Delhi District Court
S.C. No. 6604/2016 State vs . Paul Anthony 1/55 on 20 January, 2018
IN THE COURT OF SHRI RAJESH KUMAR SINGH
SPECIAL JUDGE-NDPS/ASJ (SOUTH)
SAKET COURTS, NEW DELHI
S.C. No. 6604/2016
FIR No. 57/14
PS-Special Cell
U/s. 21 NDPS Act
State
VERSUS
Paul Anthony
S/o Mr. Anthony
R/o H. No. 1022/2,
A-Block, Mahipal Pur,
New Delhi.
Holder of Nigerian Passport No. A01008078 Dated 21.05.2009
issued from Aasaba, Nigeria.
Computer ID No. : DLST01-000225-2015
Date of institution : 18.02.2015
Date of reserving judgment : 03.01.2018
Date of pronouncement : 15.01.2018
Decision : Convicted.
JUDGMENT
1.1 Charge was framed against the accused Paul Anthony vide order dated 27.05.2015 under section 21 (c) read with section 8 (c) of NDPS Act (hereinafter referred to as 'the Act'). Allegation against the accused is that on 13.12.2014, at about 4:05 pm, at Mahipal Pur by pass, near Arjun Camp, opposite Mahipal Pur Village, he was found in possession of 426 S.C. No. 6604/2016 State vs. Paul Anthony 1/55 Grams of Heroin (Diacetylmorphine) in contravention of the provision under section 8 (c) of the Act.
1.2 The case starts with receipt of secret information by SI Deepak Kumar of Special Cell, SR (Southern Range) at about 1:45 pm on 13.12.14, which was recorded vide DD No.
15. The information was conveyed to ACP Satyavir Singh on his mobile no. 9810448999. On his direction SI Deepak Kumar constituted a police party comprising of himself, SI Shishu Pal, HC Balraj, HC Arvind, Ct. Rajesh and Ct. Ravinder Bisht. On the way to the spot at Nehru Place, SI Deepak Kumar requested two public persons to join the raid. They disclosed their names and addresses as Suresh, s/o Sh. Ghanshyam, R/o A-15, Tigri Extension and Pravin s/o Sh. Rajendra, R/o 2015, New Shahdara but they refused citing some genuine reasons. The police party reached the spot i.e. Mahipal Pur by pass, near Arjun Camp, opposite Mahipal Pur Village with the secret informer at about 3:15 pm. There also SI Deepak Kumar requested two public persons to join the raid, who disclosed their names and addresses as Mohan Lal, S/o Sh. Pokhar Mal, R/o Badhsah Pur, Gurgaon and Hazari Lal, S/o Sh. Ramphool, R/o 102, Vijay S.C. No. 6604/2016 State vs. Paul Anthony 2/55 Colony, Kapashera but they also left citing some genuine reasons. The accused arrived at the spot at about 3:50 pm. The secret informer left the spot after identifying the accused. After waiting for about 15 minutes the accused started returning.
1.3 Accused was apprehended by the police party. He disclosed his name as Paul Anthony, son of Anthony, resident of 1022/2, A-Block, Mahipal Pur, New Delhi. SI Deepak Kumar informed the ACP. ACP told him that he was at Begam Pur, Kanjhawala Road, which was at a distance of about one and a half hours from the spot. He instructed SI Deepak Kumar to proceed. Notice under section 50 of the Act was served upon the accused. Accused was conversant with Hindi language as well as English language. He wrote his reply in English on the carbon copy of the notice. He did not opt for his search in the presence of a G.O. or Magistrate. On search of the accused, 426 Grams of substance was recovered, which tested positive for Heroin. One sample of 20 Grams was drawn. FSL form was filled. The sample and the remaining substance were sealed with the seal of SPL CELL SR1. Seal was also affixed on the FSL S.C. No. 6604/2016 State vs. Paul Anthony 3/55 form. Seizure memo was prepared. After use, the seal was handed over to SI Shishu Pal. SI Deepak Kumar prepared rukka. SI Ranjit Singh, who is second IO of the case also arrived at the spot on being told by the D.O. at the office of Special Cell at about 5 pm that SI Deepak Kumar had apprehended a person with drugs and he was required to go to the spot as per instruction of senior officers.
1.4 SI Deepak Kumar sent rukka, sample, case property, copy of seizure memo and the FSL form to PS-Special Cell, Lodhi Colony through HC Balraj with instruction to hand over the rukka to the D.O. and the other articles to the SHO PS- Special Cell. SI Deepak Kumar handed over the accused and the memos to SI Ranjit Singh. SI Ranjit Singh recorded the statement of SI Deepak and prepared the site plan at his instance.
1.5 On the rukka, the FIR was registered. The process of registration of the FIR was started at 7:50 pm vide DD No. 8 and it was completed at 9 pm vide DD No. 10. SHO Inspector Ramesh Lamba received the articles sent to him and deposited the same in the Malkhana after affixing his own seal and S.C. No. 6604/2016 State vs. Paul Anthony 4/55 mentioning the FIR number. He made DD Entry No. 9 at 8:15 pm in this regard.
1.6 FIR number was conveyed to SI Ranjit Singh by HC Balraj by phone. SI Ranjit Singh arrested the accused at about 8:20 pm and prepared his arrest memo, personal search memo, inspection memo etc. Thereafter, the accused was brought to PS-Lodhi Colony, where his personal search articles were deposited in the Malkhana. From PS-Lodhi Colony, the accused was brought to office of Special Cell/SR at New Friends Colony. It was disclosed that accused had been declared P.O. by the Court of MM-06 (South), Saket Courts in FIR No. 62/08 vide order dated 06.04.2013.
1.7 Statements of SI Shishu Pal and HC Balraj were recorded under Section 161 Cr.PC. One day police remand of the accused was obtained and efforts were made to search his associate at the Church, Sector-23, Dwarka, but the associate was not found. The FSL result was filed with supplementary charge sheet on 20.03.2015. As per the FSL report, the substance was found to be Diacetylmorphine, 6- Monoacetylmorphine and Caffeine. The percentage of S.C. No. 6604/2016 State vs. Paul Anthony 5/55 Diacetylmorphine was found to be 77.6%.
2.1 To prove its case, prosecution has examined eleven witnesses i.e. PW1 Ct. Gulshan Kumar, PW2 HC Prit Pal, PW3 SI Deepak Kumar, PW4 ASI Uma Shankar, PW5 SI M. Baxla, PW6 SI Shishu Pal, PW7 ACP Satyavir Singh, PW8 Inspector Ramesh Chander Lamba, PW9 HC Lalit Kumar, PW10 ASI Balraj Singh and PW11 SI Ranjit Singh.
