also examined
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as PW2 with a new number PW17).
PW4 ASI Devappa recorded FIR Ex.PW4/A on receiving a rukka
through HC Ashok Kumar. He made an endorsement on the rukka
Ex.PW4/C.
PW5 Israr Babu, Nodal Officer from Vodafone Mobile Service
testified as under :
"I am posted as Alternate Nodal Officer at Vodafone Mobile Service Ltd. I
have been directed by the company to appear before this Hon'ble Court along
with the relevant documents, pursuant to receipt of summons in name of Sh.
Deepak, Nodal Officer. Sh. Deepak has left the services of the company and
his present whereabouts are not known.
I have brought the certified copy of customer application form pertaining
to connection no. 9610878068 which is in name of Leela Devi W/o Karna
Ram with copy of the ID proof. (The original CAF is not traceable in the
records). The CAF is Ex. PW5/A bearing my signatures at point A, copy of
the ID proof is Ex. PW5/B bearing my signatures at point A (Mode of proof
of both the exhibits has been objected by counsels for the accused persons).
I have also brought the certified copy of call details of the said number
for the period 01.06.2013 till 17.06.2013 (Rajasthan Circle and the
supportive certificate u/s 65B of Evidence Act. The call details record is Ex.
PW5/C and the certificate is Ex. PW5/D both bearing my signatures at
points A.
I have seen the reply of Sh. Anuj Bhatia dated 29.08.2013 written to SI
Karan Singh, Special Cell, (NR) bearing signatures of Sh. Anuj Bhatia the
then Nodal Officer at point A which is Ex. PW5/F (colly) along with the
documents attached. (Mode of proof of the exhibits has been objected by
counsels for the accused persons)."
PW6 Raj Kumar SDE (CC1) Chandigarh testified as under :
"Presently, I am working as a SDE(CCI), BSNL, Sector 49C, Chandigarh.
Today, I have brought the summoned record which consists of Customer
Application Form (CAF) and copy of CDRs for the period from 01.06.2013 to
17.06.2013 in respect of mobile phone no.9463516334 subscribed in the
name of Reeta Kaushal W/o Sh. Ajay Kaushal, R/o H.No.13, Atta Market,
Nangal, Teh. Anandpur Sahib, District Ropar. Copy of the CAF is Ex.PW6/A
(OSR) (running into 2 pages) and separately ID proof on third page and copy
of the CDR is Ex.PW6/B supported by certificate U/s 65B of Evidence Act.
Certificate is Ex.PW6/C bearing my signatures at point A.
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 15
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On receipt of notice/letter dated 23.08.2013. Sh. M.L. Sharma, Divisional
Engineer, Admn. had supplied copy of all these documents to SI Karan Singh
of Special Cell. Said letter is Mark X. The said letter alongwith its annexures
are Marked X (colly.), bearing signatures of Sh. M.L. Sharma at point A."
PW7 SI M. Baxla testified as under :
"On 17.06.2013, I was posted at PS Special Cell as MHC(M). On that day,
Inspector D.K. Sharma, SHO Special Cell had deposited one Innova Car
no.CH 01 AC 5349 with its key and five pullandas alongwith two seizure
memos and respective FSL forms in case FIR No.26/13. I deposited the said
articles vide entry at Sr.no.2132 in the malkhana register. All the pullandas
were duly sealed with the seal of SC & DKS and were bearing the case
particulars. The personal search articles of accuse Ajay Kaushal, Khumba
Ram and Hanuman were deposited on the same day by SI Karan Singh in
connection with the abovesaid case FIR.
On 24.06.2013, I had given two pullandas, Sr.no.1A and 2A, alongwith
FSL form to FSL Rohini to HC Pawan Kumar for depositing the same at the
FSL Rohini for their examination vide RC no.120/21/2013. Today, I have
brought the RC register as well as the malkhana register. Copy of entry
no.2132 in malkhana register is Ex.PW7/A bearing signatures of the SHO at
point A, the entry no.2133 is Ex.PW7/A1 (OSR).
The copy of RC no.120/21/2013 is Ex.PW7/B. HC Pawan Kumar, on his
return from FSL Rohini, gave the acknowledgment of the case acceptance of
FSL. The RC register contains the same and copy of which is Ex.PW7/C.
The factum of taking of the case property pullanda to FSL was mentioned by
me in Ex.PW7/A on my endorsement at point B bearing my signatures at
point A.
On 04.03.2014, two sealed pullandas duly sealed with the seal of FSL
Rohini pertaining to this case were deposited by SI Kuldeep in the malkhana
and I had made the endorsement in this regard on Ex.PW7/A at point C
bearing my signatures at point A1 (Original register seen and returned).
As long as pullandas remained in my possession, the seals remained intact
and no tampering affected on the same."
PW9 ACP Satyavir Singh testified that on 16.06.2013, he was
posted as ACP, Norther Range, Special Cell, Delhi and that Inspector
Sanjay Nagpal gave a specific information to Duty Officer that they were
following one Khumba Ram and got recorded DD no.20 with Duty Officer
of PW9's office. This DD entry was produced before him. After seeing it,
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PW9 made an endorsement on it. On 17.06.2013, a report U/s 57 NDPS
Act was prepared by SI Suresh Chand about recovery of 9.5 kg opium and
another report of the arrest of the accused persons was prepared by SI
Karan Singh which was produced before him.
PW8 Pawan Kumar and PW11 ASI Ashok Kumar, both had
proceeded on 16.06.2013 alongwith weighing machine and IO kit bag on
a motorcycle and reached at the spot where Inspector Sanjay Nagpal
alongwith other staff were present and they also became part of the
raiding party.
PW10 Inspector Sanjay Nagpal testified as under :
"On 15.6.2013 I was posted at Special Cell, Northern Region. On that day
at about 7.00 am, one secret informer came to me and informed that one
person namely Khumba Ram who is involved in the interstate smuggling of
contraband would come near Tis Hazari Courts from Rajasthan in a bus of
Jain Travels.
On this information, I lodged DD No.2 at 7.05 a.m. and
disclosed about the secret information to the Sr. officers. I directed SI Karan
Singh and Ct. Sandeep to develop the secret information by going near Tis
Hazari Courts taking the informer alongwith them.
At about 10.00 am, I received telephonic information from SI
Karan Singh that with the help of informer Khumba Ram has been identified
and was preparing for going to Nangal from the place behind Tis Hazari
Courts. I directed SI Karan Singh to follow Khumba Ram.
At about 10.30 am, I alongwith my staff proceeded
outstation towards Nangal after informing the Sr. officers and taking their
permission. We left the office of Special Cell in the Govt. vehicle of make
Tavera bearing registration no. DL1CJ7367. On the way, I directed SI Karan
Singh and Ct. Sandeep to stop following Khumba Ram and to remain at
Ambala. The vehicle hired by Khumba Ram was already been identified by
us by that time and I alongwith my team started following the vehicle from
Ambala towards Nangal. The vehicle was of make Indigo silver colour but I
do not remember its complete number except that the number belong to
Chandigarh as its initials were CH.
At about 7.00 pm, we reached at Nangal while following the
vehicle of Khumba Ram. Khumba Ram alighted from the vehicle and went
inside Abhinandan Lodge situated opposite Railway Station Nangal. ASI
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 17
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
Rajbir and Ct. Gurdeep who were members of my team were directed by me
to take a room in Abhinandan Lodge and to remain there. I alongwith rest of
the team members remained outside the Abhinandan Lodge.
In the morning I directed SI Suresh Chand one of member of
my team to go inside the Lodge and to meet ASI Rajdeep and Ct. Gurdeep
and to develop further information regarding Khumba Ram.
At about 6.35 am i.e. on 16.6.2013, SI Suresh Chand told me
that Khumba Ram is involved in the trafficking of narcotic substances. On
receipt of such information, I lodged DD in this regard at the office of Special
Cell telephonically. After some time, one Innova car came outside the
Abhinandan Lodge and one person later identified as Ajay Kaushal went
inside the Lodge after alighting from the said vehicle.
SI Suresh made a telephone call to me after some time and
told me that Khumba Ram and the other person i.e. Ajay Kaushal would go
to ISBT, Delhi as the person namely Shankar could not reach Nangal.
At about 9.00 am, Khumba Ram and Ajay Kaushal came
outside the Lodge and via said Innova Car proceeded towards Delhi. I started
following them with my team in the said Govt. vehicle. After passing through
some distance, two persons took a lift in the Innova car and we kept on
following the Innova car.
At about 2.15 pm, the two persons who had taken lift in the
Innova Car got down from the Innova car at Panipat. I asked few of my team
members to follow the said person and deboarded them from Govt. vehicle
at Panipat and continued to follow Innova car of the accused. At G.T. Karnal
Road, Innova Car was stopped by the accused persons. I also got stopped the
Govt. Vehicle at some distance from the Innova Car. I asked three passersby
to join the raiding party disclosing them about the facts. One of them told
his name and address but the other two did not tell the same to me. All
three of them refused to join the raiding party on their genuine difficulties.
