Delhi District Court
Fir No. 199/09 State vs Mohd Masoom & Ors. Page No.1 on 30 June, 2011
1
IN THE COURT OF MS. RAVINDER KAUR
ADDL. SESSIONS JUDGE/ SPECIAL JUDGE
(NDPS)DWARKA COURTS, NEW DELHI.
SC No.: 02/2/10
FIR No.: 199/09
PS : Crime Branch
U/Sec. : 29 & 21 r/w Sec. 23 NDPS Act
State
Vs.
(1) Mohd. Masoom,
S/o Shri Mohd. Rasool,
R/o Tamooryan, Kandhar,
Afghanistan,
(2) Raju Dawar
S/o Shri Yash Pal Dawar,
R/o B6, IInd Floor, Old Double Storey,
Lajpat Nagar - IV,
New Delhi
Date of Institution : 24.04.2010
Date of Decision : 30.06.2011
FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.1
2
JUDGMENT
1 The prosecution case is that on 26.11.2009, at 9.30 am, Inspector Sunil Kumar received secret information in his office at ISC that Raju Dawar s/o Yash Pal Dawar r/o Delhi was in contact with drugs smugglers/peddlers of Afghanistan and would receive huge consignment of drug from one Afghani national, who would be coming at IGI Airport at 1.00 pm by the flight of Ariana Airlines. Inspector Sunil Kumar discussed the secret information with the senior officers and also produced the secret informer before ACP, who after satisfaction ordered for necessary action. Thereafter, inspector Sunil Kumar alongwith SI Sharat Chandra, SI Naresh Solanki, ASI Brahm Prakash, ASI Balbir, HC Om Prakash, HC Dhanvir, Ct. Subhash and Ct. Joginder, Informer, IO Kit and Electronic weighing machine left for H. No. B6, Old Double Storey, Lajpat Nagar- IV, in government vehicle No. DL6CJ0517 and private car and reached near H. No B6, Old Double Storey Lajpat NagarIV at around 11.30 am. Inspector Sunil Kumar and SI FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.2 3 Sharat Chandra asked 45 public persons to join the raiding party by disclosing about the secret information but none of them joined party on one pretext or another and left without giving their names and addresses. During this one person came in the Gali near H. No. B6 and sat in the white colour Matiz car bearing Number DL2C Q7070 which was identified by the informer as Raju. Inspector Sunil Kumar along with staff started following the above mentioned Matiz car and reached road in front of IGIA TerminalII Arrival Exit Gate No. 2 where Raju parked his car opposite side of the road near the ongoing Metro Project construction. Inspector Sunil Kumar parked his vehicle about 5060 meters from Raju's car and alongwith SI Sharat Chandra asked 45 public persons to join the raiding party by disclosing about the secret information but none of them joined police party on one pretext or another and left without giving their names and addresses. Inspector Sunil Kumar constituted a raiding party of the police personals and strategically deployed them and enquired about the Ariana Afghan Airlines. From the Arrival display board it was found FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.3 4 that flight No. FG311 is from Afghanistan to Delhi and is running delayed from the scheduled time. Inspector Sunil Kumar and staff started waiting for the Arrival of the above mentioned flight. During this ACP/ISC Shri Rajinder Bhakshi also arrived at the spot. At around 6.30pm Inspector Sunil Kumar and SI Sharat Chandra asked 810 public persons to join the raiding party by disclosing about the secret information but none of them joined police party on one pretext or another and left without giving their names and addresses. At around 7.30 pm, Inspector Sunil Kumar came to know that Ariana Afghan Airlines flight had arrived at the Airport and the Raju who was under the constant vigil of Inspector Sunil Kumar also approached Arrival Gate No. 2. At around 7.40 pm, Raju alongwith a Afghani looking person was seen approaching his car carrying a large briefcase of silver colour. Afghani person was carrying a Afghani cap in his right hand. When Raju and the above mentioned Afghani were about to sit in the car of Raju they were stopped by Inspector Sunil Kumar and the staff by introducing themselves. At the same time, FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.4 5 ACP/ISC also reached there. On interrogation the person carrying the briefcase disclosed his name and address as Raju Dawar s/o Shri Yash Pal Dawar R/o B6, IInd Floor, Old Double Storey, Lajpat Nagar - IV, New Delhi. The person carrying the cap disclosed his name and address as Mohammad Masoom s/o Mohammad Rasool r/o Tamooriyan, Afghanistan. Inspector Sunil Kumar introduced himself and the police party to both the persons mentioned above and told them about the secret information regarding the probability of recovery of contraband substance from them for which their search is to be conducted and also told them of their legal right that they can be produced before a Gazetted officer or a Magistrate for the search and can take the search of the police party and the police vehicle. Inspector Sunil Kumar served them written notice u/s 50 NDPS Act which was read over and explained to them. Both refused their search before a Gazetted Officer or a Magistrate and also refused to take the search of police party and the police vehicles. Mohammad Masoom told that though he understand Hindi but cannot write. The contents of the notice u/s 50 FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.5 6 NDPS Act were read over and explained to him. SI Sharat Chandra recorded the refusal of Mohammad Masoom as told by him in his own hand writing in Hindi. Raju recorded his refusal in his own handwriting on the notice U/s. 50 NDPS Act and signed the same in English. Mohammad Masoom signed the notice in his language. Inspector Sunil Kumar checked the briefcase held by Raju in the presence of ACP/ISC Shri Rajinder Bakshi. On checking three pairs of clothes were found in the brief case but the weight of the briefcase was found unusual. Inspector Sunil Kumar cut opened the lower portion of the brief case and it was found containing brown colour powder in blue yellow colour polythene. From its colour and smell, powder appeared to be smack/heroin, which was found to be 7Kg 100 grams in weight alongwith the polythene.
2 Out of the recovered substance two samples of 50 grams each were drawn and were sealed in a cloth pullanda with the seal of SK III S and were given Sl. No. S1 and S2. The pullanda containing remaining substance was given the sl. No. R. The suitcase was sealed in the cloth pullanda with the seal FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.6 7 referred above. Form FSL was filled by Insp. Sunil Kumar. The case property was seized.
3 Thereafter, the search of Mohd. Masoom was conducted and from the left side pocket of his black colour jacket, brown colour powder contained in a polythene was recovered which from its colour and smell appeared to be smack / heroin. The said substance was weighed alongwith the polythene and was found to be 510 grams.
4 Out of the recovered substance from the possession of accused Mohd. Masoom, two samples of 50 grams each were drawn and were sealed in a cloth pullanda with the seal of SK III S and were given Sl. No. S3 and S4. The pullanda containing remaining substance was given the Sl. No. R1. Form FSL was completed by Insp. Sunil Kumar. The case property was seized. The black colour jacket of accused Mohd. Masoom was sealed and seized.
5 The rukka was prepared by the Insp. Sunil.
Rukka alongwith six cloth pullanda, Form FSL, carbon copies of seizure memos were handed over to SI Naresh Solanki and HC FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.7 8 Om Prakash with directions to SI Naresh Solanki and they were sent to PS Crime Branch for registration of the case. 6 During investigation, the site plan was prepared by the IO, SI Naresh Sangwan. The Matiz Car was seized. Both the accused were arrested and their separate disclosure statement was recorded. Statements of the witnesses were recorded. Exhibits were sent to FSL Rohini for expert opinion. Record of Flight No. FG.311 dated 26.11.2009 was also obtained. Besides, other formalities were also completed.
7 FSL report of the samples S1 and S3 was received and as per the same the samples were found to contain Caffeine, Acetylcodeine, Monoacetylmorphine and Diacetylmorphine. However, the percentage of Diacetylmorphine were found to be 40.4% and 44.4% in exhibits S l and S 3 respectively.
8 During investigation it was revealed that the Matiz Car was having number plate of DL 2CQ7070 and that the said car belonged to one Praveen Kumar son of Shri Jagdish FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.8 9 Mitter r/o A102, Daya Nand Colony, Lajpat Nagar, N Delhi and the accused Raju Dawar had borrowed the said car on 25.11.2009. During investigation it revealed through the statement of Praveen Kumar that when he handed over the car to accused Raju Dawar, it was bearing the number plate of DL 3C Q7070 which is original number of the car. 9 After completion of the investigation, charge sheet was filed in the court against both the accused under section 21/29 NDPS Act and under Section 482 IPC against the accused Raju Dawar.
10 On the basis of material available on record, Charge under section 29 & 21 r/w section 23 NDPS Act was framed against both the accused, to which they plead not guilty and claimed trial.
11 The prosecution in support of its case examined 14 witnesses.
12 PW1 Ct. Shiv Prasad was posted as Reader to ACP, ISC, Crime Branch, Chanakyapuri, New Delhi on the intervening night of 26/27.112009. As per his deposition, ASI FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.9 10 Naresh Sangwan, the IO of the case came to the office of ACP, Crime Branch at 8.30 p.m and handed over the intimation under section 42 of the NDPS Act which was placed by the IO before the ACP Sh. Rajender Bakshi who has initialed the said document and the same was returned to the IO.
He testified that there were two copies of the said documents, out of which, one was retained in the office and the other was returned to the IO regarding the entry made in the diary of correspondence in the office of crime branch at S.No. 896.
He was shown the copy of the intimation under section 42 of the NDPS Act and he identified the signatures of ACP at pt. A and proved the same as Ex.PW1/A. As per his further testimony, on the same night, the report under section 57 of the NDPS Act was received by him regarding which he made an entry at S.No. 897 in the diary of correspondence. The original diary of correspondence was produced in the Court contained the relevant entries and he proved the photocopy of the same collectively as Ex.PW1/B. FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.10 11 He further testified that on receipt of DD No 8 already Ex PW 9/A he had made entry at serial No. 895 in Daily Diary Register and proved the photocopy of the same from the original register as Ex PW 1/C. He further stated that DD No. 8 Ex PW 9/A at point A to A he had mentioned the serial number of the register.