2.2 PW1 Sh. Gulshan Kumar has stated that on 16.12.2014, he was posted at Special Branch, Southern Range, Special Cell. On direction of the IO, he collected one sealed pulanda and FSL form from the MHC(M) vide RC No. 152/21/14 dated 16.02.2014 and deposited the same with FSL, Rohini. The acknowledgement issued by FSL has been exhibited by him as Ex. PW1/A. 2.3 PW2 HC Prit Pal has stated that he was the Duty Officer at PS-Special Cell on 13.12.2014 and his duty was from 4 pm to 12 Night. At about 7:50 pm, HC Balraj brought the rukka sent by SI Deepak Kumar, on which the FIR was registered by WCt. Suman. Computerized copy of the FIR has been exhibited as Ex. PW2/A. He has also stated that he made S.C. No. 6604/2016 State vs. Paul Anthony 6/55 endorsement Ex. PW2/B on the rukka under his signature at point A. DD No. 8 (regarding Kayami of the FIR) has been exhibited as Ex. PW2/C and DD No. 10 (regarding Bandi Kayami of the FIR) has been exhibited by him as Ex. PW2/D. The certificate u/s 65 B of The Evidence Act, has been exhibited by him as Ex. PW2/E. 2.4 PW3 SI Deepak Kumar is the first IO of the case and he has deposed on the lines of the facts narrated in the rukka. Copy of the notice under section 50 NDPS Act, has been exhibited by him as Ex. PW3/A and reply of the accused has been exhibited as Ex. PW3/B. He has stated that he took one sample of 20 gms., which was sealed in a cloth pulanda with the seal of SPL CELL SR1 and given identification mark MARK S1. The case property was also similarly converted into pulanda Mark A. He filled the FSL form. The sample, case property and FSL form were taken into possession vide seizure memo Ex. PW3/C. The rukka which was sent by him is Ex. PW3/D. The site plan prepared by the IO at his instance, is Ex. PW3/E. He has identified the case property which was exhibited as Ex. P1. The brown colour tape with which the recovered substance had S.C. No. 6604/2016 State vs. Paul Anthony 7/55 been covered at the time of recovery was exhibited as Ex. P2. He also identified the sample Mark S1. The sample was exhibited in his statement as Ex. P3. The original notice u/s 50 of NDPS Act served by him upon the accused, was exhibited by him as Ex. P3.
2.5 PW4 ASI Uma Shankar has deposed that on 14.12.2014, he was posted as Reader to the ACP at the office of Special Cell, Southern Range, New Friends Colony, Delhi. On 13.12.2014, SI Ranjit Singh came to his office and handed over to him DD No. 15 after it was seen by the ACP. SI Ranjit Singh also handed over the report under Section 57 of NDPS Act, which had been forwarded by Inspector Rahul. 14.12.2014 was Sunday and therefore, he put up the report u/s 57 NDPS Act before the ACP on 15.12.2014. The DD No. 15 was exhibited by him as Ex. PW4/A and the report under Section 57 NDPS Act has been exhibited by him as Ex. PW4/B. Perusal of record shows that exhibit Mark Ex.PW4/A has actually been put on the handwritten information sent by SI Deepak to the ACP and not on copy of DD No. 15. He produced the register in which the entry of the report under Section 57 NDPS Act was made at S.C. No. 6604/2016 State vs. Paul Anthony 8/55 serial no. 3684. Copy of the register has been exhibited as Ex. PW4/C. 2.6 PW5 SI M. Baxla has deposed that on 13.12.2014, he was posted as ASI at Special Cell and he was the MHC(M). Inspector Ramesh Lamba, SHO called him in his office and handed over two pulandas, FSL form and carbon copy of the seizure memo. The pulandas and the FSL form had the seals of Special Cell SR 1 and Special Cell SHO 1. He deposited the same in Malkhana by making entry no. 2475 which was also signed by the SHO. Copy of the entry is Ex. PW5/A. SI Ranjit Singh deposited the personal search articles of the accused vide entry no. 2476 in register no. 19 and copy thereof is Ex. PW5/B. On 16.12.2014, on the direction of the IO, he handed over parcel S1 (Sample) duly sealed with the seals as mentioned above and the FSL form having the facsimile of the above mentioned seals, for depositing them at FSL, Rohini vide RC No. 152/21/2014. Entry in this regard was made at serial no. 2475 which has been exhibited as Ex. PW5/C. Ct. Gulshan deposited the articles at FSL, Rohini and handed over acknowledgement with copy of RC. The case property and the S.C. No. 6604/2016 State vs. Paul Anthony 9/55 sample were not tampered during the period for which they remained in his custody. Copy of RC has been exhibited by him as Ex. PW5/D. The acknowledgement issued by FSL is already Ex. PW1/A. On 18.03.2015, Ct. Gulshan collected the result from FSL and handed over the same to him. He made entry at serial no. 2475 in register no. 19 which is Ex. PW5/B. On 20.01.2015, SI Ranjit Singh took passport of the accused from him for investigation and he made entry to his effect at serial no. 2476 in register no. 19.
2.7 PW6 SI Shishu Pal has deposed that on 13.12.2014, he was posted as SI at Special Cell, SR, New Delhi. He was a member of the raiding party and he has also deposed on the line of the facts mentioned in the rukka. He has identified the carbon copy of notice u/s. 50 NDPS Act which is Ex. PW3/A. He has deposed that the recovery was effected in his presence. The arrest memo of the accused has been exhibited in his statement as Ex. PW6/A and the personal search memo of the accused has been exhibited as Ex. PW6/B. The disclosure statement of the accused has been exhibited as Ex. PW6/C. The passport and the other personal search articles of the S.C. No. 6604/2016 State vs. Paul Anthony 10/55 accused have been exhibited collectively as Ex. P5. 2.8 PW7 ACP Satyavir Singh has deposed that on 13.12.2014, he was posted as ACP, Special Cell, Southern Range, New Friends Colony. On that day at about 2:15 pm SI Deepak informed him on his mobile phone no. 9810448999 regarding the secret information which was received at 1:45 pm and recorded vide DD No. 15 at 2:05 pm. He instructed SI Deepak Kumar to take action. He has also stated that SI Deepak Kumar produced the handwritten information and DD No. 15 before him. The handwritten information is Ex. PW4/A and DD No. 15 has been exhibited by him as Ex. PW7/A. On 15.12.2014, ASI Uma Shankar had put up the report Ex. PW4/B u/s. 57 NDPS Act before him. SI Ranjit Singh produced the accused Paul Anthony before him in his office. He identified the attested copies of DD No. 15 and 16 issued by him as Mark A and B. Copy of DD No. 9A of Special Cell, Lodhi Colony has been marked by him as Mark X. 2.9 PW8 Inspector Ramesh Chand Lamba has deposed that on 13.12.2014 he was posted as SHO PS-Special Cell, Lodhi Colony. On that day at 7:45 pm, HC Balraj came to the S.C. No. 6604/2016 State vs. Paul Anthony 11/55 PS with a rukka sent by SI Deepak on which the FIR was registered. HC Balraj reported to him with two sealed pulandas Mark A and Mark S1, which were sealed with the seal of SPL CELL SR1. He also produced carbon copy of seizure memo and one FSL form bearing the same seal. Everything was in order. He mentioned the FIR Number on the pulandas and the documents in his own handwriting. He affixed his seal of SHO SPL CELL 1 on the pulandas and the FSL form. Remark in this regard was made in the FSL form. Ld. Addl. PP confronted him with his statement u/s. 161 Cr.P.C. and he admitted that his seal was actually SPL CELL SHO 1 which was used by him. He further deposed that he called the MHC(M) and handed over the pulandas and the documents with direction to make the entries in register no. 19 and to obtain his signatures against the said entries. The entry was made at serial no. 2475 in register no. 19 as already mentioned above and same is Ex. PW5/A. He has exhibited DD No. 9A as Ex. PW8/A. He has identified the pulandas and the entries made by him. 2.10 PW9 HC Lalit Kumar has deposed that on 13.12.2014, he was posted as HC/Storekeeper at Special Cell, S.C. No. 6604/2016 State vs. Paul Anthony 12/55 SR, NFC, Delhi. At about 2:20 pm, he issued the seal of SPL. CELL SR1 to SI Deepak against the entry Ex. PW9/A. The said seal was returned to him by SI Shishu Pal on 13.12.2014 at about 10:30 pm against entry Ex. PW9/B. 2.11 PW10 ASI Balraj Singh has deposed that on 13.12.2014, he was posted as HC at Special Cell, Southern Range, NFC. He was the member of raiding party constituted by SI Deepak on the direction of ACP Satyavir Singh. He has also deposed on the line of the facts mentioned in the rukka. He had identified his signature at point B on carbon copy of the notice u/s 50 NDPS Act Ex. PW3/A. He has also identified his signature at point C on the endorsement on Ex. PW3/D. He has deposed that the case property and the sample Mark A and S1 were seized in his presence with FSL form vide memo Ex. PW3/C. He went to PS Special Cell, Lodhi Colony with the rukka, Mark A, Mark S1, carbon copy of the seizure memo and FSL form. He handed over the rukka to the Duty officer and the other articles/documents to the SHO. He telephonically informed the FIR number to SI Ranjit Singh and handed over the originally rukka and copy of FIR to him when he returned to S.C. No. 6604/2016 State vs. Paul Anthony 13/55 the office of Special Cell at NFC with the accused. He has also identified Ex. P1 (polythene in which recovered Heroin was kept), Ex. P2 (brown colour tape which was affixed on the polythene), Ex. P3 (sample pouch) and Ex. P4 (original notice u/s. 50 NDPS Act).