After sometime, the Innova Car again started and we
continued to follow it. The car kept on moving in the area of North Delhi
and finally at 11.25 pm, the Innova car stopped near Tibetan Monestry
situated near ISBT Kashmere Gate. In the meantime I made a telephone call
at the office of Special Cell and requested for sending IO kit to me.
When we had reached near Tibetan Monestary the IO kit
was brought by HC Ashok and HC Pawan.
From the Innova Car, Khumba Ram and Ajay Kaushal came
out. In the meantime, I search for the public persons to join the raiding party
but there was no public person found moving in the said area though
vehicles were passing by in high speed. After sometime, one person on foot
having bag on his back came towards Khumba Ram and Ajay Kaushal and
gave the said bag to Khumba Ram. I gave the signal to my team members to
surround all three of them and apprehend them.
SI Suresh Chand was directed by me to initiate proceedings.
On inquiry, they disclosed their name as Khumba Ram who was earlier
identified by the informer, Ajay Kaushal who was driving the vehicle and
Hanuman @ Hariya being the person who had given the bag to Khumba
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 18
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
Ram.
During interrogation, they stated that they were having
opium in their possession.
SI Suresh Chand told all three of them separately in
vernacular language (Hindi) that their search is required to be made and
they have a right to get their search in presence of Magistrate/Gazetted
Officer who can be arranged even at the spot. It was also told by SI Suresh
Chand to all of them that prior to their search they can take the search of
every member of the raiding party. They refused to exercise their right of
search in presence of the Magistrate or Gazetted Officer and they did not
take the search of the police persons.
SI Suresh Chand prepared three separate notices u/s 50 of
NDPS Act and served the same on respective accused persons. The original
notice were kept by them and they gave a written reply of their refusal on
the carbon copies.
SI Suresh Chand took search of the accused persons one by
one but nothing incriminating was recovered from their person. On checking
the bag in possession of accused Khumba Ram which was of Khaki Colour
the front two small pockets were found empty, however, after opening the
long chain, it was found containing two big packets wrapped inside old
towel. The packets were found fully covered with light brown colour
adhesive tape. SI Suresh Chand gave S.No.1 and 2 to the said packets.
Packet bearing S.No.1 was opened by putting a small cut. It was found
containing a sticky substance like grease, blackish in colour which was
smelling like opium. SI Suresh Chand weighed the said packet and found it
to be of 5 K.G. SI Suresh Chand separated two separate samples of the
opium from said packet and kept them into separate small polythene bags.
The said polythene bags were converted into cloth pullanda by SI Suresh
Chand and were given S.No.1 A and 1B and were sealed with the seal of SC.
The remaining opium in the packet was also converted into cloth pullanda
and it was sealed with the seal of SC. Similarly the packet bearing S.No.2
was also checked by putting a cut on it from the physical appearance and
smell it was also found to be containing opium. SI Suresh Chand weighed
the said packet and found it to be of 4.5 K.G. SI Suresh Chand separated two
separate samples of the opium from said packet and kept them into separate
small polythene bags. The said polythene bags were converted into cloth
pullanda by SI Suresh Chand and were given S.No.2 A and 2B and were
sealed with the seal of SC. The remaining opium in the packet was also
converted into cloth pullanda and it was sealed with the seal of SC.
The pullanda bearing serial no.1 and 2 were wrapped in the
recovered towel and was kept in the recovered bag. The bag was also
converted into cloth pullanda and was sealed with the seal of SC.
SI Suresh Chand filled up the FSL form and seized the case
property with samples with FSL form by preparing a seizure memo. Seal
after use was given by SI Suresh Chand to me. SI Suresh Chand prepared
Tehrir and gave it to HC Ashok for getting the case registered at PS Special
Cell. SI Suresh Chand handed over the pullanda of bag and samples bearing
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 19
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
S.No.1A, 1B, 2A and 2B with FSL form alongwith copy of seizure memo to
HC Ashok for taking it to SHO of PS Special Cell for necessary proceedings
under the provision of NDPS Act. The Innova Car of accused persons was
also seized by SI Suresh Chand and it was also sent to PS Special Cell
through HC Ashok with the Tehrir and case property.
In the meantime, I had informed office of Special Cell
telephonically for sending some other official for investigation of the case
due to recovery of opium. SI Karan Singh who had already reached the
office of Special Cell from Nangal was deputed and instructed to reach the
site on the instructions of Sr. officers. SI Karan Singh reached at the spot
prior to leaving the spot by HC Ashok.
SI Suresh handed over the custody of the accused persons
alongwith the relevant documents prepared by him so far to IO SI Karan
Singh. SI Karan Singh prepared the site plan of the place of recovery on
pointing out of SI Suresh. IO SI Karan Singh recorded statement of SI Suresh
and relieved him from the investigation. I alongwith SI Suresh left the spot
for office leaving Govt. vehicle and rest of the staff at the spot.
On 17.6.2013, SI Karan Singh recorded my statement u/s
161 Cr.P.C in the office of Special Cell. I can identify the case property. At
this stage MHC(M) has produced one sealed cloth pullanda sealed with the
seal of this Court bearing particulars of this case and of DD No.20 dated
16.6.2013. Seal got broken, pullanda opened, it was found containing one
Khaki colour bag. The bag is opened and one towel of yellow white and
brown colour is taken out which is containing two cloth pullandas duly
sealed with the seal of this Court, seal got broken. Both the pullandas are
bearing case particulars of this case. One is S.No.1 and other is S.No.2. The
pullanda with S.No.1 and 2 are fully covered with brown colour tape. The
bag is identified as Ex.P1, towel is Ex.P2, pullanda of S.No.1 as Ex.P3 and
pullanda with S.No.2 as Ex.P4. The MHC(M) has also produced envelope
no.1A bearing FSL No. FSL2013/C5220 and case particulars of this case
and is duly sealed with the seal of this Court, seal broken, envelope opened.
The cut cloth pullnada bearing remainants of seal of SC and DK and one cut
polythene bag containing dried hard substance are taken out. The hard
substance is identified by the witness as Ex.P5 being the sample of opium
from the recovered pullanda of S.No.1. The parcel S.No.2A is also bearing
the case particulars of this case and the correct FSL number and is duly
sealed with the seal of this Court, seal broken, envelope opened. The cut
cloth pullnada bearing remainants of seal of SC and DK and one cut
polythene bag containing dried hard substance are taken out. The hard
substance is identified by the witness as Ex.P6 being the sample of opium
from the recovered pullanda of S.No.2. The MHC(M) has also produced two
more cloth pullanda with S.No.1 B and 2B both duly sealed with the seal of
SC and DK but they are not opened at this stage.
I can also identify the Innova car involved in the commission
of the offence in this case.
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 20
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
It has been stated by the Ld. APP that this Innova Car has since
been released in favour of Ritu Kaushal W/o accused Ajay Kaushal. Since the
Innova car has not been produced today by the Superdar who is present in
the Court today, further examination in chief is deferred as prayed by the Ld.
APP with a direction to the Superdar to produce the same on the next date
and in case any photograph of the Innova Car has been preserved by the IO
while releasing the car on superdari that may also be produced on the next
date.
I can identify the Innova Car bearing registration no.CH 01 AC 5349.
(The car is already exhibit as Ex.P7 in the testimony of PW11 ASI Ashok). At
this stage, the photographs of said Innova car already Ex.CW1/1
(collectively) are shown to the witness, the witness identified the
photographs of the car and states that the said car was used by the accused
persons namely, Ajay Kaushal and Khumba Ram."
PW12 SI Suresh Chand was the part of the team of Inspector
Sanjay Nagpal. He effected recovery of the bag containing opium.
PW13 Ram Pal, the Manager of Classic Travel Agency, Kashmere
Gate testified that the photocopy of the receipt no.212 (Ex.PW13/A) was
issued in the name of Khumba Ram by Classic Travel Agency for booking
a taxi from Delhi to Chandigarh. Mobile phone of Khumba Ram was
mentioned on the bill book as 9610878068 and ID card of Khumba Ram
is mentioned as 15466343E850546. The said photocopy of bill book was
seized by police vide seizure memo Ex.PW13/B.
PW14 SI Dharamvir Singh testified as under :
"Today, I have brought the summoned record i.e. diary register
pertaining to year 2013. As per record, on 16.06.2013, DD no.20 dated
15/16.06.2013 recorded in Special Cell/NR, Sector 6, Rohini, Delhi, was sent
to ACP, Northern Range vide entry no.1367. Photocopy of the said entry is
Ex.PW14/A (OSR) (Objected to).
Today, I have also brought the original DD no.20 dated 15/16.06.2013
which was received in the office of the ACP. That DD was seen by the ACP,
Northern Range at about 5.00 p.m. on 16.06.2013. The said DD is
Ex.PW14/B (Objected to).
The reports U/s 57 NDPS Act pertaining to present case were received in
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 21
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
the office of the ACP, Northern Range on 17.06.2013 vide entry no.1368 &
1369, photocopy of the said entry is Ex.PW14/C (OSR) (Objected to).