He further testified that on the information received U/ 57 NDPS Act Ex PW 9/B at point A to A he had mentioned the serial number and particulars of DD register. 13 PW2 H.Ct. Ram Chand was working as MHC(M) as well as duty officer on the intervening night of 26/27.11.2009. He testified that at about 1 a.m, SI Naresh Solanki had produced the rukka before him on the basis of which he recorded the FIR No. 199/09. He produced the original register in the Court and proved the computerized copy of the same as Ex.PW2/A bearing his signature at pt. A. He further stated that he handed over the copy of FIR along with the original rukka to SI Naresh Solanki who left for the spot at 2 a.m in an official vehicle with driver. He further testified that FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.11 12 he was called at 1.20 a.m by the respective SHO Inspector Akshay Kumar in his office and handed over to him 8 pulandas duly sealed however, he again corrected himself and stated that there were 7 pulandas bearing S1, S2, S3, S4, R and R1 and one another sealed pulanda which was not bearing any mark and and one suitcase in sealed condition, FSL form and three carbon copies of three different seizure memos. He further testified that all these pulandas were sealed with the seal of SKIII and AK and all these articles were deposited by him in the malkhana. He produced the original register No.19 in the Court and proved the photocopy of the relevant entry as Ex.PW2/B. He further testified that on 27.11.2009, SI Naresh Sang wan had deposited in his custody one sealed pulanda sealed with the seal of NS, the jamatalashi articles of the accused and one Matiz car bearing registration No. DL 2 C Q 7070 regarding which he made relevant entry at pt. X to X on Ex.PW2/B and the said vehicle was later on released on Superdari vide order of the Court regarding which he made an entry at pt. X1 to X1 on Ex.PW2/B. FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.12 13 He further testified that on 08.12.09, while he was posted as MHC(M) with Crime Branch, P.S Nehru Place, on that day, 2 sealed pulandas with the seal of SK III and AK alongwith FSL form were sent to FSL Rohini through H.Ct. Daanveer vide RC No. 403/21 regarding which he made an entry in register No. 19 at point X2 to X2 on Ex.PW2/B. He produced the original register No.21 in the Court and proved the photocopy of the relevant entry as Ex.PW2/C. He also produced the acknowledgment receipt of the FSL Form in FSL, Rohini, in register No.21 and proved the photocopy of the same as Ex.PW2/D. He further testified that on 18.02.2010, 2 sealed pulandas sealed with the seal of MS FSL Delhi along with the result were deposed in his custody by H.Ct. Sunil Dutt regarding which he made an entry at point X3 to X3 on Ex.PW2/B. The sealed pulandas were deposited in the malkhana and the result was handed over to the IO. He testified that his statement was recorded by the IO on 27.11.2009 and 08.12.2009 and the case property remained FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.13 14 intact till it remained in his possession.
14 PW3 Ct. Anil Kumar has produced the log book of the official vehicle No. DL 6 CJ 0517 i.e. Tata Qualis dt. 26.11.09 and proved the photocopy of the same as Ex.PW3/A. He testified that as per the said record, the above referred Tata Qualis was with Inspector Sunil Kumar who had gone from ISC to Lajpat Nagar and from Lajpat Nagar to airport, then to Nehru Place, from Nehru Place to Airport, from Airport to Bhogal, from Bhogal to Nehru Place and from Nehru Place to ISC and from there to Patiala House Court.
15 PW4 Sh. Suresh Kumar, UDC from Sheikh Sarai transport authority, New Delhi, produced the summoned record pertaining to the ownership of the vehicle i.e. Matiz bearing registration No. DL 3 CQ 7070 and testified that as per the same, the vehicle is owned by Sh. Praveen Kumar R/o A102, Dayanand Colony, New Delhi. He proved the computerised copy of the said record bearing the signature of Sh. Raj Kumar, Inspector, at pt. A and identified the signature of the author at pt. A on Ex.PW4/A as he had seen him writing FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.14 15 and signing during the course of his duty.
16 PW 5 is Inspt Sunil Kumar. He testified that on 26.11.2009 he was posted as Inspector at Interstate Cell Crime Branch Chanakyapuri New Delhi and on that day at about 09:30am, a secret informer came to his office and informed him that one person namely Raju Dawar s/o Yash Pal Dawar r/o B6, Old Double Storey Building, Lajpat Nagar IV, was engaged in drug trading alongwith Afghan Nationals and on 26.11.2009 Raju Dawar would receive a huge consignment of Heroin/ smack at IGI Airport Terminal II from Afghan Nationals who might arrive in India via Afghan National flight at about 12:30pm or thereafter on that day. The said information was brought into the notice of the ACP and secret informer was also produced before him. ACP had verified the contents of the secret information from the informer and ordered to proceed as per procedure. He further stated that he lodged DD No 8 in the daily diary register of Interstate Cell Crime Branch and copy of that DD was also sent to the ACP in compliance of provisions of Section 42 of FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.15 16 the NDPS Act. He proved the photocopy of the DD No 8 as Mark PW 5/A bearing his photo signature at point A. He further stated that he had constituted a team consisting of himself, SI Sharat Chandra, SI Naresh Solanki, ASI Balbir, ASI Brahm Parkash, HC Om Parkash, HC Danvir, Ct Subhash and Ct Joginder and then they left the office alongwith secret informer in government vehicle No. DL 6CJ 0517 and in one private car. He had also taken alongwith him IO kit and electronic weighing machine. A DD No. 10 was lodged regarding their departure by him. He proved true copy of DD No.10 as Mark PW 5/B. They had left their office and via Moti Bagh, Safdarjung Chowk Defence Colony and reached at Lajpat Nagar Part IV near House No. B6, Double Storey, Lajpat Nagar at about 11:30am. He stated that he had instructed SI Sharat Chandra to ask public persons to join in the raiding party after narrating the whole information. SI Sharat Chandra had shared the information with some public persons and had requested them to join the raiding party but none agreed to join the raiding party and had FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.16 17 gone away without disclosing their names and addresses.
He stated that at about 11:30am /11:40am, one boy was spotted while sitting in a Matiz car of white colour bearing No. DL 2CQ 7070 and that boy was pointed out by the secret informer that he was Raju Dawar. Raju Dawar had come down stairs from his house ie B 6 Lajpat Nagar, in the above referred manner and sat in Matiz car which was parked in the gali. After pointing out Raju Dawar the secret informer had left the spot. During the course of his testimony,accused Raju Dawar, was correctly identified by the witness. He stated that when Raju Dawar moved his car, they had followed him and at about 12:30pm he had reached Terminal II, IGI Airport, near the place where Metro construction had been going on near Arrival Gate No.2. They had asked some public persons to join the raiding party but they refused since they were busy in their own work. Raju Dawar had parked his vehicle ahead of the place where metro construction had been going on and they parked their vehicles behind his vehicle at a distance of about 50/60 meters.
FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.17 18
He further stated that thereafter, he alongwith SI Sharat Chandra tried to verify as to which Afghan national flight was to arrive at the IGI Airport and at what time. The remaining members of the raiding party, who were all in civil dress, were scattered in the area outside the Arrival hall. From Arrival Display Board they came to know that the flight No. FG 311 Ariana Afghan Airlines, which was to arrive from Afghan, was delayed. They waited for the flight and kept an eye on accused Raju Dawar who remained near his car.
He stated that at about 6:30pm, Sh Rajender Bakshi ACP had also reached the airport. They again
requested some public persons to join the raiding party but no one was willing to join and left without giving their names and addresses.
He deposed that at about 7:30pm, they came to know that flight No. FG 311 had arrived at the airport. Accused Raju Dawar went towards Arrival Gate No. 2 in his car and they had also followed him. He corrected himself and stated that Raju Dawar got down from his car and went towards FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.18 19 Arrival Gate No. 2 and they followed him. Raju Dawar had entered the Arrival Gate No 2 whereas they stood outside and at about 7:40pm Raju Dawar holding one sliver colour suitcase in his right hand alongwith one Afghan National who was holding Afghani cap in his hand, had come out and when they both were about to sit in the Matiz car, he alongwith SI Sharat Chandra had reached the car of Raju Dawar and had stopped them from sitting in the car and had given his introduction to them. By that time ACP Sh Rajender Bakshi had also arrived there. On his enquiry accused Raju Dawar disclosed his name and address. Then he spoke to Afghan national and he disclosed his name as Mohd. Masoom s/o Mohd. Rasool r/o Tamurian Afghanistan. Witness correctly identified accused Mohd. Masoom during the course of his testimony.
He stated that in the meantime SI Naresh Solanki had also reached near them. Witness further stated that he disclosed to both the accused persons that they had a secret information that Raju Dawar and Mohd. Masoom were FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.19 20 possessing drugs. That both the accused were also informed that it was their legal right to conduct the search of their person as well as their vehicle and if they wanted they could be produced before a Magistrate or a Gazetted Officer for their search. But they had reused to take the personal search of the police officials or the vehicles. He stated that a notice U/s 50 NDPS Act had been served upon both the accused persons separately at the spot in furtherance of DD No 10 and the carbon copy of both the notices U/s 50 NDPS Act was also prepared. That the original notice had been served upon both the accused persons individually and the carbon copy had been retained. PW Inspector Sunil Kumar further deposed that he had conversed with accused Mohd. Masoom in Hindi language since he was understanding only Hindi. The notice U/s 50 NDPS Act was served upon him in Hindi language since Mohd. Masoom could only speak and understand Hindi language. He requested SI Sharat Chandra to record the reply of accused Mohd. Masoom to the notice U/s 50 NDPS Act in Hindi language on his behalf. Accused Mohd. Masoom had FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.20 21 disclosed them that he had faith in them and did not want his search to be conducted in the presence of a Magistrate or a Gazetted Officer and that fact had been recorded in Hindi language by SI Sharat Chandra on the carbon copy of the notice, the original of which had been served upon accused Mohd Masoom. Accused Mohd Masoom had signed on the carbon copy of the notice on receiving the original and had also signed on his reply / refusal recorded in Hindi language by SI Sharat Chandra which was read over and explained to him. PW 5 proved the carbon copy of the notice U/s 50 NDPS Act having reply of accused in original as Ex.PW5/A bearing his signature at point A. The refusal of accused Mohd Masoom is from point X to X and his signatures are at point X1 and X2.