2.12 PW11 SI Ranjit Singh is the second IO of the case. He has deposed that on 13.12.2014, he was posted at Special Cell, SR, NFC, Delhi. The Duty Officer verbally informed him that SI Deepak had apprehended a person at Mahipal Pur Bypass with drugs and senior officers had directed him to take up the investigation as the second IO. He reached the spot. Original seizure memo and the recovered drug was handed over to him. He arrested the accused vide arrest memo Ex. PW6/A. He conducted personal search of the accused on which one black colour purse was found which contained notice under Section 50 NDPS Act, Rs. 1560, Driving License etc. Passport of accused was also found. The personal search articles were taken into possession vice memo Ex. PW6/B bearing his signature at point B and signature of the accused at point C. At the instance of SI Deepak Kumar, he prepared the site plan Ex. S.C. No. 6604/2016 State vs. Paul Anthony 14/55 PW3/E. HC Balraj informed him about the FIR number. From the spot, he went to PS with the accused and deposited the personal search articles in the Malkhana. Thereafter, he went to the office at NFC with the accused and produced him before Inspector Rahul Sawhney. Accused disclosed that he was P.O. in case FIR No. 62/08, Special Cell. He recorded the disclosure statement of the accused which is Ex. PW6/C. Accused was kept in custody in the office and on 14.12.2014, he was produced before the Court. His PC Remand was obtained. Accused disclosed that his friend to whom he was going to supply the drugs, usually visits the Church at Sector 23, Dwarka. Efforts were made to apprehend the friend of the accused but he was not found. Accused was taken to his house at 1022/2, A-Block, Mahipal Pur. Sister of the accused and a boy called Sony were present. Nothing incriminating was found at the house of the accused. Accused was allowed to take his inhaler which was needed by him as medicine. Medical examination of the accused was got conducted at Safdarjung Hospital. He submitted the report Ex. PW4/B u/s. 57 NDPS Act to ACP Satyavir Singh. The FSL report has been exhibited by S.C. No. 6604/2016 State vs. Paul Anthony 15/55 him as Ex. PW11/A. Passport of the accused was found to be genuine and copy of the passport has been exhibited as Ex. PW11/B. He has also identified Ex. P4 (notice u/s. 50 NDPS Act).
3.1 Statement of accused was recorded under section 313 Cr.PC on 24.08.2016. He denied the allegations against him. He alleged that he was arrested from his house on 11.12.2013 at about 9:30/10 pm. He further stated that he was kept in the office of Special Cell and forced to sign some documents. After his arrest on 11.12.2013, he called a driver Mr. Sonu, who was living in the same building in which he was residing. Mr. Sonu followed the accused and the police to the office of Special Cell and remained there till about 12:30 am. SI Deepak Kumar had taken his (accused) two mobile phones, medicated glasses, two silver rings and a wallet. From one of the mobile phones, he called his sister and she came to the PS on the next day i.e. 12.12.2013. She again visited the PS with Mr. Sonu on 13.12.2014. SI Deepak Kumar demanded money from his sister and on refusal he was beaten.
3.2 Accused examined DW1 Sh. Dinesh Singh, S.C. No. 6604/2016 State vs. Paul Anthony 16/55 Alternate Nodal Officer, Vodafone Mobile Services Ltd., DW2 Sh. Ajay Kumar, Nodal Officer, Bharti Airtel Ltd., DW Mr. Sona Kumar (also numbered as DW1) and himself (numbered as DW2). In his deposition before the Court, the accused made the same allegation as in his statement under section 313 Cr.PC. He also stated that he gave a total sum of Rs. 1,60,000/- to the police against the demand for Rs. 5 Lakhs. The accused further stated that he consumes Heroin and 10 gms. of Heroin was recovered from his house.
3.3 DW1 Mr. Dinesh Singh produced CDR and CAF of mobile numbers 8860250283 and 8447858130. DW1 also produced the Cell ID Chart for the two mobile numbers. Mobile no. 8860250283 is issued in the name of Smt. Rajni Sachdeva W/o Sh. Ashok Sachdeva R/o 17 GF, VB Block, Virender Nagar, Delhi-64 and mobile no. 8447858130 is issued in the name of Sh. Ranjit S/o Sh. Gurdev Singh R/o 4815, Baljit Nagar, Delhi. Accused claims that he was using these two mobile numbers, which were seized by SI Deepak Kumar, but not disclosed. DW2 produced the CDR, CAF and Cell ID Chart for mobile number 9818871419, which was in the name of Mr. Sona Kumar S/o Sh. S.C. No. 6604/2016 State vs. Paul Anthony 17/55 Chet Narayan Singh, R/o C-54, Gali No. 2, Qutub Vihar, Phase-2, Delhi. DW Mr. Sona Kumar is the driver mentioned by the accused in his statement under section 313 Cr.PC. Accused had moved an application u/s. 311 Cr.P.C. for recalling PW3. In the order sheet dated 23.8.2017, it is mentioned that Ld. Counsel for the accused pressed this application. The application was listed on 01.09.2017 for arguments. On 01.09.2017, accused pressed his application for recalling of DW Sona Kumar and there is no order regarding the application under section 311 Cr.P.C. for recalling PW3. The said application for recalling PW3 was not pressed further by the accused.
3.4 Examination-in-chief of Mr. Sona Kumar was recorded on 1.2.2017. His cross-examination on behalf of State was deferred. Mr. Sona Kumar did not appear again for his cross-examination. On request of the accused, summon was issued to Mr. Sona Kumar but he could not be served. Ld. Counsel for the accused informed the Court on 13.09.2017 that Mr. Sona Kumar was in Bihar Jail but the particulars were not given and D.E. was closed by the Court vide order dated S.C. No. 6604/2016 State vs. Paul Anthony 18/55 01.09.2017.
3.5 During trial, several applications were moved by the accused for preservation and production of the data pertaining to mobile phone number 9810448999 (mobile number of ACP Satyavir Singh), mobile numbers of 8860250283 and 8447858130, mobile number 9818871419 (mobile number of Mr. Sona Kumar) and mobile numbers 8447741672 and 8447741692 (both belonging to SI Deepak Kumar). The CDR of the mobile phones of SI Deepak Kumar was not produced as the CDR is not retained after one year. Accused claimed that after one year, the data is transferred in magnetic tapes. Accused wanted the data to be retrieved from the magnetic tapes and to be produced before the Court. Summon in this regard was to be served upon the IT Department of the mobile service provider. Earlier his application in this regard was declined vide order dated 19.10.2016. However, vide order dated 02.03.2017, the prayer was allowed in respect of mobile no. 8447741692 only. On 22.03.2017, the Alternate Nodal Officer, Vodafone informed that the data is not preserved beyond one year. On S.C. No. 6604/2016 State vs. Paul Anthony 19/55 03.05.2017, also same submission was made by the Nodal Officer of Vodafone. He also disputed the claim of Ld. Counsel for the accused that the data would be available in the magnetic tape. Thereafter, the accused did not take steps to get summon issued to the IT Department of Vodafone and D.E. was closed vide order dated 01.09.2017 as mentioned above.