Today, I have also brought the original reports U/s 57 NDPS Act
pertaining to the present case which were sent on 17.06.2013 and report U/s
57 NDPS Act qua seizure of Narcotic substance and arrest of the three
accused persons were seen by the ACP, Northern Range, at about 12.30 and
12.45 p.m. respectively on the same day. Both the reports are now
Ex.PW14/D & Ex.PW14/E respectively. (Objected to)."
PW15 SI Karan Singh is the Investigating Officer.
PW16 Inspector Dinesh Kumar Sharma, SHO Special Cell, Lodhi
Colony testified as under :
"On the intervening night of 16/17.06.2013, I was working as SHO PS
Special Cell, at abotu 3.05 a.m., HC Ashok Kumar produced before me five
sealed pullandas, out of which one was big pullanda and four were small
pullandas. This big pullanda was not having any mark or number whereas
the four small pullandas were h aving marked as Mark 1A, 1B, 2A and 2B.
DD no.20 dated 16.06.2013, Special Cell NR was also mentioned on all
pullandas and all pullandas were seemed to have signedby HC Pawan, HC
Ashok and SI Suresh Chand. All pullandas were having one seal on each of
'SC'. HC Ashok also produced before me carbon copy of one seizure memo of
afeem and carbon copy of seizure memo of Innova Car no.5349 bearing
Chandigarh number. I do not remember the exact number of the car. HC
Ashok had als produced before me the above mentioned Innova car
alongwith the keys and one CFSL form bearing seal of 'SC'. I had put my one
seal each of DKS on all above mentioned pullandas and also one seal on the
CFSL form. I had written FIR n o.26/13 U/s 18/61/85 NDPS Act dated
17.06.2013 on all thepupllandas, carbon copies of seizure memos and CFSL
form and also put my signature on all pullandas and documents. I also put
the FIR number and put my signature on Innova car. Thereafter, I had called
ASI M. Baxla, signature ofInnova car. Thereafter, I had called ASI M. Baxla,
Incharge Malkhana and handed over him all the above sealed pullandas,
Innova car and the documents. Regarding this, DD no.13A dated 17.06.2013
was recorded by me at about 3.15 a.m. in the PS Special Cell Rojnamcha
which was also signed by ASI M. Baxla. ASI M. Baxla was directed to keep
the entire above mentioned case property and documents in safe custody and
also make the entry of the same in register no.19 and get my signatures
thereafter. After making the said entry, ASI M. Baxla had got my signatures
in register no.19 which are at column no.2 and 3 in the said register."
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 22
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
PW17 ASI Khem Singh proved DD no.8 dated 15.06.2013 as
Ex.PW17/A. (It may be noted that this witness was earlier examined as
PW2 and now new number has been given as PW17. Inadvertently, this
witness was also examined as PW3).
PW18 Rajiv Kumar is the owner of Abhinandan Lodge, Opposite
Railway Station, Nangal Dam, District Ropar, Punjab testified that on
15.06.2013 at about 9.00 p.m. accused Khumba Ram came to stay at
their lodge and left the lodge on 16.06.2013 at about 9.00 p.m. He
testified that photocopy (Ex.PW18/B) of the relevant register was taken
in possession by police vide seizure memo Ex.PW18/A.
Statement of accused Khumba Ram (A1) U/s 313 Cr.P.C.
Accused denied all the allegations and stated that the false case was
lodged against him at the instance of SI Suresh who belongs to Rajasthan.
He stated that one Idan Ram runs a private school in the town Pataudi,
District Barmer. Accused stated that his plot is situated in front of the
said school and Idan Ram claims a part of his plot. Ont his account, their
relations and strained. In order to teach h im a lesson, Idan Ram
colluded with SI Suresh who picked him from Bhaka Nangal Dam, where
he had gone as a tourist with Idan Ram. He further stated that Idan Ram
had become friendly with him with a view to implicate him in a false
case.
Statement of accused Ajay Kaushal (A2) U/s 313 Cr.P.C.
He denied all the allegations. He stated that he was working as a
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 23
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
reporter in Rashtriya Police Monitor Newspaper and in that newspaper,
he used to right against illegal acts of police including Punjab Police. In
order to teach him a lesson, Punjab Police got him implicated in the
present case in connivance with Special Cell of Delhi Police. On
16.06.2013, he had come out from his house at Nangal to go to temple.
He was apprehended by the team of Special Cell on the way to temple
and he was brought back to Delhi alongwith his Innova Car which was
being driven by HC Ajay Kumar. Special Cell brought him to PS Special
Cell, Sector 6, Rohini, Delhi on 16.06.2013 at about 5.30 p.m. and called
his cousin Hardeep Kaushal from Pitampura. Police tortured him and
forcibly taken his signatures on blank papers which was misused by police
to implicate him falsely in the present case. His wife lodged a written
complaint on 17.06.2013 in PS Nangal Township after waiting for one
day as per the instructions of SHO PS Nangal, copy of which is Ex.D2/1.
Statement of accused Hanuman Ram (A3) U/s 313 Cr.P.C.
He denied all the allegations. He stated that he was picked up from
Nangal on 16.06.2013 at about 8.10 hours. He stated that he had
reached Nangal from Balotra Railway Station to Chandigarh Railway
Station on 15.06.2013 and from there he had moved to Nangal as tourist
to see Nangal Dam. At that time, he was having his mobile phone
no.08696621608. the said mobile phone was snatched by the police and
he was forcibly dragged into a Swift Car and was brought to Delhi. He
stated that he was never taken in front of Tibettan Market and police had
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 24
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
obtained his signatures on plain paper and semiprinted proforma, which
were converted into notice, seizure etc. He had denied having been in
possession of the contraband and he further stated that he did not know
the coaccused persons prior to their arrest and that he had seen the co
accused persons for the first time in the police station.
He made a further statement U/s 313 Cr.P.C. on 12.12.2017 stating
that he had travelled from Balotra Railway Station to Chandigarh on
15.06.2013. Since the reservation charts have been destroyed, he filed a
copy of reservation chart (Ex.A3/X).
DEFENCE EVIDENCE OF ACCUSED KHUMBA RAM (A1)
Accused Khumba Ram (A1) examined following witnesses :
(1). Sh. Mukut Bhandari, SubDivisional Engineer (A1/DW1)
proved the CDRs of mobile phone no.9463516334 as Ex.A1/DW1/B. The
CAF of Reeta Kaushal is Ex.A1/DW1/A.
(2). Sh. Israr Babu (A1/DW2), Alternate Nodal Officer, Vodafone
Mobile Services Ltd. proved the CDRs of mobile phone no.961087806 as
Ex.A1/DW2/A and CAF as Ex.A1/DW2/B.
He also proved CDRs pertaining to mobile phone no.9811208755 as
Ex.A1/DW2/D and CAF as Ex.A1/DW2/E. He proved the Cell ID Chart as
Ex.A1/DW2/G of Rajasthan Circle and Cell ID Chart of Vodafone Mobile
Services of Delhi and NCR as Ex.A1/DW2/H.
(3). Sh. Dongra Ram (A1/DW3) testified that one Idan Ram is
running a school in the name and style of New A.R. Public School,
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 25
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
Pataudi, District Barmer, Rajasthan and accused Khumba Ram is having a
plot in front of the school. There is a dispute between accused Khumba
Ram and Idan Ram for the said plot. The residents of the village tried to
resolve the said dispute but failed. He also intervened for settling the
aforesaid dispute and he alongwith Khumba Ram and Idan Ram came in
a vehicle to Delhi for settling the dispute. When they entered Delhi after
crossing Gurgaon and were taking some snacks, SI Suresh came. After
the arrival of SI Suresh, Idan put pressure on accused Khumba Ram for
selling the said property for a meager price for which accused Khumba
Ram did not agree. Thereafter, he and accused Khumba Ram returned
back to Rajasthan. Whereas Idan Ram and SI Suresh remained in Delhi.
DEFENCE EVIDENCE OF ACCUSED AJAY KAUSHAL (A2)
Accused Ajay Kaushal (A2) examined only SI Neeraj Kumar
(A2/DW1) in his defence evidence. He testified that he made efforts to
trace out the written application for out station in respect of Inspector
Sanjay Nagpal dated 15.06.2013 but the same is not traceable.
DEFENCE EVIDENCE OF ACCUSED HANUMAN RAM (A3)
Accused Hanuman Ram (A3) examined following witnesses :
(1) Sh. Deva Ram (A3/DW1) testified that mobile phone
no.8696621608 is in his name and he had given it to accused Hanuman
Ram(A3) in January,2013 for getting it repaired. He testified that
accused Hanuman Ram (A3) is his real brotherinlaw.