He further deposed that notice under section 50 NDPS Act was also served upon accused Raju Dawar vide DD No 10. Original notice was given to accused Raju Dawar and he had also refused to avail his legal right to be searched in presence of a Gazetted Officer or a Magistrate. He had also refused to conduct the search of the police party or our FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.21 22 vehicles. Accused Raju Dawar himself wrote his refusal on the carbon copy of the notice. Inspector Sunil Kumar proved the carbon copy of the said notice as Ex. PW 5/B, bearing the signature of Raju Dawar at point A and A1 and signatures of Inspector Sunil Kumar at A2 and A3 and the refusal of accused Raju Dawar from point Y to Y. PW 5 further deposed that after serving notice U/s 50 NDPS on both the accused, he in the presence of SI Sharat Chandra, SI Naresh Solanki and ACP Sh Rajender Bakshi checked suitcase of silver colour which was containing three pairs of clothes but the suit case was quite heavy and at this knife, was taken out from the IO Kit and inner bottom portion of the suitcase was cut open with the help of knife which was found containing one yellow and blue colour of polythene of big size. The said polythene was cut open with the help of knife and it gave a very strong smell and they suspected that it was containing smack. He deposed that the polythene was taken out from the suitcase and was weighed alongwith the polythene on the electronic weighing machine, which was found to be 7.100 FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.22 23 kg in weight. The contents of the polythene were in powdery form and of brown colour. He deposed that after weighing the contents, two samples of 50 grams each had been drawn therefrom and the remaining powder alongwith the polythene was converted in a cloth parcel and sealed with the seal of SK IIIS and the said pulanda was marked as "R". Both the samples drawn were kept separately in a polythene and then converted in two separate cloth pullandas and sealed with the seal of SKIIIS and were marked as "S1" and "S2". He proved the Seizure Memo as Ex. PW 5/C bearing his signature at point A, vide which the substance was seized. He deposed that the said seizure memo was also signed by ACP Rajender Bakshi at point A1, SI Sharat Chandra at point A2 and SI Naresh Solanki at point A3 as witnesses and accused Raju Dawar at point A4 on each page.
He further deposed that the suitcase alongwith the three pairs of clothes was sealed in a cloth pulanda and sealed with the seal of SKIIIS. He proved the seizure memo Ex. PW 5/D bearing his signature at point A, vide which the same FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.23 24 was seized. The seizure memo was also signed by ACP Rajender Bakshi at point A1, SI Sharat Chandra at point A2 and SI Naresh Solanki at point A3 as witnesses and by accused Raju Dawar at point A4.
He further deposed that formal search of accused Mohd Masoom was conducted. Mohd. Masoom was wearing a jacket of black colour and from the left side pocket of his jacket, a transparent polythene was found and on checking the same, it was found that it was also containing the same type of powdery substance. The said polythene alongwith the substance was weighed on the electronic weighing scale and was found to be 510grams. Two samples of 50 grams each were drawn from the said substance and had been kept in two separate polythenes and had been converted in two cloth pullandas and sealed with the seal of SKIIIS and had been given Mark S3 and S4. The remaining substance, in the same polythene in which it was recovered, had been converted into a cloth pullanda sealed with the seal of SKIIIS and had been given as Mark R1. The recovered substance from the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.24 25 possession of accused Mohd. Masoom had been seized. Vide seizure memo as Ex PW 5/E, bearing his signature at point A. The seizure memo was also signed by ACP Rajender Bakshi at point A1, SI Sharat Chandra at point A2 and SI Naresh Solanki at point A3 as witnesses and accused Mohd. Masoom at point A4 on each page.
He further stated that the jacket of accused Mohd. Masoom was also seized vide seizure memo Ex. PW 5/E and was sealed in a white cloth pullanda with the seal of SKIIIS. He further deposed that Form FSL was filled up at the spot and the impression of seal SKIIIS was put on the form. He stated that seal after use was handed over to SI Sharat Chandra.
He stated that he prepared rukka and proved it as Ex. PW 5/F. He sent the rukka alongwith all the sealed pullandas, form FSL and carbon copies of all seizure memos through SI Naresh Solanki and HC Om Parkash to PS Crime Branch with direction to produce rukka before the duty officer for registration of the case and remaining articles before SHO FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.25 26 PS Crime Branch.
He deposed that rukka was sent at 11:30pm, whereas at about 11:25pm, SI Naresh Sangwan had reached the spot as second IO as it was decided by the higher authority that further investigation would be carried out by SI Naresh Sangwan and he had mentioned this fact in the rukka Ex PW 5/F itself.
He further stated that the site was inspected by SI Naresh Sangwan at his instance and site plan Ex PW 5/G was prepared.
He deposed that at about 2.00am/ 2:30am, SI Naresh Solanki and HC Om Parkash had returned to the spot alongwith the copy of the FIR and original rukka and had handed over to the same to SI Naresh Sangwan. He ( ie PW 5) had handed over the accused persons, the original seizure memos and the carbon copies of both the notices U/s 50 NDPS Act to SI Naresh Sangwan. On the seizure memos which he had handed over to SI Naresh Sangwan, the top line was filled in by SI Naresh Sangwan in his own handwriting which FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.26 27 consisted the particulars of the case.
He further deposed that his supplementary statement was recorded by SI Naresh Sangwan and thereafter he was discharged. During the course of his examination in chief he identified the case property i e baggage tag bearing No. 0002645 affixed on the silver colour strolly suitcase as Ex P1, the suitcase collectively alongwith its broken lid and inner lining as Ex. P2, three pair of clothes found lying in the suitcase are collectively as Ex. P3, the blue and yellow colour polythene as Ex. P4 and the substance recovered therefrom as Ex. P5, the cloth pulanda bearing Mark S2 as Ex.P6 containing the representative sample i e Ex. P7, the cloth pulanda bearing Mark S1 as Ex. P8 containing the remnant sample as Ex. P9, cloth pulanda bearing Mark S3 as Ex. P10 and the remnant sample contained therein as Ex. P11, cloth pulanda bearing Mark S4 as Ex. P12 and the contents of the representative sample contained therein as Ex.P13. 17 PW 6 Inspector Naresh Solanki is also a witness to the alleged recovery of contraband from the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.27 28 possession of both the accused persons. He also deposed on the lines of the testimony of PW 5. Besides, he testified that he had taken rukka to the police station at about 11.30 pm. Besides, he had taken three carbon copies of seizure memos, 8 sealed pullandas, original FSL form and that these were handed over to SHO, Inspector Akshay Kumar. He also testified that HC Om Prakash also accompanied him to Police Station in Qualis bearing No.DL 6C J0517. That rukka was handed over to the Duty Officer and he alongwith HC Om Prakash returned in the same vehicle alongwith the copy of the FIR and original rukka to the spot and handed over the same to the SI Naresh Sangwan, who had already reached on the spot. He further deposed that the site was inspected by SI Naresh Sangwan at the pointing out of Inspector Sunil Kumar and site plan was prepared. That he alongwith Inspector Sunil, ASI Balbir, HC Om Prakash, HC Danvir had left the spot around 3.00 am. He further stated that the reply to both the notices under section 50 NDPS Act, Ex. PW 5/A & Ex. PW 5/B were bearing his signatures at point A3 and that the original notices FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.28 29 were bearing his signature at point A1. He testified that his statement was recorded in the evening on 27.11.2009.
During the course of his testimony, he correctly identified both the accused persons as well as the case property. 18 PW 7 is Sh Rajesh Kumar who testified that on 8.3.2010 he was posted as Traffic Supervisor with Ariana Afghan Airlines. That on the request of the IO he had handed over passenger manifest and list of flight No. FG311 dated 26.11.2002 from Kabul Kandhar to Delhi. That in the Kandhar passenger list, the name of passenger Mohd. Masoom appeared at serial No. 19. He proved the said list as Ex. PW 7/A bearing the signature of PW 7 at point A and seal of Airlines at point A1. He also testified that he also handed over the general declaration, passenger lists of KabulDelhi and Kandhar Delhi. He proved the said lists as Ex. PW 7/B and Ex. PW 7/C respectively, both bearing the signature of PW 7 at point A and seal of Airlines at point A1.
19 PW 8, Inspector Akshay Kumar was the then SHO, PS Crime Branch, Nehru Place. He deposed about FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.29 30 receiving of 8 parcels mark R, R1, S1, S2, S3, S4, one sealed suitcase and one sealed jacket, three carbon copies of seizure memos and FSL form from SI Naresh at his office at about 1.00am on the intervening night of 26/27.11.2009. He stated that all the parcels and FSL Form were bearing the seal of SK III S and he countersealed them with his seal of 'AK'. He also mentioned the FIR No. 199/09 on all the parcels, FSL form and all the three carbon copies of seizure memos and that he asked for the FIR No. from the DO through intercom. He further testified about the deposit of all the sealed parcel in the custody of the MHC(M) and that the relevant entry, to this effect was made by MHC(M) in register No. 19. He stated that he had also signed the relevant entry, the photocopy of which is already Ex. PW 2/B. He stated that DD No. 15 was recorded to this effect at about 1.55 AM. On seeing the original DD entry being produced in the court, he proved the photocopy of the same as Ex. PW 8/A. He further stated that he had also handed over the carbon copies of seizure memos and FSL form to MHC(M) alongwith the sealed pulanda.
FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.30 31 20 PW 9 is ACP Rajender Bakshi. As per the prosecution, the secret information was brought to the knowledge of PW 9 by SI Sunil Kumar and the secret informer was also produced before him and the proceedings were conducted under his instructions and some of the proceedings were conducted at the spot in his presence also. PW 9 testified that on 26.11.2009 at about 9.30am while he was present in his office, Inspector Sunil Kumar had produced the secret informer before me, who had contacted Inspector Sunil Kumar and provided a information about one Raju Dawar, resident of Double Strory, Lajpat NagarIV, New Delhi and disclosed that Raju Dawar was in touch with some Afghan narcotics smugglers and on that day he would be going to IGI Airport to receive the consignment of narcotics being smuggled by Ariana Afghan Airlines. He verified the authenticity of the information and informed his DCP and instructed Inspector Sunil Kumar to proceed further on the information.