4. I have heard the arguments of Mr. F.M. Ansari, Ld. Additional PP for State and the arguments of Mr. Anoop Kumar Gupta, Ld. Counsel for the accused. Ld. Counsel for the accused has also filed written submissions. Ld. Counsel for the accused has relied upon following judgments : (a) Union of India Vs. Bal Mukund 2009 (12) SCC 161, (b) Hawa Singh vs. State of Haryana 2005 (4) R.C.R. (Crl.) 292, (c) Pradeep Kumar vs. The State 1989 (39) DLT 456, (d) Ram Prakash vs. State 2014 (146) DRJ 629, (e) Nathiya & Ors. vs. State of Rajasthan 1992 Crl.L.J. 2342, (f) Mohd. Masoom vs. State of NCT of Delhi 2015 (219) DLT 271 and (g) Gurbax Singh vs. State of Haryana 2001 AIR (SC) 1002.
5. Ld. Addl. PP submitted that prosecution has proved the case beyond reasonable doubt. The contradictions and the S.C. No. 6604/2016 State vs. Paul Anthony 20/55 discrepancies pointed out by Ld. Counsel for accused are minor and they do not go to the root of the matter. Accused has taken false defence and this goes against him. According to Ld. Addl. PP all statutory compliances were made and the allegation of the accused that he has been falsely implicated, is not believable. The commercial quantity for Heroin his 250 gms. If police had to falsely implicate the accused for commercial quantity of Heroin, they could have used just above 250 gms. and they would not have planted 426 gms. of Heroin of high purity of 77.6%. Ld. Addl. PP also submitted that Section 58 of The Act provides stringent punishment against vexatious entry, search, seizure or arrest and no police officer would take the risk of falsely implicating the accused. Ld. Addl. PP for State has relied upon the judgment titled Chand Singh vs. The narcotics Control Bureau, 2016 [1] JCC (Narcotics).
6.1.1 Case of the prosecution and the relevant portions of the testimony of the witnesses examined by the prosecution have already been mentioned above. I shall now examine the contradictions/discrepancies pointed out by Ld. Counsel for the S.C. No. 6604/2016 State vs. Paul Anthony 21/55 accused.
6.1.2 The first submission in this regard is that the case of the prosecution is falsified by the testimony of PW2 HC Prit Pal. He did not produce the FIR register. Loose copy of the FIR was produced by him. W/Ct. Suman, who recorded the FIR has not been examined as a witness and PW2 is not competent to prove the certificate u/s. 65B of The Evidence Act. He has stated that when HC Balraj came to him for registration of the FIR, he was not having anything in his hands. He had kept the rukka in his pocket. He also deposed that HC Balraj came to him at 7:50 pm and remained with him till 9 pm. During this time he did not go anywhere. PW2 stated that Inspector Lamba called for the DD Register in his office at 8-8:15 pm and he left the register with him for about 30 minutes. In his statement u/s. 161 Cr.P.C. Inspector Ramesh Lamba stated that HC Balraj came to the PS at about 7:45 pm and requested the DO to register the FIR. Thereafter, he appeared before him and handed over the case property, sample, carbon copy of seizure memo and FSL form.
6.1.3 Ld. Counsel for the accused submitted that there S.C. No. 6604/2016 State vs. Paul Anthony 22/55 are no traces of folding on the rukka Ex. PW3/D. Had HC Balraj kept the rukka in his pocket, it should have fold marks. PW2 has stated that from 7:50 to 9 pm, HC Balraj was sitting with him. This shows that HC Balraj did not appear before the SHO/PW8 to handover the pulandas and the documents. The statement of PW2 also shows that HC Balraj was not carrying the pulandas and the documents. According to Ld. Counsel for the accused, these discrepancies have surfaced as the entire proceedings were done in the office/PS and no recovery was effected from the spot.
6.1.4 Ld. Addl. PP submitted that PW2 is only concerned with the registration of FIR. His duty was not to check whether HC Balraj also brought the sealed pulandas and the documents from the spot. In his eagerness to answer the questions put to him, PW2 appears to have made statements without having proper knowledge in that regard. Question has not been put to ASI Balraj Singh/PW10 (HC at the relevant time) as to where he had kept the rukka when it was presented by him to the DO. PW10 could have answered this question. This question was deliberately not put to PW10. PW11 is a senior and responsible S.C. No. 6604/2016 State vs. Paul Anthony 23/55 officer. When the witnesses are examined, there may be some variance in their statements regarding the sequence of events but the Court has to consider the documentary proof. PW8 Inspector Ramesh Lamba who was SHO PS-Special Cell, Lodhi Colony at the relevant time made the DD Entry No. 9A Ex. PW8/A in his own handwriting. Before that DD No. 8A regarding Kayami FIR had already been made by PW2. PW2 has stated that he produced the DD register before PW8 at 8-8:15 pm. The FIR is registered on computer and as such the timings cannot be manipulated. FIR is also uploaded on the internet. PW2 made DD No. 10A regarding Bandi Kayami and this was done after PW8 made the entry in the register at 8:15 pm vide Ex. PW8/A. Therefore, there is no doubt that the two sealed pulandas Mark A and S1, carbon copy of the seizure memo and the FSL form were handed over by PW10 to PW8. PW8 handed over the same to the MHC(M) who has been examined as PW5. PW5 made the entry in register no. 19 at serial no. 2475 which is Ex. PW5/A and it was signed by the SHO/PW8 at point C. There is no room for any doubt as argued by Ld. Counsel for the accused.
S.C. No. 6604/2016 State vs. Paul Anthony 24/55 6.2.1 Ld. Counsel for the accused has raised doubt about receiving of the case property and the sample by the SHO/PW8. He has also raised doubt about sending of the sample to FSL and it is submitted that there is violation of Section 52 NDPS Act. PW8 retained his seal after allegedly affixing the same on the pulandas and the documents. This provides opportunity for tampering of the case property and sample. PW8 stated that he did not give direction for sending the sample to FSL. In his examination-in-chief as well while making entry on Ex. PW8/A, PW8 Inspector Ramesh Lamba described his seal as "SHO SPL CELL1". The correct description of his seal is "SPL CELL SHO 1". It is not probable that he would have described his seal incorrectly just after allegedly using it at the time of making the DD entry Ex. PW8/A. He corrected himself only when Ld. Addl. PP asked him in this regard. According to Ld. Counsel for the accused, doubt is created on the story of prosecution. 6.2.2 Ld. Addl. PP submitted that due to habit PW8 might have erred in mentioning the words of his seal in the right order. The entry in the Malkhana register correctly describes the seal. The entry Ex. PW5/A was made in register no. 19 just S.C. No. 6604/2016 State vs. Paul Anthony 25/55 after the entry Ex. PW8/A was made. PW5 who was the MHC(M) at the relevant time has testified that the two pulandas were sealed with the seal of Special Cell SHO 1 and Special Cell SR 1. Same seals were affixed on the FSL form also. In his cross-examination, there is no question regarding the correctness of the seal of SHO. PW1 took the sample and the FSL form to FSL, Rohini. He has stated that the parcel remained intact in his custody. There is no cross-examination of PW1. Ld. Addl. PP further submitted that merely raising suspicion regarding possibility of tampering of the case property or sample, is not sufficient.