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 26
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
(2) Sh. Israr Babu (A3/DW2), Alternate Nodal Officer, Vodafone
Mobile Services Ltd. proved the CDR pertaining to mobile phone
no.8696621608 as Ex.A3/DW2A. The number was allotted in the name
of Deva Ram. the CAF is Ex.A3/DW2B. He testified that as per CDRs of
15.06.2013 at 08.03.45 hrs, the location of the said mobile phone is in
area of Tower 636, Satto Ram Saran Wali gali malhotra, Teh.
Pachapadara, Barmer. On 16.06.2013 at about 05.42.45 hrs., the
location of mobile is in Punjab Circle.
(3) Sh. Mukesh Kumar Jha (A3/DW3) Station Master, Kalka,
Ambala Division, testified that reservation chart dated 15.06.2013 to
16.06.2013 of Train no.14888 from Barmer, Rajasthan to Kalka is not
available as it was destroyed on 21.11.2013.
FINAL ARGUMENTS
Final arguments were heard. I take up the pleas of the accused
persons as under :
(1) Sec.42 of NDPS Act
Ld. defence counsels have submitted that according to prosecution,
the vehicle in question was apprehended after sunset. When the alleged
recovery was affected after sunset, then the officers should have gone to
the spot alongwith the search warrant as required U/s 41 & 42 of NDPS
Act. In the present case, neither the police official in general nor the IO
in particular had gone to spot with any search warrant as required under
the Act. In the present case, though the alleged recovery was affected
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 27
Court of Sh. Vinod Kumar, ASJ (Central): DELHI
after sunset and before sunrise, he should have gone to the spot with a
search warrant or authorization but he did not do so. It is admitted fact
that the alleged recovery was affected after sunset and before sunrise and
it is also admitted that seizing officer was not armed with any such search
authorization as required under law and hence the alleged recovery is
null and void.
Ld. defence counsel submits that according to the Hon'ble Supreme
Court in State of Rajasthan V. Chhagan Lal (Crl.A.592/2005), carrying
search warrant to the spot was necessary and if no such warrant or
authorization is carried, it was held to be noncompliance of section
42(2) of NDPS Act. Ld. defence counsel has drawn my attention to the
relevant paragraph of the said judgment which is reproduced as under :
"As per proviso to section 42(1) of NDPS Act, he
could have conducted the search of the well after
recording grounds of his belief. Sec.42(2) required
the grounds of belief so recorded have to be
communicated to the immediate superior official
within 72 hours. In this present case, there is nothing
to establish that the officer had followed this
procedure. There is nothing to establish that he
recorded grounds of his belief and communicated
them to his superior official. As observed by the
constitutional bench in Karnail Singh (supra), total
noncompliance of requirements of subsections 1 & 2
of Sec.42 is impermissible since in this case, there is
total noncompliance of sec.42 of NDPS Act, the High
Court has rightly set aside the conviction of the
respondent."
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 28 Court of Sh. Vinod Kumar, ASJ (Central): DELHI Ld. defence counsel has further submitted that in State of Rajasthan V. Jagraj @ Hansa 29 June 2016, IO had not recorded the grounds of belief for not taking/obtaining search warrant or authorization and hence, the mandatory provision is not complied with and solely on this noncompliance of mandatory provision the accused is entitled for acquittal.
Ld. defence counsel is relying upon State of Rajasthan V. Chhagan Lal (Crl.A.592/2005) decided on 04.02.2014, Darshan Singh V. State of Haryana, 2016(1) RCR (Crl.) and Karnail Singh V. State of Haryana, 2009(10) SCALE 255.
I have considered the submissions of Ld. defence counsel carefully. Sec.41 of NDPS Act requires issuance of search warrants by a Metropolitan Magistrate for arrest of the accused or for search, whether by day or by night, of any building, conveyance or place in which he had reasons to believe any narcotic drug or psychotropic substance. In the present case, there was no specific information with the police that the contraband is placed in some specific building or some specific vehicle. Therefore, search warrants were not required to be taken in the present case. The case law cited by Ld. defence counsel is not applicable in the present case. It is true that recovery has been effected after sun set but since the recovery was not effected from inside the vehicle, Section 42 of The NDPS Act is not applicable. The place of recovery is a public place accessible to the public. Ld. Additional Public Prosecutor has referred to FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 29 Court of Sh. Vinod Kumar, ASJ (Central): DELHI Narayanaswamy Ravishankar Vs. Asstt. Director, Directorate of Revenue Intelligence decided by Hon'ble Supreme court of India on 3.10.2002 in Appeal (Crl.) 770 of 2002 in which it was held as under :
"In the instant case, accordingly to the documents on record and the evidence of the witnesses, the search and seizure took place at the Airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of noncompliance of any of the provisions of Section 42 of the NDPS Act is wholly irrelevant."
The case law cited by Ld. Additional Public Prosecutor is squarely applicable to the facts of the present case, whereas the case law cited by Ld. Defence Counsels is not applicable. Therefore, I am of the opinion that there is no requirement of compliance of provisions of Section 41 and 42 of the NDPS Act 1985.
(2) Nonjoining of independent witnesses Ld. Defence Counsels have argued that despite the fact the prosecution had ample time to join independent witnesses, prosecution had miserably failed to join any independent witness to support its case beyond reasonable doubt. The spot was also thickly populated and there were movements of innumerable vehicles, cyclists, bikes and pedestrians but no effort whatsoever was made to join a single independent witness to corroborate prosecution story.
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 30 Court of Sh. Vinod Kumar, ASJ (Central): DELHI Ld. defence counsel has relied on Naresh Kumar @ Nitu V. State of H.P. Crl. A 1053/2016 decided on 27.07.2017, Krishan Chand V. State of H.P., 2017(3) JCC (NAR) 112, Bahadur Singh V. State of M.P. & Anr., 2002(1) JCC 12, Gunesh Kumar V. State 2016 VII A.D.(Delhi) 249, Ritesh Chakravarty V. State of M.P., 2007(1) JLJ 239 and Inder Dev Yadav & Ors. V. State Crl. A. 541/2011.
I disagree with submissions of Ld. defence counsel. The police was following the vehicle in which A1 was travelling and which was being driven by A2. In such situation, the complete attention of police was to catch A1 at the moment, he takes the possession of the contraband. Any effort by them to join public witnesses could have spoiled their plan and their attention could have been diverted to the advantage of the offenders. The facts of the case are such that making efforts for joining of public witness was not a practical option for the police.
(3) Contradictions etc. Ld. defence counsels submitted that it is a case of full of material contradictions, which has rendered the whole prosecution case unreliable.
Ld. Defence Counsels submit that according to PW1, ASI Nawal Kishore, on 16.06.2013 at the office of Special Cell, NR, who had recorded the DD entry no.14 (Ex.PW1/A). Whereas the copy of the DD Ex.PW1/DA is not in consonance with Ex.PW1/A. It is submitted by Ld. defence counsel that in DD no.14 (Ex.PW1/A) the name of HC Ashok Kumar is written, whereas the handwritten copy of this DD, which has FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 31 Court of Sh. Vinod Kumar, ASJ (Central): DELHI been marked as Ex.PW1/DA mentions the name of HC Ajay Kumar. Further, in Ex.PW1/A, the motorcycle number is written as DL 1SS 3733, whereas in its copy Ex.PW1/DA the number of motorcycle is written as DL 1SS 3738. Ld. defence counsel submits that from this, it is clear that even documents and witnesses were also manipulated and fabricated.
I have considered this submission Ex.PW1/A is the photocopy of the original register in which DD entry no.14 was written. This photocopy was kept on record during examination of PW1, after comparing the same with the original register and therefore, it has to be admitted to be a true copy of DD no.14. On the other hand, Ex.PW1/DA is a handwritten copy of DD no.14, which was made a part of the chargesheet. It appears that the official who made the copy of DD no.14 in his handwriting had inadvertently committed mistakes and therefore, it cannot be said to be a correct copy of DD no.14. The true photocopy of DD no.14 is Ex.PW1/A because it was seen and compared with the original during examination of PW1. Consequently, it cannot be said that there was any manipulation or fabrication of Ex.PW1/DA, which is a handwritten copy of DD no.14.
Ld. defence counsels have pointed out that PW10 Inspector Sanjay Nagpal testified that he received a secret information from a secret informer personally on 15.06.2013 at about 7.00 a.m., when he was present at his office at Rohini. DD no.2 (Ex.PW15/B) was lodged at 7.05 a.m. and the said information was disclosed to senior officers. However, it is submitted that in DD no.2 (Ex.PW15/B) there is no reference of FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 32 Court of Sh. Vinod Kumar, ASJ (Central): DELHI disclosing the secret information to the senior officer. Therefore, it is argued that the testimony of PW10 in respect of information to senior officer should not be accepted. I agree with this submission. It is true that in DD entry no.2 he has mentioned that he is proceeding for developing the information but there is no mention in this DD that he had informed any senior officer about the secret information. Therefore, I accept the submission of Ld. defence counsel that the portion of testimony of PW10 about informing senior officer in respect of the secret information should be rejected. However, this is a minor contradiction and it does not effect that prosecution case.