He further stated that Inspector Sunil Kumar lodged DD No.8 in daily dairy register and sent the same to him FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.31 32 in compliance of section 42 of NDPS Act. He identified his photo signatures at point B on the photocopy of the said DD already Mark as PW5/A, which was put up before him at about 10.10 a.m. He stated that Inspector Sunil Kumar along with a team of raiding party had proceeded to Lajpat Nagar and at about 1.30 p.m, Inspector Sunil Kumar had informed him through telephone that the said flight of Ariana Afghan Airlines was late from the scheduled Arrival time. That he had also reached at IGI airport at about 2.30 p.m where Inspector Sunil Kumar along with his team had already laid a trap. At around, 7.30 p.m, when the flight of Ariana Afghan Airlines landed and the passengers started coming out, the team of Inspector Sunil Kumar had identified Raju Dawar while coming towards his Matiz car No. 7070 of white colour along with an Afghani looking passenger i.e accused Md. Masoom. He correctly identified the accused Mohd. Masoom and Raju Dawar whose name were also revealed later on during their interrogation. He stated that accused Raju Dawar was carrying FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.32 33 an attachee case in his right hand and when accused persons had reached near the said Matiz car Inspector Sunil Kumar had informed both the accused persons that he and his team members were from Crime Branch, Delhi Police, and they had an information that both the accused persons were carrying Narcotics and under section 50 NDPS Act, they could opt for conducting their search in the presence of a Gazetted Officer/Magistrate, however they denied for their search before a Gazetted Officer or a Magistrate. He further testified that Inspector Sunil Kumar had given a notice under section 50 of the NDPS Act separately to both the accused persons on which accused Raju Dawar gave his reply in his own handwriting and denial of Masoom was recorded in writing by SI Sharat Chandra who was also a member of the raiding party. He stated that accused Md. Masoom had signed on the notice under section 50 of the NDPS Act. He stated that provisions of section 50 of NDPS Act were also explained to them.
He further testified that the attachee case which was being carried by accused Raju Dawar, was opened by FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.33 34 Inspector Sunil Kumar by asking the numerical code from accused Md. Masoom. Which found carrying 3 pairs of clothes but due to abnormal heavy weight of the attachee Inspector Sunil Kumar had opened the inner lining/layer of the attachee case with the help of a knife and had found a plastic packed polythene packed in the lower portion of the said attachee case and the said polythene smell of heroin/smack was coming.
On checking and through smelling, it was found containing smack/heroin. Inspector Sunil Kumar weighed this polythene bag with the help of an electronic weighing machine and its weight was found to be 7 kg 100 gms. He further deposed about drawal of two samples of 50grams each from the recovered substance, about the sealing of the samples and the remaining substance with the seal of SKIIIS, seizure of the recovered substance vide seizure memo Ex PW 5/C their being sealed and about the sealing of the attachee case seized vide seizure memo Ex. PW 5/D. PW 9 further testified that thereafter Inspector Sunil Kumar conducted search of accused Md. FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.34 35 Masoom and from the left side pocket of the jacket which he was wearing, a polythene packet containing white substance was recovered. On checking from smell and colour, it was also suspected to be smack/heroin. Inspector Sunil Kumar weighed the said substance with polythene on an electronic weighing scale and its weight was found to be 510 gms. He further deposed about drawal of two samples of 50 gms each from the said recovered substance, about sealing of the samples and the remaining substance and seizure of the recovered substance as Ex PW 5/E . He further testified that he left the spot for his office at 10:30pm.
He further testified that in the morning of 27.11.2009 when he was present in his office, at about 4.15 a.m, he received a report from ASI Brahm Prakash under section 42 NDPS Act sent by SI Naresh Sangwan on the basis of disclosure statement made by accused Md. Masoom wherein he had disclosed the involvement of his other associates which was separately investigated.
He also deposed that he had received a report FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.35 36 from SI Naresh Sangwan under section 57 NDPS Act regarding seizure and arrest of both the accused persons.
During the course of his testimony, he identified his signatures on DD No. 8, Ex. PW 9/A that the said DD was sent to him by inspector Sunil Kumar in compliance of section 42 NDPS Act and that entry No. 895 dated 26.11.2009 was made in his office regarding the receipt of DD. He produced the original information received under section 57 NDPS Act and deposed that same was received in his office vide diary No. 897 dated 27.11.2009 and testified the said intimation was sent by SI Naresh Sangwan and perused by him on the same day and was signed at point A. He proved the original report under section 57 NDPS Act as Ex. PW 9/B. During the course of testimony, he correctly identified the accused persons as well as the case property.
PW 9 was declared partly hostile by the prosecution and was cross examined by the Ld. Addl. PP for the State with regard to the colour of the recovered substance and the colour of the polythene in which it was found as in his FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.36 37 statement U/s 161 Cr. PC dated 27.11.2009 the colour of the recovered substance is mentioned as brown but the witness testified that it was white colour. During his cross examination by Ld. Addl. PP he admitted that his statement recorded by the IO ie Ex PW 9/PA to this effect is correct. He also admitted that his above statement to the effect that the colour of the polythene lying in the suitcase was of yellow and blue colour is correct and it was not only a blue colour polythene.
21 PW 10 Inspector Sharat Chandra was member of the raiding party and witnessed the entire recovery proceedings. He deposed on the lines of the testimony of PW 5 and PW 6.
22 PW 11 SI Brahm Prakash was also member of the raiding party. However, at the time of recovery of the contraband from the possession of the accused persons he was assigned duty to control the traffic. He testified with regard to the apprehension of the accused persons on the lines of the testimony of other official witnesses. He joined the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.37 38 investigation again after recovery of the contraband and is a witness to the arrest of the accused persons. He proved the arrest memo of accused Raju Dawar as Ex.PW 11/A, of accused Mohd.Masoom as Ex PW 11/B, the personal search memos of both the accused Ex PW 11/C and Ex PW 11/D respectively, the seizure memo of the Matiz car Ex PW11/E, the seizure memo of the Afghani cap of accused Mohd Masoom as Ex PW 11/F, the seizure memo of the passport and air ticket of accused Mohd Masoom as Ex. PW 11/G. He testified that the disclosure statement of accused Raju Dawar Ex. PW 11/H and of accused Mohd Masoom as Ex PW 11/J were recovered and the same are bearing his signature at point A. As per the testimony of this witness, the information prepared U/s 42 NDPS Act SI Naresh Sangwan alongwith its carbon copy and the Matiz Car was taken by him to their office where the information U/s 42 NDPS Act was handed over to the ACP and left the Maiz Car in the office. During the course of his testimony he correctly identified the accused persons.
23 PW 12 Praveen Kumar, is the owner of the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.38 39 vehicle bearing No. DL 3C Q 7070, a Matiz Car. As per the case of the prosecution, accused Raju Dawar had taken the car of PW12 in the evening hours of 25.11.2009, however, he did not support the case of the prosecution to this effect and testified in his chief examination that on 26.11.2009, he was present at his shop at Kalkaji. At about 3.45 pm, he received a telephone call from Kulwinder Dawar that he required his car since one of his customer was siting with him whose acquaintance who was arriving from Afghanistan, was to be picked up from the Airport. He further stated that Kulwinder Dawar was doing the business of clothes and he informed him that the customer, who was sitting with him had told him that his acquaintance, referred above, would also make some purchases. That about 3.40 pm, the accused Raju Dawar, the brother of Kulwinder Dawar came to his shop and at about 4.00 pm, he handed over the key of the his vehicle to the accused Raju Dawar. At about, 10.30pm, he received a call from Kulwinder Dawar, who was making queries about Raju Dawar but he told him that he did not visit him. He stated that next day, Kulwinder Dawar told FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.39 40 him that the accused Raju Dawar was arrested in this case.
PW 12 further testified that on 28.11.2009 he was called in the office of the Inter State Cell, Crime Branch, at Chanakyapuri, where he appeared with the original R.C. of the area. He was interroGated by the police and narrated whatever he testified in his chief examination. He further stated that police had not recorded his statement. When he had gone to the office of the Chanakyapuri, he was shown the Matiz Car from some distance and as such he could not see the number plate. Lateron, he obtained the vehicle on superdari vide superdginama Ex. PW 12/A. PW12 was declared hostile by the prosecution and crossexamined by the Addl. PP for the State. He denied that accused Raju Dawar had taken his car on 25.11.2009 in the evening hours. He admitted that when he handed over the car to the Raju Dawar, it was bearing the vehicle number DL 3CQ 7070. He could not admit or deny if the said vehicle was shown to him on 28.11.2009 in the office of ISC, Crime Branch and it was bearing the number plate of DL 2CQ 7070. Voluntarily, he FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.40 41 testified that he could not see number plate as vehicle was shown to him from its side portion. During the cross examination by the counsel for the accused, he stated that on 22.1.2010, when he received the Matiz Car from the office of the Special Cell it was bearing the number plate of DL 43C Q 7070. 24 PW 13 SI Naresh Sangwan is the IO of the case who testified that on 26.11.2009, he was entrusted investigation of this case by the orders of senior officers and reached the spot at around 11.25 am where he met Inspector Sunil Kumar and his team, who explained the facts of the case and handed over to him, the accused persons, two seizure memos relating to the recovery from the possession of accused, two separate seizure memos vide which the samples drawn from the recovered substance were seized. The witness corrected himself and stated that in all he had received 4 seizure memos out of which, two were relating to the recovery of the substance from the accused persons, one seizure memo was pertaining to the seizure of suit case and fourth memo was pertaining to the coat of the accused Mohd. Masoom. He also stated that two carbon FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.41 42 copies of notice under Section 50 NDPS Act served upon each, of the accused persons. As per his testimony, he prepared the site plan Ex. PW 5/G at the instance inspector Sunil Kumar. He recorded the statement of the inspector Sunil Kumar and had put the FIR number on all the documents handed over to him by Inspector Sunil Kumar after SI Naresh Solanki alongwith HC Om Prakash reached the spot alongwith the copy of the FIR and the original rukka at about 2.30 am. He also deposed about the arrest of accused persons and recovery of the notice under Section 50 NDPS Act from the personal search of the accused persons, Seizure of Afghani Cap, air ticket and pass port of the accused Mohd. Masoom, Matiz Car, recording of the disclosure statements of both the accused persons, preparing report of under Section 42 NDPS Act Ex. PW1/A and about the same being sent to the office of the Crime Branch through ASI Brahm Prakash. He further deposed about the release of Matiz Car to its owner and that at the time of its release both the numbers plates of Matiz Car were removed and deposited in the Malkhana vide entry in register No. 19 i.e. PW 2/B from FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.42 43 point A to A. He further stated that he prepared the intimation under section 57 of the NDPS Act, already Ex. PW9/B on 27.11.2009 and on the same day he gave intimation to the Afghan Embassy vide letter Ex. PW13/C with regard to arrest of accused Mohd. Masoom. He stated that he collected the passenger manifest and other documents from Ariana Afghan Airlines and proved the certified copy of the same as Ex. PW 7/A to Ex PW 7/C respectively. He also proved the certified copy of registration certificate of Matiz Car as Ex. PW 13/D. PW 13 further testified that he had sent the sample drawn from the recovered substance to FSL through HC Danvir and collected the FSL result lateron, which he tendered in evidence as Ex PW 13/E. During the course of his testimony, Ld APP sought the permission of the court to put a leading question to witness regarding the number of seizure memos handed over to him by inspector Sunil Kumar and he stated that he was handed over three seizure memo i.e. seizure memo of the smack recovered from accused Raju Dawar as Ex. PW 5/C, seizure memo of smack and Jacket of accused Mohd. Masoom as Ex. FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.43 44 PW 5/E and the seizure memo of the suit case of silver colour as Ex.PW5/D. He further testified in his chief examination that inadvertently he testified about four seizure memos. 25 PW 14 Dr. Madhulika Sharma, Asstt Director, FSL Rohini, had examined the samples S1 and S3 drawn from the substance recovered from the possession of accused Raju Dawar and during the course of her testimony, she proved the original FSL report which was received alongwith sample Mark S1 to S3 and the FSL report and proved the photocopy of the same as Ex. PX.