6.3.1 The next point raised by Ld. Counsel for the accused is based on the statement of PW7 ACP Satyavir Singh to cast doubt on the manner and time of recovery. PW7 stated that SI Deepak Kumar produced before him the handwritten information Ex. PW4/A and true copy of DD no. 15 Ex. PW7/A. The date and time on these two documents below the signature of PW7, are mentioned as "13.12.14 at 6 pm". SI Deepak/PW3 has stated that he sent the rukka at about 6:45 pm and left the spot at 7:15 pm. He could not have shown S.C. No. 6604/2016 State vs. Paul Anthony 26/55 Ex.PW4/A and Ex. PW7/A to the ACP/PW7 at 6 pm on 13.12.2014. This shows that the raid was not conducted and recovery was not effected on the date and time claimed by the prosecution. Documents were prepared in the office and therefore, discrepancies have surfaced.
6.3.2 Ld. Addl. PP submitted that PW7 faulted while making the statement regarding Ex. PW4/A and Ex. PW7/A. PW4 ASI Uma Shankar has deposed that on 14.12.2014, SI Ranjit Singh came to his office and handed over to him DD No. 15 dated 13.12.2014 after getting it seen by the ACP and the report u/s. 57 NDPS Act forwarded by Inspector Rahul. It has already been mentioned above that there was an error while marking the document at the time of evidence. The handwritten information has been exhibited in the Court file as Ex. PW4/A and the DD Entry no. 15 was exhibited as Ex. PW7/A. The DD Entry was not shown to PW7 by SI Deepak and PW7 appears to have been made the statement due to some confusion. He was not confronted with the statement of PW4 and he was not asked as to how SI Deepak could submit the information Ex. PW4/A and DD No. 15 Ex. PW7/A to him at 6 pm S.C. No. 6604/2016 State vs. Paul Anthony 27/55 on 13.12.2014. SI Ranjit Singh had left the office on 13.12.14 before 6 pm and therefore, he could also not have shown DD No. 15 to the ACP at 6 pm on 13.12.14. Ld. Addl. PP has submitted that PW4 was examined on 23.12.2015 by the Ld. Substitute Addl. PP. He was not aware about complete facts of the case and therefore, discrepancy appeared in the statement of PW4 who was otherwise a formal witness. PW3 SI Deepak Kumar and PW11 SI Ranjit Singh have not stated that they produced the documents Ex. PW4/A and Ex. PW7/A before the ACP (PW7). In the cross-examination of PW11, no question has been asked in this regard. According to the prosecution, the recovery had already been effected at about 4:05 pm. In his cross-examination, PW3 has mentioned the timings of different steps taken by him in detail. In the present case, compliance of Section 42 NDPS Act was not mandatory as the recovery was effected from a public place. The discrepancy created due to the statement of PW4 and PW7 regarding the document Ex. PW4/A and Ex. PW7/A is not major contradiction which may go to the root of the matter, specially if the recovery is not doubtful.
S.C. No. 6604/2016 State vs. Paul Anthony 28/55 6.4.1 According to the Ld. Counsel for accused, the claim of the prosecution regarding receipt of the secret information is doubtful. Prosecution claims that secret information was received at the NFC office at 1:45 pm and the raiding party left the office at about 2:20 pm after making DD Entry no. 16 on 13.12.14. The accused was having two mobile phones with no. 8860250283 and 8447858130, which were seized by the IO/ PW3 but not disclosed. The CDR and the location of mobile number 8447858130 show that the said mobile number was active in the area of NFC and it has been mentioned in a chart in the written arguments. The call starts on 12.12.2014 at 23:11 hours and the last call is at 21:23 :35 hours. Similarly the mobile phone number 8860250283 was active in the same location from 22:58:52 hours on 12.12.14 to 15:10:49 hours on 14.12.14.
6.4.2 Ld. Counsel for accused submitted that the two mobile numbers are not issued in the name of the accused but how would he know that out of million of numbers active in Delhi, the two particular numbers were active in the area of NFC, if he was not the user of those two mobile phones. Ld. S.C. No. 6604/2016 State vs. Paul Anthony 29/55 Counsel further submitted that no purpose would have been served by calling the CDR and location chart of the mobile phone of ACP. According to Ld. Counsel for the accused, the first IO SI Deepak Kumar deliberately did not disclose his mobile numbers earlier so that period of one year could lapse. The details of the mobile phone of SI Deepak Kumar would have shown his presence in the area where the accused resided on 11.12.2014. It is alleged that the police deliberately did not show the mobile phones of the accused in his personal search. It is not expected that accused was not using any mobile phone. Reliance is placed on the observations made by Hon'ble High Court in paragraph 23 of the judgment in Mohd. Masoom's case (Supra) and reference is also made to the judgment by Hon'ble Delhi High Court in the matter of Ram Prakash vs. State. To create doubt about the secret information, it is also submitted that HC Balraj was a member of the team who had earlier arrested the accused but there is no material on recored to show that he had informed the IOs of the case that he already knew the accused.
6.4.3 Ld. Addl. PP submitted that there was no reason for S.C. No. 6604/2016 State vs. Paul Anthony 30/55 SI Deepak to hide his own mobile numbers. The mobile number of the ACP was mentioned in the rukka on the basis of which the FIR was registered. Accused moved the application for preservation of the record of the mobile number of the ACP and the IO SI Ranjit Singh got the record preserved. Accused did not opt for calling the record of the mobile number of the ACP in the Court. Accused himself delayed the matter. The accused has not explained as to how he got the two mobile numbers which were issued in the names of two different persons residing at two different places. It is not the duty of the prosecution to guess how the accused picked up two mobile numbers. Regarding HC Balraj, Ld. Addl. PP submitted that in his statement before the Court, he clarified that before the raid, he was not sure whether the person named in the information, was the same Paul Anthony who had been arrested by him earlier. The CDR and location chart relied upon by the accused also do not support his allegation that he was illegally arrested from his house on 11.12.2014 at about 9:30- 10:00 pm. 6.4.4 Ld. Add. PP further submitted that at the time of S.C. No. 6604/2016 State vs. Paul Anthony 31/55 arrest, it was for the accused to disclose the number of the telephones which he might be using to be in touch with the receiver of the contraband. Ex. PW6/C is the disclosure statement of the accused. In this statement, no telephone numbers are mentioned. He was produced before Ld. Duty M.M. on 13.12.2014 and at that time also he did not disclose any mobile number. He moved an application on 10.02.2015, in which he mentioned two mobile phones but did not mention mobile numbers of those mobile phones. Under these circumstances, police cannot be faulted for not making investigation regarding the telephone number which the accused might be using to be in touch with his suppliers and receivers.
6.5.1 The next issue raised by Ld. Counsel for the accused is regarding absence of public witness. PW3 SI Deepak who was the first IO, has admitted that he did not call the Sepoy from the CISF Camp. The accused was living nearby the place from where he was allegedly arrested but no attempt was made to call anyone from his house.