Ld. defence counsels further submitted that PW10 Inspector Sanjay Nagpal directed SI Karan Singh (PW15) and Ct. Sandeep to develop the said secret information by going to near Tis Hazari Courts taking the informer alongwith them. He had also categorically stated in his cross examination that the informer had accompanied SI Karan Singh to Khanna Market, behind tis Hazari Court. The said factum is contrary to deposition of PW15. According to PW15, the informer did not accompany him but he met him at Jain Travels, Mori Gate. This again is a very minor contradiction which may be on account of loss of memory on part of any of the witnesses.
Ld. defence counsels submits that as per testimony of PW10 Inspector Sanjay Nagpal, he received telephonic information from SI Karan Singh regarding going of accused Khumba Ram to Nangal and FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 33 Court of Sh. Vinod Kumar, ASJ (Central): DELHI Khumba Ram was identified behind Tis Hazari Courts. Whereas, according to PW15, he was instructed by Inspector Sanjay Nagpal to go to Jain Travels, Mori Gate, where he shall meet one secret informer. It is submitted that it is not the case that he has to go to Jain Travels, Mori Gate but he was instructed by PW10, to go to back of Tis Hazari Courts, which is a vague place and it is no possible by any person to reach any such location. I disagree with the submission. The testimony of PW10 that SI Karan Singh informed him about Khumba Ram (A1) preparing for going to Nangal from a place behind Tis Hazari, is not contradictory. It is not the case of A1 that Jain Travels, Mori Gate is not behind Tis Hazari. Hence, no contradiction.
Ld. defence counsels submit that according to crossexamination of PW10 Inspector Sanjay Nagpal, PW11 HC Ashok and PW8 HC Pawan were being instructed to come to places like Pitampura, Rohini, Jahangirpuri, Burari etc and till finally the accused person halted near Monastry at around 11.20 p.m. Whereas according to PW11 and PW8, they straightaway went to Monastry from Mukarba Chowk and they had not followed the vehicles of accused and PW10. This is also no contradiction because PW8 & PW10 complied with the directions of Inspector Sanjay Nagpal on receiving of telephonic call.
Ld. defence counsels submit that according to crossexamination of PW10 Inspector Sanjay Nagpal, every officer, who leaves the station for outstation, has to obtain written permission. In the present case it is FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 34 Court of Sh. Vinod Kumar, ASJ (Central): DELHI alleged that PW10 had obtained permission from the DCP concerned to go to Nangal. Whereas, no document/permission to this effect has been filed before this Hon'ble Court in order to prove that a police team headed by PW10 had in fact left Delhi for going to Nangal. I have considered this submission. Even if, no written permission has been sought, it is enough that PW10 had informed the senior officers to proceed outstation. His immediate senior boss namely Assistant Commissioner of Police Satyavir Singh (PW9) has testified in his cross examination that Inspector Sanjay Nagpal had gone to Nangal alongwith his team a day earlier 16.06.2013 and it was within his knowledge.
Ld. defence counsels submit that according to PW10, he met PW15 SI Karan Sigh between 6.30 a.m. to 7.00 a.m. on 16.06.2013 at Nangal and PW15 also says he met PW10 at Nangal Railway Station at 7.00 a.m. on 16.06.2013. It is not humanly possible to reach Nangal at 6.30 a.m. when pW15 got instructions from Pw10 to come to Nangal at 4.00 a.m. on 16.06.2013. According to PW15, firstly, he went to Chandigarh after paying a fare of Rs.22/ and thereafter, he went to Nangal after paying a fare of Rs.78/. The distance between Ambala to Nangal via Chandigarh can only be covered in more than 5 hours. On the other hand, Ld. Additional Public Prosecutor submits that the distance between Ambala to Nangal is about 2 hours in the morning time on bus. I am of the opinion that it was not put to the witnesses as to how much time the police officials took in travelling from Ambala to Nangal. This aspect could have FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 35 Court of Sh. Vinod Kumar, ASJ (Central): DELHI been proved by the defence by leading appropriate evidence. There is nothing on record to disbelieve the testimony of PW10 and PW15 in this regard.
Ld. defence counsels further submit that according to PW10, SI Karan Singh (PW15) informed him between 9.30 a.m. to 10.00 a.m. on 15.06.2013 that A1 was planning to go to Nangal from ISBT, Delhi. There is no document on record which can indicate that A1 was trying to go to Nangal from ISBT, Delhi, whereas there is a document of classic Travel stand which indicate that one Khumba Ram had booked a taxi from Classic Travel stand to go to Chandigarh and certainly not to Nangal. Ld. Defence Counsels submit that the investigating agency should have examined an authorized person of classic travel stand before whom a person namely, Khumba Ram, had booked a taxi for Nangal, so as to rule out any ambiguity with respect to identification of accused Khumba Ram. Ld. defence counsels further submit that the investigating agency had also failed to examine the driver of taxi, who had take one Khumba Ram to Nangal. The reason is best known to investigating agency as to why the material link witness i.e. either the driver of the vehicle or the authorised representative of classic travel, who booked the taxi for Khumba Ram was not examined to nail the present accused Khumba Ram in the present case.
I have given serious thought to this submission. Had such driver been made a witness, he could have only prove that Khumba Ram had FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 36 Court of Sh. Vinod Kumar, ASJ (Central): DELHI proceeded from Delhi in the Taxi to Chandigarh or Nangal. However, this fact had been proved by prosecution by examining Ram Singh (PW13), the Manager with Classic Travels Agency, Kashmere Gate, who proved a photocopy of receipt bearing no.214 issued in the name of Khumba Ram by Classic Travel Agency. The said receipt was issued against the booking of a taxi from Delhi to Chandigarh. He testified that the original bill book has been destroyed, he had given the photocopy of the bill book Mark PW13/A after attesting the same to the police and it was seized by the police vide seizure memo Ex.PW13/B. This secondary evidence is admissible because the original bill book had been destroyed. The document was duly attested by PW13 Ram Singh at the time of giving its photocopy to police. In this bill, not only the name of Khumba Ram is written but the mobile phone number 9610878068 and his ID card number is also mentioned as 15466343E850546. Therefore, by leading this evidence, prosecution has proved that A1 had booked a taxi from Classic Travels Agency, Kashmere Gate, Delhi on 15.06.2013 for Chandigarh. Therefore, even if the taxi driver has not been examined by prosecution, the testimony of SI Karan Singh (PW15) that he met Khumba Ram at Classic Motor Travels and asked him to share the fare of taxi as he and Ct. Sandeep had to go to Ambala is worthy of credence.
Ld. defence counsels submit that according to PW10, accused Khumba Ram was supposed to come from Rajasthan near Tis Hazari Courts by Jain Travels. No inquiry/investigation was conducted as to FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 37 Court of Sh. Vinod Kumar, ASJ (Central): DELHI whether accused Khumba Ram had come to Delhi by Jain Travels. I am of the opinion that it was not required and it is sufficient that police started following A1 from Classic Travel Agency, Kashmere Gate.
Ld. defence counsels submit that according to PW10, ASI Rajveer and Ct. Gurdeep were directed by him to take a room in Abhinandan Lodge to watch the accused Khumba Ram who stayed in a room besides these two police officials, whereas the other team members including PW10, stayed outside that too in the government vehicle. Ld. Defence Counsels submit that the said proposition is not digestible. Moreover, there is no record that these two police officials had stayed in Abhinanda Lodge on the night intervening 15/16.06.2013. I disagree with this submission. Police has to work under hard conditions. PW18 Rajiv Kumar is running Abhinandan Lodge, opposite Railway Station, Nangal Dam, District Ropar, Punjab for last 1415 years. He testified that on 15.06.2013, at about 9.00 p.m., one person namely Khumba Ram came to his lodge to stay and on 16.06.2013, he left. He proved the original entry in the register (Ex.PW18/B). He testified that after 1415 days, police officers came to him and he gave a photocopy of the same which was taken in possession vide seizure memo Ex.PW18/A. In crossexamination by Ld. defence counsel for A1, PW18 testified that two police officials had stayed in his lodge in plain clothes. However, he did not produce the ID proof of the police officials. He testified that these police officials were staying in Room no.5 as per entry no.147. The photocopy of which is FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 38 Court of Sh. Vinod Kumar, ASJ (Central): DELHI Ex.PW3/DX. He testified that these police officials were in plain clothes and had stayed in his lodge from 11.30 p.m. on 15.06.2013 till 9.00 a.m. on 16.06.2013. He testified that police officials left his lodge as soon as Khumba Ram left the same. A perusal of Ex.PW18/B (new number) at entry no.146 on the register of Abhinandan Lodge, name of Kumba Ram S/o Hira Ram, Jodhpur, mobile phone no.09610878068 is mentioned whereas at Sr. no.147, the name of Gurdeep Singh is written. I may mention here that PW10 has testified that he directed ASI Rajbir and Ct. Gurdeep, who were members of this team to take a room in Abhinandan Lodge. This crossexamination by Ld. defence counsel is more than sufficient proof that not only Khumba Ram but also the police officials had stayed in the Abhinandan Lodge.