26 Statement of both the accused persons was recorded U/s 313 Cr PC, whereby they have denied the entire incriminating evidence appearing on record against them and have claimed to have been falsely implicated.
Accused Raju Dawar stated that on 26.11.09 he was present at his office at Lajpat Nagar Market, New Delhi alongwith his brother Kulwinder Dawar and his partner Rajesh Kumar Sabharwal since 11:00am. His brother Kulwinder Dawar is doing the business of "kurtis" and he FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.44 45 ( accused Raju Dawar) used to help him in his business. At about 2:00pm on the same day, one Afghani namely Mohd Majid came in the office of Lajpat Nagar and he selected few Kurtis for purchasing and told to his brother that some of his acquaintances are arriving from Afghanistan and he wants to go to Airport to receive them and he further told that those Afghanis shall also purchase "Kurtis" from his brother. At this, his brother Kulwinder Dawar at about 3:30pm made a call to Mr. Praveen who was known to his brother and requested him to arrange a vehicle to take Afghani customer namely Mohd Majid to the Airport to receive his acquaintances. That he went to the shop of Mr. Praveen at about 3:45pm and he gave him the keys of Matiz car bearing No. DL 3 CQ 7070 and then he took that Matiz car back at the office of his brother and from there he took customer of his brother namely Mohd Majid alongwith him to IGI Airport and reached there at about 6:00pm. That after parking his vehicle in the nearby parking, Mohd. Majid asked him to wait outside Exit Gate No. 2 of Arrival hall, whereas he himself entered into the Arrival FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.45 46 hall. That after sometime at about 7/7:30pm some Afghani persons came out from Gate No. 2 and enquired from him about prepaid taxi booth as he was having the knowledge of Afghani language. That he asked them to wait there and told them that taxi will come there and they can take the same. That all of a sudden, few persons in plain clothes came there and took him alongwith those Afghani persons in a car by putting a black strip on his eyes and took them to some office and there he came to know that they were police officials and there they made him to sign some written, semi written and blank papers forcibly and they also forced him to write some matter on their dictation which he was compelled to do and nothing incriminating/contraband was recovered from his possession and the alleged recovery was planted upon him.
So far accused Mohd Masoom is concerned, he stated that on his Arrival from Kabul, he was not carrying any checked in baggage. That his flight was not delayed. He stated that he was intercepted near the Exit Gate by some persons in plain clothes and thereafter he was taken to their office where FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.46 47 he came to know that they were police officials. It is stated that he was kept illegally in their office and his signatures were obtained on various blank papers, semiwritten papers and written papers under pressure and theft. He stated that he was not apprehended alongwith his coaccused Raju Dawar and that no contraband was recovered from his possession. Further that no proceedings U/s 50 NDPS Act were explained to him and claimed that the recovery was planted upon him. 27 Accused Mohd. Masoom did not lead any evidence in his defence, whereas accused Raju Dawar produced his brother Kulwinder Dawar in his defence.
28 DW 1 deposed that he is doing business of readymade garments and kurtis at B14, Second floor, Old Double Storey, Lajpat NagarIV, New Delhi. Accused Raju Dawar is his real younger brother. On 26.11.2009 he was present alongwith his partner Rajesh Kumar Sabharwal and his brother accused Raju Dawar at his office. At about 2:00pm one customer namely Mohd. Majid came to his shop and selected some Kurtis and that Mohd Majid was attended FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.47 48 by his brother accused Raju Dawar. That during conversation with accused, Mohd Majid told him that some of his acquaintances would be coming from Afghanistan in the evening on that day and that he can convince them to purchase Kurits from their shop. That Mohd Majid asked him to sent somebody alongwith him to receive the said Afghanis from IGI Airport. At this, he made a call to his friend Praveen i e PW 12 and requested him to give his vehicle for sometime, to that he agreed. Thereafter he sent his brother accused Raju Dawar to take the vehicle from the shop of Praveen. At about 04:30pm his brother came back alongwith the Matiz car of Praveen and at about 5:00pm he went to IGI Airport alongwith Mohd Majid in the Matiz car. He further testified that thereafter he did not get any information from his brother till around 10:30pm and then he called Mr Praveen ie PW 12 and enquired from him about his brother, if he had visited him to return his vehicle but he was informed that Raju Dawar had not done so.
DW 1 further testified that at about 2:00am FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.48 49 on 27.11.2009 he went to the room at 126/B Second Floor,
village Kilokari, New Delhi where his brother i e the accused Raju Dawar was residing but he found the room of his brother locked so he returned home. He further testified that at 09:30am he went to his shop and his partner Rajesh Kumar Sabharwal also reached there and then they went to Airport and made inquiry from the parking attendant about the vehicle No. DL 3CQ 7070 and asked him if the said vehicle was parked there. They had also shown the photograph of the accused to the parking attendant to find out any clue about him but failed. Thereafter they went outside the Arrival hall of IGI Airport and made enquiry about the accused Raju Dawar from the occupants of 21/3 shops by showing his photograph and them to the police traffic booth but could not find out the whereabouts of his brother and then they came back. It is stated that thereafter he discussed the matter with his parents in the evening to lodge missing report of his brother with the police. That at about 5/ 5:15pm he received a call on his mobile No. 9555981932 by the police and was informed that his FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.49 50 brother was arrested. Then he went to the office of Crime Branch Chankya Puri and met Mr Naresh Solanki i e PW 13 and was told that his brother was arrested in the case of drugs.
29 I have heard arguments addressed from Sh Yogesh Saxena, counsel for accused Mohd Masoom. So far accused Raju Dawar is concerned, Sh. Deepak Ghai has filed written submissions on his behalf.
30 Advocate Sh Yogesh Saxena has submitted that the prosecution has not produced any evidence to prove the charge of conspiracy between both the accused persons. It is submitted that mere presence of one person with another is not enough to say that they were in conspiracy with each other and that independence is required to prove the charge of conspiracy against both the accused persons, It is further submitted that the alleged recovery effected from accused Raju Dawar and from the possession of accused Mohd Masoom are two different recoveries and cannot be clubbed together. It is further submitted that the provisions of Sec. 50 NDPS Act FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.50 51 are mandatory but the same was not complied with in the present case. Further that two sets of evidence has been led by the prosecution i e in the form of documentary evidence i e notice U/s 50 NDPS Act and the oral testimony of official witnesses which are contradictory and thus the preference is to be given to the oral testimony of the official witnesses which belies the documentary evidence. It is further submitted that there is no evidence on record that accused persons were made aware of their right U/s 50 NDPS Act to get their search conducted in the presence of Magistrate or a Gazetted Officer. Further that there are contradictions in the testimony of the official witnesses regarding the presence of ACP at the time of service of notice U/s. 50 NDPS Act which creates doubt about the truthfulness of the prosecution case. Further that it is the case of the prosecution that ACP was not present at the time of service of notice U/s 50 NDPS Act upon the accused persons but ACP Rajender Bakshi examined as PW 9 stated in his chief examination that he was present at the time of service of such notice. It is submitted that this fact does not find mention FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.51 52 in his statement U/s 161 Cr PC and he was confronted with his said statement but the prosecution did not seek any explanation from PW 9 with regard to such discrepancy in his testimony. The defence counsel has further argued that this witness was declared hostile by the prosecution with regard to the colour of the seized substance i e smack, as he testified that the colour of the recovered substance was white. That even at that time during cross examination by Ld. Addl. PP for State, no question was put to him with regard to his presence at the spot at the time of service of notice upon the accused persons. That this is an improvement in the testimony of PW 9 from his statement U/s 161 Cr PC and cannot be brushed aside. It is further submitted that PW 5 Inspt. Sunil Kumar was already examined when ACP Rajender Bakshi was examined as PW 9 and PW 5 had denied the presence of PW 9 at the time of service of notice U/s 50 NDPS Act and for this reason Addl. PP for State should have cross examined PW 9 with regard to his presence at the time of serving of notice. The defence counsel has relied upon the judgment of Vijaysinh Chandubha FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.52 53 Jadeja Vs State of Gujarat reported in 2010(4) JCC ( Narcotics) 236. He has further argued that the prosecution has also failed to prove on record that the suitcase Ex. P2 was checked in baggage belonging to accused Mohd Masoom and that he had brought the same alongwith him from Kabul. It is further submitted that when the suitcase Ex. P2 was seized, the baggage tag affixed on the checked in baggage ought have been there but there is no reference of the baggage tag in any of the documents prepared during the investigation. It is submitted that this leads to the inference that there was no baggage tag on the suitcase and that if there was baggage tag, it ought have been mentioned in the rukka or in the seizure memo Ex. PW 5/C. It is submitted that for the first time when the case property was produced in the court PW 5 Inspt Sunil Kumar testified about the baggage tag and prior to that there was no mention of baggage tag in any document or even in the chief examination of PW 5. It is further submitted that the name of the passenger is not mentioned on the baggage tag and as such it cannot be used to connect the same FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.53 54 with the accused that he had brought the said bag as his checked in baggage. It is further submitted that the prosecution should have collected evidence that the baggage tag Ex. P1 was allotted to the accused Mohd. Masoom. The defence counsel has further submitted that the possibility of affixation of the baggage tag to falsely implicate the accused cannot be ruled out, as he had demonstrated in the Court that the baggage tag could be easily removed from the bag and reaffixed thereon. Further that no evidence has been led from the Airlines that he was carrying any checked in baggage. It is submitted that there is no explanation as to why the accused Mohd Masoom would keep 510grams of smack in his pocket and why he would keep the smack weighing 7100grams in the suitcase Ex. P2. It is submitted that since the prosecution has failed to prove that the suitcase in question Ex. P2 belongs to accused Mohd Masoom which was allegedly containing 7100grams of smack, therefore no statutory presumption can be drawn against him U/s 35 & 54 NDPS Act. It is further submitted that the provisions of Sec. 52 FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.54 55 and 55 NDPS Act have also not been complied with. That there are discrepancies in the testimony of the official witnesses and it is not proved on record as to how many CFSL forms were prepared and which of the police officials had signed the same. It is submitted that two FSL forms were prepared and he had signed the same but when the FSL form was produced by PW 14 Dr. Madhulika Sharma, Asstt Director, FSL Rohini, the same was not bearing his signature and thus the fabrication of the FSL form cannot be ruled out. It is submitted that the prosecution story is improbable that the police officials remained at IGI Airport for such a long period from 12:30pm to 07:30pm and they were not noticed by any Airport Authority nor any objection to their vehicle being parked on the road nor any objection was raised by the Traffic officials present at the IGI Airport, to the parking of the vehicle of the accused at a wrong place. It is further submitted that non joining of the public witnesses in the entire proceedings despite the fact that the police officials had ample time before the apprehension of the accused persons to join them, creates FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.55 56 doubt about the truthfulness of the prosecution case. It is submitted that in these circumstances accused Mohd Masoom deserves to be acquitted.