6.5.2 Ld. Addl. PP submitted that PW3 SI Deepak S.C. No. 6604/2016 State vs. Paul Anthony 32/55 requested 2 public persons at Nehru Place and 2 public persons at the spot also to join the proceedings, but they did not agree. Their names and addresses were noted by him. The police party reached the spot at about 3:15 pm. The accused was expected to arrive there shortly and therefore, there was no sufficient time to visit any office or house nearby to call any public witness. Regarding calling Sepoy from CISF Camp, Ld. Addl. PP submitted that on the gate of the camps of paramilitary forces, there are guards, who cannot leave the gate and the offices are far inside. Therefore, it is not practical to call a witness from a Camp of paramilitary force. If somebody would have been called from the CISF Camp, he would also have been a police personnel.
6.6.1 Ld. counsel for accused submitted that PW3 SI Deepak could not tell the expiry date of the chemicals in the testing kit and he could also not tell the colour which is produced on testing Heroin with the help of the chemical in the testing kit. According to Ld. Counsel for the accused, this shows that PW3 SI Deepak did not conduct the test at the spot. 6.6.2 Ld. Addl. PP submitted that the expiry date of the S.C. No. 6604/2016 State vs. Paul Anthony 33/55 chemicals might not have been noted by PW3. He seized and tested the contraband on 13.12.2014. He was cross-examined on 01.06.2016. Due to lapse of time, he might have forgotten the colour which is produced on testing of Heroin with the Field Testing Kit.
7.1.1 Ld. Counsel for the accused submitted that there is non-compliance of section 52 NDPS Act as the accused was not produced before the SHO, though PW11 claims that he was taken to the PS after arrest from the spot. PW11 claims that the accused was produced before Inspector Rahul Sawhney but he has not been cited and examined as a witness in this case by the prosecution.
7.1.2 Ld. Addl. PP submitted that the provision under section 52 NDPS Act is directory. Under Section 57 NDPS Act, report regarding arrest of accused was to be submitted to the immediate superior officer within 48 hours. ACP Satyavir Singh who was heading the unit, had already been informed about the arrest of the accused and the recovery. Accused was produced before Inspector Rahul Sawhney, who forwarded the report under Section 57 NDPS Act Ex. PW6/C to ACP Satyavir S.C. No. 6604/2016 State vs. Paul Anthony 34/55 Singh. Therefore, there is substantial compliance of the provisions of NDPS Act.
7.2.1 Evidence was recorded by Ld. Predecessor of this Court. While going through the file, I wanted to see the original DD Register containing DD entries no. 8A to 10A as well as the original seal issue/deposit register, copy of which has been exhibited on record of this case as Ex. PW9/A. The DD register was found to be in order. However, some discrepancies were observed in the seal issue/deposit register. Numeral 13 in the entry Ex. PW9/B dated 13.12.14 regarding return of the seal by SI Shishu Pal was mentioned after application of correction fluid. In the photocopy of the register which is on record, there is no alteration of the date (09.01.2015) regarding deposit of seal by Inspector Rahul vide DD NO. 12 in respect of some other case. However, in the original register when it was produced before me, there was alteration in the date of the said entry.
7.2.2 In his statement u/s. 161 Cr.P.C. recorded on 30.12.14 by the IO PW11 SI Ranjit Singh, HC Lalit Kumar stated that the seal was returned by SI Shishu Pal on 14.12.2014 at 10 S.C. No. 6604/2016 State vs. Paul Anthony 35/55 O' Clock. Ld. Counsel for the accused submitted that the use of correction fluid shows that the entry Ex. PW9/B is manipulated. 14.12.2014 was changed to 13.12.2014. Ld. Counsel for the accused further submitted that tampering of the other entry in the register shows the conduct of the police officers and it also reflects the possibility of manipulation/fabrication of documents by them.
7.2.3 Ld. Addl. PP submitted that the date of return of seal appears as 13.12.2014 in the photocopy of the register on record of this case which was exhibited as Ex. PW9/B. If any doubt was created by use of correction fluid, accused could have questioned PW9 HC Lalit Kumar when he was in the witness box. The statement u/s. 161 Cr.P.C. was not put to SI Lalit Kumar. The statement u/s. 161 Cr.P.C. was also not got proved from the IO/PW11. If there is any change of date regarding the entry pertaining to some other case, that issue is to be raised in the concerned case.
7.2.4 The photocopy of the register was taken on record by this Court after conclusion of the final arguments and the same cannot be used in evidence without examining the S.C. No. 6604/2016 State vs. Paul Anthony 36/55 concerned witness and giving opportunity to the accused as well as to the State to cross-examine the witness on the points of discrepancies. The Court asked Ld. Addl. PP as well Ld. Counsel for the accused, if they wanted reexamination of PW9 or examination of any other officer in respect of the discrepancies observed by this Court in the seal issue/deposit register. Both of them replied in negative. Ld. Addl. PP submitted that there is no new fact concerning the present case and therefore, he does not want re-examination of the witness. Ld. Counsel for the accused submitted that the witness will definitely give some explanation and no useful purpose will be served by the re-examination. 7.3.1 Ld. Counsel for the accused submitted that the registration numbers the vehicles by which the police party left the office at NFC, were not mentioned in the DD No. 16. Official vehicle for which logbook is maintained, was not used. In his statement u/s. 161 Cr.P.C. recorded on 16.12.2014 by SI Ranjit Singh, the MHC(M) stated that on 13.12.2014 SI Deepak Kumar had deposited pulandas of FIR No. 57/14 and the FSL form. According to Ld. Counsel for accused, this statement S.C. No. 6604/2016 State vs. Paul Anthony 37/55 falsifies the claim of the prosecution that the pulandas and FSL Form were deposited in the Malkhana by the SHO. 7.3.2 Ld. Addl. PP submitted that in the DD entry mentioning of the registration number of the car and the motorcycle used by the raiding team, was not mandatory. The witnesses have disclosed that the registration numbers of the vehicles in their deposition before the Court. The statement u/s. 161 Cr.P.C. was not got proved from the IO/PW11. It is also to be kept in mind that the pulandas and the FSL form were sent by SI Deepak. The pulandas and the FSL form were taken to the PS by PW10 and they were deposited by PW8. All this was done on behalf of SI Deepak. It was SI Deepak who got the pulandas and documents deposited in Malkhana through HC Balraj. The statement u/s. 161 Cr.P.C. has to be considered and interpreted accordingly.
7.4.1 Ld. Counsel for accused also raised the point regarding non-compliance of circular no. 1/88 issued by the NCB regarding sampling. As per the circulars, two samples are to be taken and the FSL form has to be sealed with the sample in an envelope. In the present case only one sample was taken S.C. No. 6604/2016 State vs. Paul Anthony 38/55 and the FSL Form was not prepared in triplicate. 7.4.2 Ld. Addl. PP submitted that the circular of NCB is not binding on Delhi Police. Further the accused has not pointed out any prejudice that might have been caused to him by not drawing the samples in duplicate.
8.1.1 Having noted the submissions of Ld. Counsel for the accused and the submissions made by Ld. Addl. PP for State, I proceed to record my finding whether prosecution has been able to prove its case beyond reasonable doubt. 8.1.2 Ld. Counsel for accused has relied upon the judgment by Hon'ble Delhi High Court in the matter of Mohd. Masoom (Supra). Paragraph 31 of the judgment contains the principles which had to be kept in mind while analyzing the evidence in a case under NDPS Act. The observations of Hon'ble High Court in paragraph 31 of the judgment are reproduced for reference : "In the light of above referred deficiencies, inconsistencies and discrepancies, statements of the official witnesses without corroboration from independent sources cannot be believed to base conviction for stringent provisions of the Act. The law on this aspect is that "stringent S.C. No. 6604/2016 State vs. Paul Anthony 39/55 the punishment, stricter the proof." In such like cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication. The prosecution has failed to establish the commission of offence by the appellants beyond reasonable doubt. It cannot take benefit of the appellants inability to establish their defence pleaded in 313 statement beyond reasonable doubts. Mere apprehension of the appellants is not enough. The evidence is scanty and lacking to establish that the contraband was recovered from the possession of the appellants in the manner alleged by the prosecution on the said date and time. They deserve benefit of doubt.