Ld. defence counsels submit that according to PW10, SI Suresh went to the lodge on 16.06.2013 in the morning to meet ASI Rajveer and Ct. Gurdeep to develop further information regarding Khumba Ram. These two police officials namely ASI Rajveer and Ct. Gurdeep were not examined by the prosecution for the reasons best known to them. I am of the opinion that it is not necessary for the prosecution to examine each and every witness. It is necessary to mention here that Ct. Gurdeep Singh was cited as a prosecution witness but was dropped by prosecution being unnecessary, may be for the reason that he was only developing the information and was not a recovery witness.
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 39 Court of Sh. Vinod Kumar, ASJ (Central): DELHI Ld. defence counsels submit that according to PW10, at about 6.30 a.m., on 16.06.2013, SI Suresh Chand told him that accused Khumba Ram is involved in trafficking of narcotics substance and accused Khumba Ram and his accomplice Ajay Kaushal would go to ISBT, Delhi as Shankar could not reach Nangal. ASI Rajveer and Ct. Gurdeep were not examined before this Court, whereas PW12 Suresh Chand had deposed that he did not notice installation of AC or cooler in his room but he could notice the running of TV as the door of the room of accused Khumba Ram was lying open. He had further deposed in page no.119 that he did not go to any other room except room number 5 where other police officials were staying. He had also deposed that he did not take breakfast, bath or meeting any person in the hotel. It is argued by Ld. Defence Counsels that from this, it is doubtful as to when he heard the conversation of accused Khumba Ram. It is argued that if the version of PW12 is believed, then there should be scientific evidence available as accused Khumba Ram was talking over his mobile. It is further submitted that it is not clear as to what investigation was carried out to authenticate that during morning of 16.06.2013, accused Khumba Ram was talking with whom. There is no investigation whatsoever, qua this aspect. Hence, it is argued that the story of PW12 of hearing conversation of accused Khumba Ram is a story weaved by the police party to implicate accused parties in the present case.
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 40 Court of Sh. Vinod Kumar, ASJ (Central): DELHI I have carefully perused the testimony of PW12 SI Suresh Chand. It appears that A1 had no inkling that police was following him. Therefore, he was talking on his mobile without any hesitation. Had police connected the call details with the concerned person, it would have been better. But its absence does not make the prosecution case doubtful because actual event did not take place at Abhinandan lodge. Rather it took place in Delhi.
Ld. Defence Counsels have drawn my attention to following points to discredit the testimony of PW11 ASI Ashok Kumar :
(1) According to PW15, PW11 had gone with him to Mori Gate to locate accused Khumba Ram.
Whereas, PW11 is totally silent in his examination in chief regarding his visit to Jain Travels, Mori Gate with PW15 SI Karan Singh.
(2) According to PW11, he had joined the investigation only on 16.06.2013 at 6.55 p.m. when he was directed to go to Mukarba Chowk with HC Pawan.
(3) He did not follow the vehicles of accused and police team which came from Nangal (rather he has no knowledge as to at what time the team of Inspector Sanjay Nagpal returned from Nangal and entered into Delhi).
(4) According to PW11, he got released, weighing scale and IO kit from the custody of malkhana Incharge (no document is available injudicial record qua releasing of aforementioned articles from malkhana).
(5) He got final instructions from Pw10 to reach ISBT, Delhi at 11.00 p.m. (How Pw10, could know regarding any proceeding to be conducted at ISBT at 11.00 p.m. FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 41 Court of Sh. Vinod Kumar, ASJ (Central): DELHI (6) According to him the team even did not stop any vehicle to request the occupants of such vehicles to join the raiding party. Moreover, he had stated as there was no information with respect to any proceeding to be conducted at the spot. The team did not arrange any independent witness from the spot. The aforementioned deposition is contrary to deposition of PW10 regarding joining of independent witnesses.
(7) The said witness was unaware of the contents of recovery memo and even the pages. He even approximately unaware whether the recovery memo was consisting of 2 pages, 3 pages or so on to 10 pages. But he had categorically stated that pages of recovery memo were written on both sides of the paper which is contrary to record.
(8) According to him FSL form was in two pages but does not know whether FSL form was filled in both the sides of both the pages. He even does not know whether FSL form was typed, handwritten or photocopied.
I have considered the submissions of Ld. Defence Counsels but none of the aforesaid points cannot be called contradictions. Even the witness cannot be held to be unreliable because the aforesaid are very minor and do not go to the root of the case.
Ld. Defence Counsels have drawn my attention to following points in respect of the testimony of PW8 HC Pawan :
(1) According to him he was called to Karnal bypass at about 6.55 p.m. by Inspector Sanjay Nagpal and during such telephonic conversation, Inspector Sanjay Nagpal told him to remain present at Karnal bypass as he was following one Innova car.
According to him, after sometime Inspector Sanjay FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 42 Court of Sh. Vinod Kumar, ASJ (Central): DELHI Nagpal again telephoned him to reach near ISBT, near Tibettan Market, Ring Road and as such, he and PW11 Ashok reached near ISBT at about 11.30 p.m. (2) According to him Inspector Sanjay Nagpal searched for some public persons but due to night hours none were found (contrary to the version of PW11 Ashok).
(3) In his crossexamination the said witness had deposed that it is correct that Tibetan Market is located near the spot at a distance of 60 yards from the place where the raiding party took the position.
(4) He does not remember as to how many papers were signed by him.
(5) He had categorically deposed that during 5.5 hours of his stay no public person was asked to join the proceeding.
(6) According o him he was aware regarding conducting some proceeding between 12' noon to 6.00 p.m. on 16.06.2013. (how it is possible when nothing was known to Inspector Sanjay Nagpal and his team till 11.20 p.m. on 16.06.2013.
(7) the said witness has categorically stated that monastery is situated at a distance of 6070 mtrs from the spot which means, Monastery was not the spot.
(8) The said witness had stated that he had reached ISBT and at that time he was aware regarding search of Innova (according to prosecution nothing happened at ISBT).
(9) This witness does not remember the time of preparation of first document which was prepared at the spot (though at subsequent stage he had stated that the first document was notice U/s 50 of NDPS Ac). He had also stated that a seizure memo of Tavera was also prepared (this is not the case of prosecution). This witness does not know as to how many documents he had signed. He had also deposed all the documents prepared at the spot were with the IO.
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 43 Court of Sh. Vinod Kumar, ASJ (Central): DELHI I have considered the submissions and I hold that these are very small contradictions. It must be kept in my mind that monastery is very near to ISBT and thought the witnesses have sometimes mentioned the spot near monastery and sometimes the spot near ISBT but the witnesses are very definite as to the place of recovery. The remaining points also cannot be considered as material contradictions.
Ld. Defence Counsel has assailed the testimony of PW9 ACP Satyavir Singh on following points :
(1) He being ACP, does not remember as to on which day Inspector Sanjay Nagpal and his team visited Nangal.
(2) No written information was given by Inspector Sanjay Nagpal to him but he was informed by Duty Officer only.
(3) No other written information was sent to his office.
(4) He did not receive any secret written information from the morning of 15.06.2013 till 16/17.06.2013 except DD no.20.
(5) He did not give any authorization letter in writing to Inspector Sanjay Nagpal.
I find no substance in the submissions of Ld. Defence Counsel. The testimony of an official witness cannot be discredited on such miniscule points.
Ld. Defence Counsel has assailed the testimony of PW12 SI Suresh Chand on following grounds:
(1) He is the witness who heard the conversation of accused Khumba Ram with somebody (no FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 44 Court of Sh. Vinod Kumar, ASJ (Central): DELHI investigation qua such conversation). According to him the substance could be delivered to some customer at Delhi near Maharana Partap Bus adda.
Whereas, the contents of DD no.20 speaks something else and according to DD no.20 name of Ajay Kaushal figures which this witness did not hear.
(2) According to this witness, the Innova car reached Tibettan Market, Ring Road at about 11.25 p.m. and at this time HC Pawan and HC Ashok reached the spot. (which is contrary to record).
(3) According to him Budhpur drain is outside Delhi.
(4) He had not obtained any permission to proceed out of station. He was not armed with any search warrant for taking search after sunset and prior to sunrise.
(5) According to him, when he sat in Tavera for going out station, he was intimated by Inspector Sanjay Nagpal to go to Nangal. No witness has explained as to how at 10.00 a.m. it was revealed that accused Khumba Ram shall proceed to Nangal and how at 7.00 a.m. on 15.06.2013 it was known to Inspector Sanjay Nagpal that he has to take PW12 to outstation (no material qua this in the entire judicialfile).
(6) According to him the team reached Ambala at 4.00 p.m. whereas according to another witness, the team reached Ambala after about 4 5 hours of departure from Delhi. According to him SI Karan Singh was the only person present in Ambala but the vehicle of the suspect had already left Ambala and at that point of time registration number of the vehicle of the suspect was told.