31 So far accused Raju Dawar is concerned, the written submissions have been filed on his behalf by advocate Sh Deepak Ghai, wherein it is submitted that accused Raju Dawar has been falsely implicated. That no public witness was joined in the proceeding despite the fact that as per the prosecution the secret information was received at 09:30am and alleged recovery took place at 07:30pm and the police officials remained present at IGI Airport from 12:30pm to 07:30pm. It is further submitted that it has come on record that near the Exit Gate of IGI Airport there was office of Traffic police, prepaid booth and even the officials posted at IGI Airport were also present there but no independent witness was joined. It is further submitted that as per the case of the prosecution, Metro construction work was going on within the vicinity and many labourers, engineers and metro officials were present there but none was joined in the proceeding and FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.56 57 the stereo type of explanation was given by the IO that they had requested them but they refused to join. It is further submitted that there are material contradictions in the testimony of the official witnesses and thus mere heavy recovery is not a ground to come to the conclusion that whatever has been stated by the police officials is gospel truth.
Regarding FSL form as argued by advocate Sh Yogesh Saxena, counsel for accused Mohd Masoom, it is also mentioned in the written submissions filed on behalf of accused Raju Dawar that though PW 5, IO of the case testified that he had prepared only one FSL form but PW 9 ACP Rajender Bakshi stated that two FSL forms were prepared and they had signed both of them. That the FSL form Ex. PX produced by PW 14 Dr. Madhulika Sharma, Asstt Director, FSL Rohini, is not bearing the signature of PW
9. Regarding receiving of secret information, it is submitted that again there are contradictions in the testimony of PW 5 Inspt Sunil Kumar, PW 9 ACP Rajender Bakshi, FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.57 58 PW 10 Inspt Sharat Chandra and PW 11 ASI Brahm Parkash. It is submitted that as per the testimony of PW 5, ACP had verified the information from the secret informer in his room, where he was not present and after ACP had verified the information he was called by him in his room. Whereas PW 9 testified that PW 5 was present while he was verifying the fact from the secret informer. That PW 10 testified that when the secret informer approached their office at that time only he was present alongwith Inspt Sunil Kumar. In his cross examination he stated that PW 11 SI Brahm Prakash met him on 26.11.2009 at about 10:40am in the office of ISC at the time of departure of raiding party. Whereas PW 11 testified that the secret information was received by PW 5 Inspt Sunil Kumar in his office at 09:20am in his presence.
It is further submitted that the secret informer had not been examined in the present case therefore the testimony of PW 5, PW 10 and PW 11 with regard to receiving of the secret information is not admissible and to this effect he had relied upon the judgment of Hon'ble FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.58 59 Supreme Court in the case of Bhugdon Mul Ganga Ram & Ors Vs State of Gujarat, 1983 Crl. L J page 1276. The other judgment relied upon to this effect of our own High Court in the case of Surender Vs State, Crl. Appeal No 21/94 decided on 03.07.09.
Regarding DD No. 8 dated: 26.11.09 Ex PW 5/H regarding receipt of secret information, it is submitted that there are discrepancies with regard to number of copies prepared. PW 5 testified that he had prepared only one copy of the same which he handed over to the Reader of the ACP. Whereas PW 10 Inspt. Sharat Chandra testified during cross examination that he was not aware of how many copies of such information were prepared by Inspt. Sunil Kumar. He testified that the copy of the said DD entry was taken alongwith by Inspt Sunil Kumar when he left the office for raid. It is submitted that it is not proved at what time DD No. 8 Ex. PW 5/H was received by PW 9.
Regarding the log book of the Qualis vehicle in which the police officials had left their office for raid, it is FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.59 60 submitted that the record of the log book is doubtful, as in the same there is a entry of visit of official vehicle at Patiala House on 26.11.09, whereas this vehicle has been shown to be in the possession of Inspt Sunil Kumar from 09:30am to late night on 26.11.2009. It is submitted that the entries in the log book were fabricated.
Regarding parking of Matiz car and the official vehicle at IGI Airport, it is submitted that as per the prosecution case the Matiz car of accused Raju Dawar and official vehicle of the police already remained parked on the road side near Exit Gate No. 2 of T2, Terminal of IGI Airport and it is admitted by PW 5 Inspt Sunil Kumar and PW 10 Inspt. Sharat Chandra that there was traffic police near the Exit Gate No. 2 of IGI Airport and parking of vehicle alongwith the road sides on the roads leading to the Arrival or Departure Gate of IGI Airport is strictly prohibited but surprisingly no action was taken against accused Raju Dawar or the police officials by the traffic police, though the vehicles remained there for more than 12 hours. It is submitted that in FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.60 61 thee circumstances the prosecution story is not trustworthy.
The defence counsel has also assailed that the presence of PW 9 ACP Rajender Bakshi is doubtful at the spot in view of his testimony that he had signed the notices U/s 50 NDPS Act but the notices U/s 50 NDPS Act Ex. PW 5/A and Ex PW 5/B do not bear his signature. That PW 5 Inspt Sunil Kumar in his chief examination stated that ACP had reached the Airport at 06:30pm, whereas in his cross examination he rectified his mistake and stated that he had reached there at about 2:30pm but had met them at 06:30pm. It is submitted that even during his chief examination PW 9 ACP Rajender Bakshi made various improvements and stated new facts which do not find mention in his statement U/s 161 Cr. PC.
It is further submitted that even the visit of the police party at B6 Lajpat NagarIV, New Delhi is doubtful, as there are contradictions in the testimony of the witnesses with regard to the signal given by PW 5 Inspt Sunil Kumar to the other members of the raiding party after secret informer pointed out the accused and as to whether the official FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.61 62 witnesses were in the WagonR at that time or outside. Further that the official witnesses also could not tell the location of B6, Lajpat NagarIV, New Delhi and no site plan was prepared.
Regarding the colour of the alleged recovered substance, it is submitted that in the rukka Ex. PW 5/F the colour of the substance is mentioned as brown which is also stated so by PW 5, whereas when the case property was produced in the Court it was of light yellow/mustard colour and PW 9 ACP Rajender Bakshi had given the colour of the same was white. It is submitted that the case property was tampered and planted upon the accused Raju Dawar. It is further submitted that the prosecution has failed to prove that accused Raju Dawar was in conscious possession of the smack which was allegedly recovered from the suitcase Ex. P2. It is submitted that accused is working with his brother Kulwinder Dawar and on 26.11.09 he was present at their office No. B14, Second Floor, Old Double Storey, Lajpat NagarIV Market, New Delhi alongwith his brother Kulwinder Dawar and his partner Rajesh Kumar Sabharwal since 11:00am. His brother is doing FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.62 63 the business of Kurtis and the accused Raju Dawar used to help him in his business. At about 2:00pm on the same day one Afghani namely Mohd Majid came to their office and selected few Kurits for purchasing and told Kulwinder Dawar that some of his acquaintances were arriving from Afghanistan and he went to go to Airport to receive them. Mohd Majiz told them that those Afghanis would also purchase Kurtis. At this, Kulwinder Dawar made a call to PW 12 Praveen Kumar at about 3:30pm and requested him to arrange a vehicle for taking Afghani customer namely Mohd Majid to the Airport to receive his acquaintances. Accused Raju Dawar went to the shop of Praveen Kumar at 3:40pm and brought the Matiz car No. DL 3 CQ 7070 and from there he took Matiz Car alongwith him to IGI Airport and reached there at 6:00pm. After parking his vehicle in nearby parking Mohd Majid asked him to wait outside the Exit Gate No. 2 of Arrival hall and he himself entered the Arrival hall. That at about 7:30pm some Afghani persons came out of Gate No. 2 and inquired from accused Raju Dawar for FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.63 64 prepaid taxi booth. As accused was having good hold of Afghani language so he asked them to wait there and told them that taxi will come there only and all of a sudden few persons in plain clothes came and took the accused alongwith Afghani persons in a car by putting black strip on the eyes of the accused. It is submitted that it has come on record that Exit Gate No. l opens near the PS IGI Airport and no police official was present there, so the possibility cannot be ruled out that Mohd Majid escaped from there and out of anger the police falsely implicated the accused.
It is further submitted that PW 12 Praveen Kumar has supported the defence version that accused Raju Dawar had taken his Matiz Car from him on 26.11.2009 at 4pm and as such it falsifies the story of the prosecution that they followed accused Raju Dawar at 11:30pm from B6, Lajpat NagarIV Market, New Delhi. That the brother of the accused Raju Dawar has appeared as defence witness and has also deposed on these lines and his testimony remained unshaken during cross examination. It is further submitted that it is held FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.64 65 by the Hon'ble Supreme Court in the case State of Haryana Vs Ram Singh reported in 2002(2) SCC page 426 that the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution.