8.1.3 What is reasonable doubt, has been explained by Hon'ble Supreme Court in the matter of Iqbal Moosa Patel vs. State of Gujarat (2011) 2 SCC 198. This was also a case under the NDPS Act. The observations made by Hon'ble Supreme Court on paragraph 23 and 24 of the judgment are important and they are reproduced for reference :
23. It is true that the prosecution is required to establish its case beyond reasonable doubt, but that does not mean that S.C. No. 6604/2016 State vs. Paul Anthony 40/55 the degree of proof must be beyond the shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller vs. Minister of Pensions (All ER p.373 H) "....That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'Of course it is possible, but not in the least probable,' the case is proved to beyond reasonable doubt...."
"88. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with the presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt, is not the law of the land."
24. Reference may also be made to the decision of this Court S.C. No. 6604/2016 State vs. Paul Anthony 41/55 in Sucha Singh vs. State of Punjab where this Court has reiterated the principle in the following words : (SCC p.653, para 20) "20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape, is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh). The prosecution is not required to meet every hypothesis put forward by the accused....A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. Case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are thrown to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish." S.C. No. 6604/2016 State vs. Paul Anthony 42/55 8.1.4 Whether the contradictions/discrepancies pointed out by Ld. Counsel for the accused go to the root of the matter, would depend upon the facts of the present case. Only the contradictions and discrepancies which go to the root of the matter, can affect the prosecution. In the matter of Krishna Pillai Sree Kumar vs. State of Kerala 1981 Supp SCC 31 Hon'ble Supreme Court held that minor contradictions and inconsistencies are immaterial. Prosecution case would fall only where the inconsistencies go to the root of the case. In the matter of State of U.P. vs. Ballabh Das (1985) 3SCC 703 Hon'ble Supreme Court held that case of the prosecution cannot be thrown out for minor contradictions and inconsistencies.
8.1.5 The prosecution has to establish that the contraband was recovered from the accused on 13.12.2014 as stated in the charge. It also has to prove that all statutory compliances were made. Compliance of Section 42 and 50 NDPS Act are mandatory wherever they are applicable. In the matter of Mohan Lal vs. State of Rajasthan (2015) 6 SCC 222 Hon'ble Supreme Court held that Section 42 NDPS Act has S.C. No. 6604/2016 State vs. Paul Anthony 43/55 no application where the recovery is made in a public case and Section 43 NDPS Act would apply. In the matter of Babubhai Odhavji Patel & Ors. vs. State (2005) 8 SCC 725, Hon'ble Supreme Court held that the provisions u/s. 52, 55 and 57 NDPS Act are directory and not mandatory. Substantial compliance of these provisions is sufficient. In case of non- compliance, Court will have to see whether any prejudice has been caused to the accused.
9.1.1 On receipt of the secret information, PW3 SI Deepak made the DD entry no. 15 and he informed PW7 ACP Satyavir Singh. ACP Satyavir Singh was not the immediate superior officer of PW3 but he was the In-Charge of the Unit. The police party left the office at NFC after making DD entry no. 16. After the accused was apprehended, information was given to PW7 on his mobile phone and he told PW3 that he was at Begum Pur, Kanjhawala Road which was at a distance about one and a half hours from the spot. The mobile number of PW7 was mentioned in the rukka and the fact that PW7 was at the particular place when the accused was apprehended, could be verified. It could also be verified, from where the call was S.C. No. 6604/2016 State vs. Paul Anthony 44/55 made to him. Therefore, there is no possibility of any manipulation regarding the date, time and place of arrest of the accused. Applying the test laid down by Hon'ble Supreme Court in Iqbal Moosa's case (Supra), prosecution has proved these facts beyond reasonable doubt.
9.1.2 The argument of Ld. Counsel for the accused that PW3 deliberately did not disclose his mobile number to get past the period for which the CDR and cell location detail is maintained, is also without merit. Mobile phone number of PW7 was mentioned in the rukka, which is reproduced in the FIR Ex. PW2/A. It is not the case of the accused that copy of the FIR was not supplied to him. Right from the beginning, he was aware of the mobile number of PW7, from which all other mobile numbers could be ascertained. On his application the record of mobile phone of PW7 was preserved but he did not opt to call that record in the Court. The submissions of Ld. Counsel for the accused that the record of mobile phones of PW3 was deliberately not produced whereas the record pertaining to the two mobile numbers furnished by the accused, was produced after about three years, is also without S.C. No. 6604/2016 State vs. Paul Anthony 45/55 substance. Perusal of the documents at page 601 and 675 of the judicial file shows that the record of the two mobile phone had already been preserved.
9.1.3 PW2 has deposed that he recorded the FIR, which was typed by W/Ct. Suman. DD entries no. 8 and 10A, which are Ex. PW2/C and Ex. PW2/D were made. The SHO PW8 made the DD entry no. 9A Ex. PW8/A regarding receipt of Mark A, Mark S1, carbon copy of the seizure memo and the FSL form. He made the deposit vide entry Ex. PW5/A in register no. 19 of the Malkhana. He signed the entry and also put his date below the entry. The testimony of the witnesses shows that the seals were intact. The error by PW8 in describing his seal appears to be due to inadvertence. In the matter of Sarjudas vs. State of Gujarat (1999) 8 SCC 508, the discrepancy in describing seal was held to be not material.
9.1.4 In this case, recovery was made from public place and therefore, Section 43 NDPS Act would apply. PW3 was empowered to make the search and arrest. The notification is quoted in the judgment by Hon'ble Delhi High Court in the matter of Kamal Thakur vs. The State (Delhi Admn.) 1995 S.C. No. 6604/2016 State vs. Paul Anthony 46/55 JCC 76. However, compliance of Section 42 NDPS Act was also made. The information was reduced in writing vide DD No. 15 Ex. PW7/A and the handwritten information Ex. PW4/A. PW7 ACP Satyavir Singh, who was head of the unit, was informed and Ex. PW4/A as well as Ex. PW7/A were seen by him on 13.12.2014 itself. The discrepancy regarding the time on which these two documents were seen by him, is not material. It has already been held that prosecution has proved the recovery at about 4:05 on 13.12.14 beyond reasonable doubt. 9.1.5 Accused is conversant with Hindi as well as English language. During his appearance before the Court, he has been talking in Hindi and he also understands English. The notice under Section 50 NDPS Act, which is Ex. P4 was served upon the accused and it was recovered in his personal search as mentioned in the personal search memo Ex. PW6/B. The notice clearly records the information against him. Accused was informed about his legal right to be searched in the presence of a Gazetted Officer or Magistrate. He was told that they could be called at the spot and he was also told that he could take the search of the police party and their vehicles S.C. No. 6604/2016 State vs. Paul Anthony 47/55 before his own search was conducted. Carbon copy of the notice is Ex. PW3/A. Accused submitted his reply in his own handwriting which is Ex. PW3/B. Ld. Counsel for the accused has tried to create doubt regarding the reply of the accused by referring to some correction in the reply. Accused knows English language and the correction has been initialed by him. Accused was previously also involved in a case under NDPS Act and it is expected that he understood the notice which was explained to him before conducting his search. There is no defect in compliance of section 50 NDPS Act.