(7) According to him after about 23 minutes of arrival of Innova another person namely Hanuman Ram reached. Whereas, according to some other witness it was after 10 minutes accused Hanuman Ram reached the spot. (8) The said witness on a subsequent date of crossexamination i.e. on FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 45 Court of Sh. Vinod Kumar, ASJ (Central): DELHI 10.07.2017 had deposed on oath that the 3rd accused Hanuman Ram arrived immediately at the spot on the arrival of accused persons in the Innova car. However, he had no knowledge from which side he had come to the spot.
(9) He had also deposed that the team had no information whatsoever with respect to handing over of any bag by Hanuman Ram to the occupants of Innova Car.
(10) No police official took personal search of any of the accused at the spot and he had no knowledge whether any accused was having any mobile phone.
(11) According to him, accused Hanuman Ram wrote on notice U/s 50 of NDPS Act that he did not require the presence of any Gazetted Officer. Similarly, accused Ajay Kaushal wrote that he did not require the presence of Gazetted Officer (contrary to record).
(12) He does not remember the time of preparation of FSL form. According to him, FSL form was of 2 sheets and written on both sides. After a pause, he says he does not remember.
I disagree with the submissions of Ld. Defence Counsels. All the aforesaid points are so minor that the same are required to be ignored.
Ld. Defence Counsels submit that PW14 SI Dharamvir Singh had testified that he produced DD no.20 dated 15/16.06.2013 but in cross examination he had deposed that entries number 1367, 1368, 1369 were not in his own hand. Ld. Defence Counsels submit that SI Gyanchand who had made the aforementioned entries was neither cited as a witness nor examined PW14 had further stated that documents ex.PW14/B, D, E were FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 46 Court of Sh. Vinod Kumar, ASJ (Central): DELHI not put up before the ACP in his presence.
I have perused the testimony of PW14 SI Dharamvir Singh. He was SO to ACP Special Cell and he brought the diary register pertaining to year 2013. He testified that as per record, on 16.6.2013, DD no.20 recorded in Special Cell was sent to ACP Northern range vide entry no. 1367 and as per record, this DD was seen by ACP Norther range at about 5:00 pm on 16.6.2013. The DD is Ex.PW14/B. This witness is a witness of record, which is maintained in normal course of official business and it is not required that the writer of the DD should be examined. I may point out that PW9 ACP Satyavir Singh has testified that on 16.6.2013, Inspector Sanjay Nagpal gave a specific information to DO that they were following one Khumba Ram in Nangal and got recorded one DD entry no.20 with the duty officer of his office (i.e. ACP's office) and disclosed that Khumba Ram along with associates is supposed to visit Delhi, who hand over the consignment to someone. This information was passed on to him by duty officer on telephone. On the same day, this DD entry no.20 was produced by duty officer before him, which was seen by him and he made his endorsement on it. Therefore, the fact of recording of DD entry no.20 and its production before ACP is proved beyond reasonable doubt.
Ld. Defence Counsels have strongly assailed the testimony of PW15 SI Karan Singh. According to him accused Khumba Ram was dealing with Classic travel agency for going to Nangal, whereas according to the FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 47 Court of Sh. Vinod Kumar, ASJ (Central): DELHI bill of Classic Travels, Khumba Ram was supposed to go to Chandigarh. Ld. Defence Counsels submit that in examination in chief, this witness does not say regarding his meeting with Inspector Sanjay Nagpal at Ambala. Whereas, the other witnesses have narrated meeting of PW15 with PW10 at Ambala. Ld. Defence Counsels have raised a question as to what was he doing at Ambala from 4.00 p.m. on 15.06.2013 to 4.00 a.m. on 16.06.2013. I am of the opinion that when PW15 was not at Ambala, he has to wait for further instructions from SI Sanjay Nagpal.
Ld. Defence Counsels submit that his getting down at Panipat and following two persons who elicited from Innova car at 2.15 p.m. on 16.06.2013 and thereafter, reaching office at Delhi and joining as second IO in present case at 2.00 a.m. at 17.06.2013 also creates serious doubt as no document is on record which can indicate the inquiries made from those two persons who got down at Panipat.
I am of the opinion that a separate document of every minor event is not required to be created.
(4) My opinion on contradictions I have carefully considered these contradictions and I do not find the same to be substantial ones. It must be kept in mind that the police officials were following A1 from Delhi upto Nangal and thereafter, back to Delhi. This was a case of almost continuous watch and attention to the movement of the vehicle, in which A1 was sitting and which was being driven by A2. This itself demands so much activity that it is not possible FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 48 Court of Sh. Vinod Kumar, ASJ (Central): DELHI for a witness to remember every detail till the time he is examined in the court. Therefore, minor variations in testimonies are bound to occur due to lapse of memory. None of the contradictions as discussed above is so material that prosecution story should be discarded altogether. However, Ld. Defence Counsels have raised a very material contradiction in the testimonies of the witnesses, which is required to be given due weight. The recovery witnesses in the present case are PW8 HC Pawan Kumar, PW10 Inspector Sanjay Nagpal, PW11 ASI Ashok Kumar and PW12 SI Suresh Chand. PW8, PW11 and PW12 all have testified that accused Hanuman Ram (A3) came with a bag and handed it over to Khumba Ram (A1), who gave it to Ajay Kaushal (A2), the driver of Innova Car and the bag was taken by SI Suresh Chand from Ajay Kaushal.
On the other hand, PW10 Inspector Sanjay Nagpal is silent in his examination in chief about the fact of Khumba Ram handing over the bag to Ajay Kaushal. In examination in chief, he testified "SI Suresh Chand took search of accused persons one by one but nothing incriminating was recovered from their person. On checking of the bag in possession of accused Khumba Ram, which was of Khaki colour, the front two pockets were found empty, however after opening the long chain, it was found containing two big packets wrapped inside old towel". It is argued by Sh. S. S. Dass, Advocate for A1 that in view of this contradiction benefit of doubt should be given to Khumba Ram (A1). I disagree with this submission. All the FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 49 Court of Sh. Vinod Kumar, ASJ (Central): DELHI witnesses have categorically testified that accused Hanuman Ram (A3) had given the bag in question to Khumba Ram (A1). Therefore, there is no contradiction in this regard and benefit cannot be given to A1.
Sh. Arvind Kumar Singh, Advocate Ld. LAC argues that benefit of doubt should be given to accused Ajay Kaushal (A2) on this ground. Ld. Additional Public Prosecutor argues that the recovery was effected by SI Suresh Chand (PW12), therefore, his evidence should be relied specially in view of the consistent testimonies of PW8 and PW11. Ld. Defence Counsel argues that the case of prosecution is corroborated from the recovery memo Ex.PW8/D prepared by SI Suresh Chand in which it is specifically mentioned that accused Hanuman Ram gave the bag to Khumba Ram and Khumba Ram handed over the said bag to driver of the car. It is pertinent to note that Ajay Kaushal was standing outside the car along with accused Khumba Ram at that time.
I have considered the submissions of Sh. Arvind Kumar Singh, Advocate, Ld. LAC for A2. It is pertinent to note that police officials had three suspects to control. Inspector Sanjay Nagpal appears to have forgotten the details. The testimonies of PW8, PW11 and PW12 are trustworthy. The evidence of PW12 is of higher degree of credibility because it is he, who searched the accused persons as well as the bag. He specifically testified that the bag from accused Ajay Kaushal was taken and checked. This evidence is correct because the entire sequence has been reduced to writing in recovery memo Ex.PW8/D. In these FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 50 Court of Sh. Vinod Kumar, ASJ (Central): DELHI circumstances, I am not inclined to give any benefit of this contradiction to any of the accused.
(5) Log Book Ld. Defence Counsels have submitted that prosecution has not proved the Log book of the Government vehicle in order to establish that the said vehicle had travelled upto Nangal and back. I may point out that PW18 Rajiv Kumar has testified in his cross examination that two police officials had stayed in his lodge on 15.6.2013 and police officials had left lodge as soon as Khumba Ram had left the said lodge. This corroborates the prosecution case that police had travelled upto Nangal. In view of the trustworthy testimony of the police officials regarding travel through the Government vehicle, which is supported by PW18 regarding arrival of police at his lodge in Nangal, non production of log book during prosecution evidence is not fatal to the prosecution case.
(6) Submissions of Ld. Defence Counsels regarding defence witnesses Sh. S. S. Dass, Advocate Ld. Defence Counsel for A1 has argued that defence witness Dongra Ram (A1/DW3) has testified that Khumba Ram was having a plot in front of New A. R. Public School, Pataudi, District Barmer, Rajasthan and A1 was having a plot in front of the said school. Idan Ram is running that school but was claiming the said plot. On this account, there was a dispute between the two. He testified that residents of village tried to resolve that dispute but failed. Therefore, he FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 51 Court of Sh. Vinod Kumar, ASJ (Central): DELHI (i.e. Dongra Ram) intervened and he along with Khumba Ram and Idan Ram came to Delhi for settling the dispute. When they entered Delhi after crossing Gurgaon and were taking some snacks, SI Suresh came. On arrival of SI Suresy, Idan Ram put pressure on accused Khumba Ram for selling the said property for a meagre price. Khumba Ram did not agree for it and thereafter, he and accused Khumba Ram returned back to Rajasthan, whereas SI Suresh and Idan Ram remained in Delhi. Ld. Defence Counsel submits that SI Suresh in collusion with Idan Ram has falsely implicated A1 in the present case.