It is submitted that it has not be deposed by any of the witnesses that any contraband was recovered at the instance of accused Raju Dawar or he was aware about the presence of contraband in the suitcase Ex. P2, therefore there is nothing on record to suggest that the accused Raju Dawar was in conscious possession of the contraband or was in contact with accused Mohd Masoom or there was any conspiracy between them. It is submitted that possession, in order to amount an offence must be conscious and exclusive. It must be to the knowledge of the person on whom the liability is sought to be fastened. Such a person must have dominion and control over such article and it must be exclusive.
Regarding the number plate of the car bearing No. DL 2 CQ 7070, it is submitted that it was never seized by FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.65 66 the police and no seizure memo was prepared. Further that when PW 12 Praveen Kumar, the owner of the Matiz Car was examined, he stated in his cross examination that when he received the vehicle on superdari it was bearing number plate of DL 3CQ 7070. It has further submitted that as per the cross examination of PW 5 Inspt Sunil Kumar, accused Raju Dawar was talking on phone and it is submitted that no call details record has been placed on record by the prosecution to prove that accused Raju Dawar was in contact with accused Mohd Masoom and if he was in touch with him and the flight was delayed, accused Raju Dawar would not have gone to the Airport at 12:30pm.
Regarding the seal used for sealing the case property and other articles, it is submitted that as per the prosecution it was given to PW 6 Inspt Naresh Solanki but no memo was prepared in this regard and similarly PW 8 SHO Inspt. Akshay Kumar also kept his seal with him after use, therefore chances of tampering of the case property and sample cannot be ruled out. Further that PW 8 Inspt Akshay FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.66 67 Kumar did not deposit the case property to the nearest PS from the place of seizure of the Narcotics Substance which is contrary to the provisions of Sec. 52 of the NDPS Act. It is submitted that in view of the above discrepancies, the prosecution has failed to prove the guilt of accused Raju Dawar beyond reasonable doubt, hence he is liable to be acquitted of the offences he is charged with.
32 On the other hand, Ld. Addl. PP for State has submitted that the prosecution has proved its case beyond reasonable doubt against both the accused persons that there are criminal conspiracy between the two and in furtherance of the same the smack was imported to India illegally by accused Mohd Masoom and 7100grams smack was recovered from the suitcase Ex. P2 which was held by accused Raju Dawar and was bearing baggage tag No. 0002645 and 510grams was recovered from the pocket of the jacket worn by accused Mohd Masoom. It is submitted that in pursuance of the secret information, the members of the raiding party had chased accused Raju Dawar from B6 Lajpat NagarIV FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.67 68 Market, New Delhi to the IGI Airport and on the Arrival of flight from Kabul the accused had gone to Exit Gate No. 2 of Arrival Hall and returned alongwith accused Mohd Masoom holding a grey colour suitcase Ex. P2 which was found containing smack weighing 7100grams and the smack of 510grams was recovered from the pocket of jacket of accused Mohd Masoom. It is submitted that there cannot be any direct evidence of the criminal conspiracy and it has to be inferred from the facts and circumstances of each case. That in the present case the accused has failed to explain as to why he had gone to IGI Airport to pick up accused Mohd Masoom if they were not known to each other and had no prior meeting of mind. It is further submitted that the defence taken by the accused that one Mohd Majid had visited their shop and selected some Kurtis for purchasing and then had told them that some of his acquaintances were coming from Afghan and they would also make some purchases from the brother of the accused and that he had to go and pick them up from the Airport and then the brother of the accused sent Mohd Majid FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.68 69 alongwith accused Raju Dawar in the borrowed vehicle of PW 12 Praveen Kumar to pick up the Afghani Nationals who were to arrive from Kabul is nothing but concoction. That there is no evidence on record led by the defence except the oral testimony of DW 1 Sh Kulwinder Dawar, the brother of accused Raju Dawar and his statement U/s 313 Cr PC to prove that any person by the name of Mohd. Majid visited their shop and accused Raju Dawar had accompanied to the IGI Airport to pick up his acquaintances. That the argument that contraband was planted upon the accused is of no consequence, as the quantity is so huge that it cannot be planted and at the same time no reason has been assigned by the accused for his false implication by the investigating agency. It is submitted that even if it is believed that any person by the name of Mohd Majid had visited the shop of DW1 Kulwinder Singh, where was the necessity of borrowing the car of PW 12 Praveen Kumar and they could even hire a taxi to pick up the Afghanis Nationals who were acquainted Mohd Majid and were to FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.69 70 arrive from Kabul.
It is submitted that the provisions of Sec. 42, Sec. 50, Sec. 55 and Sec. 57 NDPS Ac have been duly complied with in the present case and non compliance of Sec. 52 NDPS Act is not fatal to the prosecution as it is a directory provision.
Regarding the baggage tag found affixed on the suitcase Ex. P2, it is submitted that the baggage stub was found affixed on the Air ticket Ex. PW 13/A recovered from the possession of accused Mohd Masoom and the baggage stub bearing the same number as on the baggage tag which was found affixed on the suitcase and thus it cannot be said that the baggage tag was planted upon the suitcase of the accused. It is submitted that it appears from the record that the official witnesses were not aware of as to what is baggage tag or baggage stub and for this reason they mentioned the number of the baggage stub/ tag as number of the Air ticket of the accused Mohd. Masoom in the seizure memo which was prepared at the spot, therefore there is no question of its being planted in the present case.
FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.70 71
Regarding the testimony of PW 12 Praveen Kumar that accused Raju Dawar had borrowed the Matiz Car from him on 26.11.09 at 04:00pm instead of 25.11.09, it is submitted that he is admittedly friend of DW1 Kulwinder Dawar, brother of accused and thus he was won over by the accused and has given a false statement in the Court. He was tutored witness by the defence and for this reason he testified in his cross examination that when her received the Matiz Car from the office of Special Cell, it was bearing number plate of DL 3 CQ 7070, whereas the perusal of his entire testimony leads to inference that it was false statement.
Regarding the non joining of the public witnesses, it is submitted that merely for the reason that the public witnesses were not joined in the investigation, the testimony of the official witnesses cannot be rejected and they are to be given equal treatment as the public witnesses are entitled to. That the discrepancies, contradictions pointed out in the testimony of the official witnesses are minor in nature and do not effect the case of the prosecution in any manner. FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.71 72 That the contradictions/ discrepancies make their testimony natural as they did not make parrot like statements which could have reflected that they were tutored and had not made statements from their memory. In support of its claim, the prosecution has relied upon the judgment of "State of U. P Vs.Krishna Master & Ors reported in AIR 2010 S.C. 3071. 33 After hearing the submissions of both the parties, I have gone through the material on record carefully. 34 The relevant witnesses to the prosecution to prove the secret information received in the officer of interstate Cell criminal Branch and the recovery of contraband from the possession of both the accused Raju Dawar and Mohd Masoom at IGI Airport are PW 5 Inspt. Sunil Kumar, PW 6 Inspt Naresh Solanki, PW 9 ACP Rajender Bakshi, PW 10 Inspt Sharat Chandra and PW 11 ASI Brahm Parkash.
35 PW 5 Inpst. Sunil Kumar has deposed about receiving a secret information at his office that one person namely Raju Dawar s/o Yash Dawar, r/o B 6 Old Double Storey Building, Lajpat Nagar IV is engaged in drug trading FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.72 73 alongwith Afghan Nationals and on that day i e 26.11.09 he would receive a huge consignment of Heroin/smack at IGI Airport from Afghan Nationals who may arrive in India via Afghan National flight at about 12:30pm or thereafter. He deposed about bringing this information to the knowledge of ACP ie PW 9, about verification of the contents of the secret information from secret informer by PW9 and that PW 9 ordered to proceed as per the procedure. As per his testimony, DD No 8 Ex PW 5/H was recorded in daily diary register by him and he had sent the copy of the same to the ACP Interstate Cell i e PW 9 in compliance of the provisions of Sec. 42 NDPS Act. To the similar effect is the testimony of PW 6 Inspt Naresh Solanki, PW 10 Inspt Sharat Chandra and PW 11 ASI Brahm Parkash who deposed on the lines of testimony of PW 5. PW 9 ACP Rajender Bakshi has corroborated the testimony of all the witnesses referred above, particularly, PW 5 that at 9:30am he had received the secret information and secret informer was produced before him by PW 5 in his office at ISC Crime Branch Chankya Puri and he had verified the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.73 74 authenticity of the information. He also admitted that he had received the photocopy of the DD No. 8 Mark PW 5/A lateron exhibited as Ex.PW 5/H to this effect lodged by Inspt Sunil Kumar in daily diary register in compliance of the provisions of Sec. 42 of the NDPS Act. The argument of the defence counsel Sh Deepak Ghai that the prosecution has failed to prove as to how many copies of said DD were prepared is of no consequence, as it is not material as to how many copies of the DD were prepared but what is important is the compliance of the provisions of Sec. 42 NDPS Act. The other argument of the defence counsel that the copy of the DD No. 8 which is proved on record is not bearing the signature of ACP, in my opinion, is of no consequence as PW 9 in his examination in chief has testified in para 2 on seeing the photocopy of the DD already Mark PW 5/A that it was bearing his photo signature at point B. Lateron said DD was exhibited as Ex. PW 5/H. In these circumstances, the prosecution has duly proved on record that in compliance of the provisions of Sec. 42 NDPS Act, DD No 8 dated 26.11.09 was lodged by PW 5 Inspt Sunil Kumar at FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.74 75 10:00am and the copy of the same was sent to PW 9 ACP Rajender Bakshi.
36 As per the testimony of PW5, it is after the lodging of DD No. 8 Ex.PW 5/H the raiding party was formed consisting of PW 5 himself, SI Sharat Chandra, SI Naresh Solanki,ASI Balbir, ASI Brahm Parkash, HC Om Parkash, HC Dhan Vir, Ct Subhash and Ct. Yogender and alongwith the secret informer they left the office of crime branch in the official vehicle Qualis bearing registration no, DL 6C J 0517 and in one private car and to this effect the prosecution has proved on record DD No 10 dated 26.11.2009 Ex. PW 5/J whereby they had left the office of crime branch in pursuance to the secret information.