9.1.6 The case property and the sample were deposited in the Malkhana of PS-Special Cell, Lodhi Colony. PW11 has stated that he produced the accused before Rahul Sawhney. Inspector Rahul Sawhney forwarded the report Ex. PW4/B u/s. 57 of NDPS Act to the ACP. Therefore, there is substantial compliance of Section 52, 55 and Section 57 NDPS Act. Non- examination of Inspector Rahul Sawhney does not go against the prosecution.
9.1.7 PW1 has deposed that he took the sample and the FSL form to FSL Rohini. He has stated that the sample S.C. No. 6604/2016 State vs. Paul Anthony 48/55 remained intact in his custody. The sample was sent promptly on 16.12.2014. PW1 has not been cross-examined. When the sample and FSL form were handed over to PW1, entry Ex. PW5/C was made in register no. 19 which records that both seals were present on the sample Mark S1. The acknowledgement Ex. PW1/A given by FSL Rohini shows that the sample and the FSL form were received in proper condition. Carbon copy of the road certificate is Ex. PW5/D. These facts rule out any possibility of tampering of the sample. Accused has not been able to show any prejudice caused to him by drawing of single sample. In the matter of Khet Singh Vs. Union of India (2002) 4 SCC 380, Hon'ble Supreme Court has held that procedural irregularities will not defeat the case of prosecution, if no prejudice has been caused to the accused. The case property was also produced in the Court in intact condition. The FSL result is Ex. PW11/A is not disputed. It confirms that the substance recovered from the accused contained Diacetylmorphine with purity of 77.6%. 9.7.8 Absence of public witness in itself is no reason to disbelieve the police officers. In support of his arguments S.C. No. 6604/2016 State vs. Paul Anthony 49/55 regarding absence of public witnesses, Ld. Counsel for accused relied upon judgment by Hon'ble Punjab and Haryana High Court in the matter of Hawa Singh (Supra). Each case has to be examined on the basis of its own facts. There are catena of other judgments also where it has been observed by Hon'ble Supreme Court and Hon'ble High Court that absence of public witness in itself is no ground for disbelieving the police witnesses. SI Deepak Kumar made efforts to join public witnesses and he noted their names and addresses. At the spot there was no sufficient time to call public witnesses. 9.1.9 Reliance has been placed by Ld. Counsel for the accused on the judgment by Hon'ble Supreme Court in the matter of Bal Mukund (Supra) in support of his argument that the accused is entitled for acquittal for the irregularity committed in drawing the sample. This point has already been considered in light of the judgment by Hon'ble Supreme Court in the matter of Khet Singh vs. Union of India (Supra). It is also to be noted that in Bal Mukund's case the irregularity in drawing the sample was only one of the grounds and not the main reason for acquittal.
S.C. No. 6604/2016 State vs. Paul Anthony 50/55 9.1.10 The judgments in Ram Prakash vs. State, Mohd. Masoom vs. State of NCT of Delhi, which are relied upon by the Ld. Counsel for accused, are on different facts and they do not help the accused. Reliance has been placed by Ld. Counsel for accused on the judgment by Hon'ble Supreme court in the matter of Gurbax Singh vs. State of Haryana (Supra) on the point of compliance of Section 52 and 57 NDPS Act. In the said case, it was held by Hon'ble Supreme Court that these provisions are directory but the IO cannot totally ignore them as such failure will have bearing on the evidence regarding arrest of the accused or seizure of articles. In the present case, it has already been seen that compliance of Section 52 and 57 NDPS Act had been made. Ld. Counsel for the accused relied upon the judgment by Hon'ble Supreme Court in the matter of Sonu @ Amar vs. State in view of objection by Ld. Addl. PP for State regarding absence of the certificate u/s. 65B of Indian Evidence Act in respect of the Cell ID Charts produced in the defence evidence. The issue of absence of the certificate will have to be considered if on facts, something turns on the CDRs relied upon by the accused.
S.C. No. 6604/2016 State vs. Paul Anthony 51/55 10.1.1 Prosecution has proved all ingredients of the offence for which the accused was charged. All statutory compliances are also proved. Ld. Addl. PP has adequately replied the submissions made by Ld. Counsel for the accused to raise doubt about the evidence led by the prosecution. I shall now examine the defence led by the accused to see whether he has been able to create any doubt on the case of the prosecution, which is otherwise proved.
10.1.2 I have analyzed the CDR and location chart of the two mobile numbers which the accused claims to be used by him. From mobile number 8447858130, last call was made at 23:28:25 hours on 11.12.14 to mobile number 9920345079. The call lasted for 113 minutes. The call started at Mahipal Pur and terminated at Shankar Vihar. On 12.12.2014, an SMS was sent from this number at 10:00:54 hours. At 10:31:27, call was made to mobile number 09643907261 and the location was at Mahipal Pur. Assuming that this number was used by the accused, the location of the number in the night of 11.12.2014 and in the morning of 12.12.2014 belies the claim of the accused that he was picked up from his house on 11.12.2014 S.C. No. 6604/2016 State vs. Paul Anthony 52/55 at about 9:30-10:00 pm. Similarly, the last call on 11.12.2014, was received on mobile no. 8860250283 from mobile number 9810543360. The call lasted for 7 minutes and the location was at Shankar Vihar. In the morning of 12.12.2014, an out call was made at 4:34 hours and at that time, the location was at Mahipal Pur. Again assuming that the accused was using this mobile number, his claim that he was picked up from his house on 11.12.2014 at about 9:30-10:00 pm is belied. 10.1.3 Accused could have mentioned the names of the persons to whom he used to talk on the two mobile numbers and in this way he would have shown that he was using the two mobile numbers. The accused did not disclose the name of any such person. The location of the two mobile phone numbers could be in the area of NFC during a particular duration on 12.12.2014 but that does not lead to the conclusion that the accused himself was in the area of NFC during that time in the illegal custody of the police as alleged by him. Police arrested him on 13.12.2014. If he was using these two mobile numbers, he could be in the area of NFC on 12.12.2014 during a particular period before his arrest on 13.12.14. This does not S.C. No. 6604/2016 State vs. Paul Anthony 53/55 create any doubt regarding the case of the prosecution. 10.1.4 The accused did not make any allegation of illegal detention or extortion when he was produced before the Duty M.M. In his examination-in-chief, DW1 Mr. Sona Kumar stated that he received message on his phone from the accused whereby he conveyed three mobile number of his friends to him to talk to them and to bring money. He further stated that he brought money from a person at Lakshmi Nagar and that two persons at Uttam Nagar. Mr. Sona Kumar did not appear for his cross-examination. In his statement as a witness, the accused stated that he gave three mobile numbers of his friends to Mr. Sona Kumar. He further stated that one friend was residing at Lakshmi Nagar and the two other friends were residing in the area of Dwarka. The names and addresses of the friends were not disclosed. Accused claims that he talked to his three friends from one of his mobile phone but he has not pointed out the relevant entries from the CDR. Sister of the accused never made any complaint against the police officers and she has not been examined. Ld. Counsel for the accused stated that she left the country. If something of the sort S.C. No. 6604/2016 State vs. Paul Anthony 54/55 happened to the accused in the presence of his sister, the sister would have definitely made complaint. The defence led by the accused, is not believable and it does not cast doubt on the evidence led by the prosecution.
11. In view of above discussion it is held that the prosecution has proved the charge beyond reasonable doubt. The accused is convicted for the offence under Section 21 (c) read with Section 8 (c) NDPS Act.
Announced in Open Court on 15.01.2018.
(Rajesh Kumar Singh) Spl. Judge-NDPS/ASJ (South) Saket Courts, New Delhi S.C. No. 6604/2016 State vs. Paul Anthony 55/55