Delhi District Court
State vs . Rajesh @ Bunty on 26 September, 2022
IN THE COURT OF SH. AJAY NARWAL, MM-01, NEW DELHI,
PATIALA HOUSE COURTS/NEW DELHI.
State Vs. Rajesh @ Bunty
FIR No. 211/2021
PS: Connaught Place
U/S: 27 NDPS Act
ID number of the case : 10823/2021
Date of commission of offence : 19.11.2019
Date of institution of the case : 23.12.2021
Name of the complainant : ASI Peera Ram
Name of accused and address : Rajesh Sharma @ Bunty s/o Sh. Jugal Kishor
Sharma, r/o Vagabond Footpath, Hanuman
Mandir, Connaught Place, New Delhi.
Offence complained of or proved : U/s 27 NDPS Act
Plea of the accused : Pleaded not guilty
Final order : Convicted u/s 27 NDPS Act
Date of judgment : 26.09.2022
JUDGMENT
1. The allegation against the accused is that on 19.11.2019 at 12.25 PM at the Park, Above Palika Bazar, Connaught Place, New Delhi, within the jurisdiction of PS Connaught Place, New Delhi, he was found consuming smack in contravention of provisions of NDPS Act, 1985. Accordingly, he stands charged for offence u/s 27 NDPS Act.
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2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C, was prepared against the above named accused and challan was presented in the Court.
3. Copies of challan and relevant documents were supplied to the accused persons free of costs as envisaged under Section 207 of Cr.P.C.
4. A prima facie case under Section 27 NDPS Act, was found to be made out against the accused person. Charge was framed upon the accused person, accordingly, on 01.08.2022. The accused person pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined two witnesses and produced the following documents in its documentary evidence :
Sl PW No. Name Document proved Ex. No.
No.
1. PW1 HC Sushil Kumar Personal search, notice, Ex. PW1/A to
reply, seizure memo, PW1/G.
site plan, arrest memo
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2. PW2 ASI Peera Ram Rukka and FSL form Ex. PW2/A
6. Vide separate statement recorded, the accused person admitted the following documents under Section 294 Cr.PC. It is pertinent to mention that accused persons admitted the existence of FIR and not the truth of the contents thereof:-
Sl. Documents Proved Ex. No. No. 1. FIR No. 211/2021, PS CP Ex. P-1 2. Certificate u/s 65-B of IEA Ex. P-2 3. Register No. 19 Ex. P-3 4. DD No. 38 A dated 19.11.2021 Ex. P-4 5. Deposition of case property Ex. P-5 6. Information conveyedto ACP u/s 57 of Ex. P-6. NDPS 7. Pullanda to FSL Ex. P-7
In view of the admission of above documents under Section 294 Cr.PC, the evidence of following witnesses i.e. Ct. Dhara, DO/SI Usha Rani, HC Ram Pal, Inspector Upender Singh, Reader to ACP and MHC(M) were dispensed with.
7. PW1/HC Sushil Kumar has stated that on 19.11.2021 when he was on patrolling State Vs. Rajesh @ Bunty FIR No. 211/2021 Page No. 3 of 9 duty, he saw one person consuming smack with help of polythene, pipe and match stick and the said person started running away on seeing him. The witness further stated that he followed the accused and apprehended him. It was further stated by the witness that accused was searched but no more smack was found from his possession and thereafter an FIR was registered and accused was arrested. PW-1 was duly cross examined by the Ld. LAC for the accused.
8. IO has been examined as PW2, who has deposed on similar lines as that of PW1 and PW-1 was duly cross examined by the Ld. LAC for the accused. During the course of his statement u/s 313 Cr.PC, the accused has denied the allegations against him and has stated that he has been falsely implicated in the present case. Accused did not lead DE.
9. Ld. LAC for the accused has argued that no public witness has been examined by the prosecution and hence the accused cannot be convicted for the offence alleged against him. He has further argued that no contraband (Smack) has been recovered from the possession of the accused and hence accused is required to be acquitted.
10. Ld. APP for the State has stated that prosecution witnesses have supported the version of the prosecution and their credit had remained unimpeached during the course State Vs. Rajesh @ Bunty FIR No. 211/2021 Page No. 4 of 9 of their cross-examination. He has further argued that the information u/s 57 NDPS Act was promptly given to the higher officials and hence the prosecution version cannot be doubted upon.
11. Lastly, he has submitted that the FSL report also supports the version of the prosecution as the silver coloured punny, recovered from the possession of the accused, was found to contain Diacetylmorphine i.e. Heroin and hence prosecution has been able to discharge its burden.
12. Perusal of record shows that no material discrepancy in the testimony of the prosecution witnesses has come forth. Further, the FSL report has also states that the silver coloured punny, recovered from the possession of the accused, contained Diacetylmorphine i.e. Heroin.
13. Ld. LAC for the accused has sought acquittal on the ground that the testimony of the police witnesses cannot be relied upon for convicting the accused. However, the said contention is without any basis in light of the judgment of Hon'ble Supreme Court in Criminal Appeal No. 167 of 2006 titled Baldev Singh vs. State of Haryana -
"10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence State Vs. Rajesh @ Bunty FIR No. 211/2021 Page No. 5 of 9 however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be 6 Page 7 carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. 11. Observing that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad (dead) by LRs. vs. State of M.P., AIR 2007 SCW 5589 = (2007) 7 SCC 625, it was held as under:- "[24] In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence. [25] It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a-century, in the leading case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated: "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". (emphasis supplied) 7 Page 8 [26] In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
However, there are number of judgments in which it has been held that the testimony of police witness is equal footing with the testimony of any other public witness, if testimony is clear, coherent and reliable. To substantiate my view, I would like to refer to the following judgment of the Supreme Court of India. In State Government of NCT State Vs. Rajesh @ Bunty FIR No. 211/2021 Page No. 6 of 9 of Delhi Vs. Sunil and another (2001) 1 SCC 652, it has been observed: "In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helterskelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But, recovery of an object pursuant to the FIR No. 255/05 State Vs Prem Pal 12/17 information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. Vs. S. Sardar Ali & Ors. (1983 SC 1225). Following observations of Chinnappa Reddy J. can be used to support the said legal proposition: Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-section (4) and (5) of section 100 of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of vehicle itself. Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any articles it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But, if no witness State Vs. Rajesh @ Bunty FIR No. 211/2021 Page No. 7 of 9 was present or if no person had agreed to affix his signature on the document, if is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. We fell that it is in archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a FIR No. 255/05 State Vs Prem Pal 13/17 notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But, it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions." It is abundantly clear from the abovesaid judgment that there is no rule of law which enjoins upon the Court not to rely upon the testimony of the police officials in the absence of any independent/public witness. The only concern is to be more cautious and circumspect before placing any reliance on their testimonies."
14. Hence, as seen above, there is no requirement under law that the testimony of police witnesses cannot be acted upon in absence of any independent witness. In the present case, the testimony of police witnesses is found to be cogent and reliable and is further corroborated by the FSL report. In view of the same, the prosecution has been State Vs. Rajesh @ Bunty FIR No. 211/2021 Page No. 8 of 9 able to prove consumption of the contraband by the accused Rajesh @ Bunty beyond reasonable doubt.
15. In the light of aforesaid discussion, accused Rajesh @ Bunty is convicted of offence of consumption of Diacetylmorphine which is punishable u/s 27(a) of NDPS Act.
Convict Rajesh @ Bunty be heard on point of sentence.
Dictated directly into the computer (Ajay Narwal)
and announced in the open Court, MM-01 (New Delhi)/
On 26th September, 2022. Patiala House Courts,
N. Delhi/26.09.2022
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