I disagree with this submission. I have carefully perused the cross examination of PW12 SI Suresh Chand by Ld. Defence Counsel for A1. The above mentioned defence and allegations against SI Suresh Chand have not been put to him in cross examination. In such a situation, the testimony of PW12 SI Suresh Chand cannot be disbelieved. Rather the defence is an afterthought and defence witness is unreliable.
Sh. Arvind Kumar Singh, Advocate, Ld. LAC for accused Ajay Kaushal (A2) argues that no written application by Inspector Sanjay Nagpal dated 15.2.2013 to go out of station was traceable as testified by defence witness SI Neeraj Kumar (A2/DW1).
I have already discussed the evidence and have held that the prosecution version that Inspector Sanjay Nagpal along with his team having travelled upto Nangal is proved beyond reasonable doubt and therefore, if the written permission is not available, same does not dent FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 52 Court of Sh. Vinod Kumar, ASJ (Central): DELHI the prosecution case.
Sh. R. K. Giri, Advocate for accused Hanuman Ram (A3) has submitted that in his additional statement under Section 313 CrPC recorded on 12.12.2017, A3 has brought on record the copy of reservation chart (A3/X), which shows that this accused had travelled on 15.6.2013 from Balotra Railway Station to Chandigarh.
I am of the opinion that this evidence does not disprove the prosecution case because Hanuman Ram (A3) was present in Delhi on 16.6.2013 at about 11:30 pm. Khumba Ram (A1) has examined Mukut Bhandari (A1/DW1) to prove the CDRs of mobile phone no. 9463516334 Ex.A1/DW1/B pertaining to Smt. Rita Kaushal, the wife of A2 and Israr Babu (A 1/DW2) Nodal Officer for proving CDRs of mobile phone no. 961087806 as Ex.A1/DW2/A and its CAF as A1/DW2/E in the name of Leela Devi W/o Karna Ram.
The CDRs of mobile phone of Smt. Rita Kaushal and Smt. Leela Devi have not been pressed during arguments.
Hanuman Ram (A3) has examined in his defence his brother in law Deva Ram (A3/DW1). This defence witness has testified that mobile phone no. 8696621608 is in his name and he had given it to Hanuman Ram (A3) in January 2013 for getting it repaired. A3 also examined Israr Babu (A3/DW2) the Nodal Officer and proved the CDRs of the said mobile phone. He testified that as per the CDRs of this mobile phone, the FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 53 Court of Sh. Vinod Kumar, ASJ (Central): DELHI location of the said mobile phone on 15.6.2013 at 8:03:45 hours was Barmer and on16.6.2013 at about 05:42:45 hours, the location of mobile phone was in Punjab circle. However, Ld. Defence Counsel has not argued that as to how presence of Hanuman Ram (A3) on 16.6.2013 at 11:30 pm in Delhi is discredited from this evidence.
Whether the accused persons were having the knowledge of contraband lying in the bag.
Sh. R. K. Giri, Advocate for accused Hanuman Ram (A3) submits that even if the prosecution is admitted to be true, A3 was only having a bag and had not knowledge as to what was lying in it. I disagree with this submission. Burden is upon him to prove that he had no knowledge that the contraband was lying in the bag carried by him. Sh. S. S. Dass, Advocate for accused Khumba Ram (A1) also has raised the same plea. But I disagree with this plea because it is for A1 to explain as to why he readily received the bag in question. The submissions of Sh. Arvind Kumar Singh, Advocate, Ld. LAC for accused Ajay Kaushal (A2) is that Ajay Kaushal was simply driver of Innova car hired by Khumba Ram (A1) and if prosecution case is accepted, A2 appears to have received the bag from Khumba Ram (A1) bonafidely. The submissions of Ld. Defence Counsel would have been acceptable, had A2 taken this plea from the very beginning. There is total denial by him of all the facts proved by the prosecution. In fact he is denying that he was hired by Khumba Ram (A
1). Rather his plea in statement under Section 313 CrPC is that he was FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 54 Court of Sh. Vinod Kumar, ASJ (Central): DELHI working as reporter in Rashtriya Police Monitor Newspaper in which he used to expose the illegal activicties of Punjab Police. He stated that Punjab Police had got him implicated in the false case in connivance with the Special Cell of Delhi Police. He testified that he was apprehended by the team of Special Cell on the way to temple and he was forcibly brought to Delhi along with his Innova car.
Therefore, he has nowhere raised a plea that his vehicle was hired by Khumba Ram (A1). Had he taken this plea from the beginning of the trial, receiving of bag in question by him from Khumba Ram (A1) could have been considered to be a bonafide act on his behalf because in capacity of a driver, it would have been presumed to be a normal act for him, if something is handed over to him by the hirer to be placed in the hired car.
Hence, I am of the opinion that when he accepted the bag from Khumba Ram (A1), he had the knowledge as to what it was containing.
To sum up In view of above discussions, I hold that prosecution has proved beyond reasonable doubt that all the accused persons were joint possession of 9.5 kg of the substance in two packets. One packet was containing 5 kg of substance, which as per the police officials was opium. This packet was given serial no.1. The second packet was found to contain 4.5. kg of substance, which was given serial no.2. Two samples from each packet were drawn, which were marked as serial no.1A and 1B FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 55 Court of Sh. Vinod Kumar, ASJ (Central): DELHI from first packet and 2A and 2B from second packet. As per FSL report (admissible per se under Section 293 CrPC), parcel 1A and 2A were found to contain morphine, codeine etc., which are the main constituents of opium, which is mentioned at serial no.92 of the NOTIFICATION SPECIFYING SMALL QUANTITY AND COMMERCIAL QUANTITY issued under the powers conferred by Clause (vii3) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act 1985. This table shows that opium weighing more than 2.5 kg falls in the category of commercial quantity. In the present case, the opium recovered weighed 9.5 kg. Therefore, I convict all the accused persons under Section 18(b) of NDPS Act 1985. The facts of the case also show that all the accused persons were in conspiracy with each other. Therefore, I convict all of them under Section 29 of NDPS Act 1985.
Announced in the open court on 7.2.2018.
(Vinod Kumar) Additional Sessions Judge (Central) Tis Hazari Courts Delhi FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 56 Court of Sh. Vinod Kumar, ASJ (Central): DELHI IN SPECIAL COURT, NDPS ACT (CENTRAL) TIS HAZARI COURTS, DELHI SC No.07/2014 FIR No.26/2013 CIS No. 27588/2017 PS Special Cell CNR No. DLCT010005292013 State Versus
1. Khumba Ram @ Fouji, S/o Sh. Hira Ram, R/o Vill. Kalewa, Teh. & P.S. Pachpadara, Distt. Barmer, Rajasthan
2. Ajay Kaushal, S/o late Sh. Om Dutt, R/o Plot no.13A, DDA Market, Nangal Township Distt. Ropar, Punjab
3. Hanuman Ram @ Haria, S/o Sh. Hira Ram, R/o Vill Patial, PO Sajiyal, Teh. & PS Pachpadera, Distt. Barmer, Rajasthan Order on sentence 8.2.2018 Present: Sh. Ghanshyam Srivastava, Ld. Addl. P. P. for State.
Convict Khumba Ram from JC with Sh. S. S. Dass, Advocate.
FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 57 Court of Sh. Vinod Kumar, ASJ (Central): DELHI Convict Ajay Kaushal from JC with Sh. Arvind Kumar Singh, Advocate, Ld. LAC.
Convict Hanuman Ram from JC with Sh. U. K. Giri, Advocate.
Arguments on sentence are heard.
Considering all facts and circumstances, I sentence all the convicts to rigorous imprisonment for 10 years and a fine in the sum of Rs.1 lac each only under Section 29 of NDPS Act 1985. In default of payment of fine, convicts shall undergo simple imprisonment for 6 months each.
I further sentence all the convicts to rigorous imprisonment for 10 years and a fine in the sum of Rs.1 lac each only under Section 18(b) of NDPS Act 1985. In default of payment of fine, convicts shall undergo simple imprisonment for 6 months each.
All the sentences shall run concurrently. Benefit under Section 428 CrPC be given to all the convicts.
Sentences warrants be prepared and convicts, who are already in judicial custody, be sent to suffer the sentences.
Copy of judgement has already been supplied. Copy of order on sentence be also supplied free of cost to the convicts.
File be consigned to record room.
Announced in the open court on 8.2.2018.
(Vinod Kumar) Additional Sessions Judge (Central) Tis Hazari Courts Delhi FIR No.26/2013 PS Special Cell State V. Khumba Ram & Ors. 58 Court of Sh. Vinod Kumar, ASJ (Central): DELHI