37 It is categorically testified by PW 5, PW 6, PW 10and PW 11 that from the office of crime branch they had reached Lajpat Nagar, Part IV, at about 11:30am near House No B6 Double Storey. PW 5 has testified that one boy was spotted while sitting in the Matiz Car of white colour bearing No. DL 2CQ 7070 and he was pointed out by the secret FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.75 76 informer as Raju Dawar who had come down stairs from his house i e B6 Lajpat Nagar and thereafter the secret informer left and Raju Dawar moved his car and the police officials followed him and reached IGI Airport where Metro construction was going on near Arrival Gate No. 2 at about 12:30pm. To the similar effect is the testimony of PW 6, PW 10 and PW 11. It is pertinent to mention that the accused Raju Dawar during the investigation gave his residential address as B - 6 Second floor, Old Double Storey Lajpat Nagar, New Delhi, it is so mentioned in his arrest memo Ex. PX 11/A and personal search memo Ex PW 11/C. The same address is given in his disclosure statements Ex PW 11/J, Ex PW 11/H, Ex. PW 13/I, Ex. PW 13/H and Ex PW 13/G. It is for the first time in his statement U/s 313 Cr PC he has mentioned that he is resident of 126 B Village Kilokari. DW 1 Kulwinder Dawar also testified in his chief examination that his brother is resident of 126/B Second Floor, village Kilokari and that DW 1 is residing at H No. B6 Third floor, Old Double Storey, Lajpat Nagar, IV, New Delhi. There is no evidence on record led FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.76 77 by the accused Raju Dawar that he is resident of house No. 126/B Second Floor, village Kilokari and that he is not residing at H No. B6 Third floor, Old Double Storey, Lajpat Nagar, IV, New Delhi. At the same time, it is seen that to none of the prosecution witnesses it was suggested that the accused was resident of Kilokari and not of B6 Lajpat Nagar IV, New Delhi. It has not even been disclosed as to why such defence has taken by the accused. It is further important to notice that though accused in his statement U/s. 313 Cr. PC has stated that on 26.11.2009 he was present at their office situated at B 14 Second floor, Old Double Storey Lajpat Nagar IV Market, New Delhi and to the similar effect is the testimony of DW 1 his brother Kulwinder Dawar but to none of the prosecution witnesses the suggestion has been given that firstly accused was not resident of B6 Lajpat Nagar and secondly that at 11am and thereafter he was present at his office referred above so as to belie the case of the prosecution that the accused Raju Dawar could not be pointed out by the secret informer at that time near house No. B6 Lajpat FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.77 78 NagarIV, New Delhi since he was not present there at that time but was present at their office at B 14 Lajpat Nagar Market. The argument of the defence counsel is that the visit of the police officials near the house No. B6 Lajpat Nagar IV New Delhi is doubtful, as there were discrepancies in the testimony of PW 10 Inspt Sharat Chandra and PW 11 SI Brahm Parkash about the location of the police and the Matiz car . However, in my opinion, such type of contradictions are normal in the ordinary course of nature as the power of observations of the surroundings differ from person to person and moreover in the present case it is the case of the prosecution that only PW 5 Inspt Sunil Kumar and PW 10 Inspt Sharat Chandra had got down from their vehicle at Lajpat Nagar, whereas rest of the police officials kept sitting in the vehicles and during the short period of stay at the said spot while PW 5 Inspt Sunil was busy alongwith the secret informer waiting for the accused to arrive and PW 10 Inspt. Sharat Chandra was busy asking the passersbye to join the raiding party. As such, the discrepancies / contradictions FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.78 79 pointed out by the defence counsel in the testimony of two witnesses are not of much consequence.
38 PW 5 has further testified that they reached the IGI Airport at 12:30pm and they had asked some public persons to join the raiding party but they refused as they were busy in their work. To the similar effect is the testimony of PW 6 that Inspt Sunil and Inspt Sharat Chandra contacted some passersby and requested them to join the raiding party but they expressed their inability. PW 10 Inspt. Sharat Chandra also deposed on the same lines and their testimony is corroborated by PW 11 to this effect. It is observed from the testimony of all the four witnesses that they were scattered in the area outside the Arrival hall and they all waited for the flight No. FG 311 Ariana Afghan Airlines which was to arrive from Afghan but was delayed and at the same time they kept an eye on accused Raju Dawar who remained his car. PW 5 has categorically testified that accused Raju Dawar had parked his car ahead of the place where Metro construction was going on and the police officials had parked their vehicle at a distance of FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.79 80 50 to 60 from his vehicle. As per the testimony of PW 6 Naresh Solanki he was deputed in the parking of the Arrival area which was at a distance of about 10 meters from the Matiz car of the accused and he testified that he was concentrating more on the Matiz car in which the accused was sitting. PW 5 nodoubt in his testimony deposed about the Arrival of PW 9 ACP Rajender Bakshi at the spot at 6:30pm whereas the other witnesses deposed that he had arrived there at 2:30pm. However, PW 5 in his cross examination clarified that he had met PW 9 at 6:30pm, though he did not testify about the time of Arrival of ACP at the spot. Again a question was put to him by the defence counsel in cross examination regarding arrival of ACP Rajender Bakshi at the IGI Airport and PW 5 stated that he had arrived there at 2:30pm and met them at 06:30pm. The defence counsel has argued that such discrepancy in his testimony creates doubt about the presence of PW 9 at the spot. However, from the testimony of PW 5 and other prosecution witnesses it is clear that though PW 9 had arrived the spot at 2:30pm but he met PW 5 at 6:30pm. No suggestion FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.80 81 was given to PW 5 that he was making a false statement to this effect. So far PW 6, PW 10 and PW 11 are concerned, they all testified in one voice that ACP had reached IGI Airport at 2:30pm and no suggestion was given to these witnesses that ACP had not visited the airport at that time. PW 9 ACP Rajender Bakshi also in his chief examination stated that he had reached the IGI Airport at about 2:30pm and his said testimony was not rebutted during cross examination. As such, the presence of PW 9 at the IGI Airport 2:30pm onwards is proved on record.
39 It is admitted case of the defence that accused Raju Dawar was present at IGI Airport at 6 pm in the Matiz Car belonging to PW 12, though it is claimed that he had gone there alongwith Mohd Majid who was to receive some Afghan Nationals, his acquaintances and they were to be taken back to the shop of DW 1 for making purchase of Kurtis. PW 5 in his chief examination has categorically testified that the Ariana Afghan Airlines Flight had arrived at 7:30pm and thereafter accused Raju Dawar got down from his car and went FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.81 82 towards Gate No 2 and they followed him. Raju Dawar entered the Arrival Gate No. 2 whereas the members of the raiding party stood outside. At about 7:40pm accused Raju Dawar holding one sliver colour suitcase in his right hand came out alongwith one Afghani National holding Afghani cap and when they were about to sit in the Matiz car PW 5 alongwith PW 10 SI Sharat Chandra reached their car and stopped them from sitting inside. PW 5 gave his introduction to them and disclosed about the secret information that they were possessing drugs. In the meantime ACP Rajender Bakshi had also arrived there. On inquiry both the accused disclosed their name as Raju Dawar and Mohd Masoom respectively. To the similar effect is the testimony of PW 6, PW 9, PW 10 and PW 11 and their said testimony has not been rebutted in any manner despite lengthy cross examination by the defence counsel.
40 PW 5 Inspt Sunil Kumar testified that after serving notice U/s 50 NDPS Act to both the accused persons, he checked the silver colour suitcase in the presence of SI FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.82 83 Sharat Chandra, SI Naresh Solanki and ACP Rajender Bakshi. He stated that the suitcase was containing three pairs of clothes but it was quite heavy. At this, with the help of knife taken out from the IO kit, the inner bottom portion of the suitcase was cut open and the same was found containing one yellow and blue colour polythene of big size which was also cut open with the help of knife and it gave strong smell suspected to be containing smack. Then the polythene was taken out from the suitcase and was weighed on the electronic weighing scale and was found to be 7100grams in weight. That the contents of the same were in powdery form and of brown colour. Two samples of 50grams each were drawn therefrom and the remaining powder alongwith polythenes were converted in a cloth parcel, sealed with the seal of SK IIIS and said pulanda was given Mark R. He further testified that the two samples drawn from the recovered substance were kept separately in polythene and were then converted into two separate cloth pulandas and were sealed with the seal of SKIIIS and were given Mark S1 and S2. The recovered FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.83 84 substance was seized vide seizure memo Ex. PW 5/C. On the same lines is the testimony of PW 6 Inspt Naresh Solanki, PW 9 ACP Rajender Bakshi and PW 10 Inspt Sharat Chandra. The aforesaid testimony of all the prosecution witnesses has not been rebutted in any manner despite lengthy cross examination. Thus it stands proved on record that 7100grams substance was recovered from the suitcase Ex. P2 which was held by accused Raju Dawar at the time of his apprehension. 41 Similarly, the prosecution has proved on record the recovery of smack weighing 510grams from the possession of accused Mohd Masoom vide the testimony of all these witnesses. Consistently, these witnesses have testified that from the formal search of accused Mohd Masoom, from the left side pocket of his jacket a transparent polythene was found which was checked and was found containing brownish colour powder smelling like smack and that two separate samples of 50grams each were drawn therefrom.
42 So far PW 5 Inspt Sunil Kumar is concerned, though it is suggested to him that no contraband was FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.84 85 recovered from the possession of the accused Raju Dawar but in no manner it has been suggested to the witness that the said accused was not apprehended/ arrested at IGI Airport. To the contrary, the suggestion was given to the witness that accused Raju Dawar was present at IGI Airport at 6:00pm alongwith one Afghani National namely Mohd Majid in vehicle No. DL 3CQ 7070 to receive acquaintances of Mohd Majid who were to arrive by Ariana Afghani Airlines. The defence of the accused taken by him in his statement U/s 313 Cr PC that after parking his vehicle in nearby parking Mohd Majid had asked him to wait outside Exit Gate No. 2 for Arrival hall, whereas he himself entered the Arrival hall, that after sometime at 7/7:30pm some Afghani persons came out from Gate No. 2 and enquired from him about the prepaid taxi booth as he was having the knowledge of Afghani language, he asked them to wait there and told that taxi will come there and they could take the same, that all of a sudden few persons in plain clothes came there and took him alongwith Afghani persons in a car by putting a black strip on his eyes, FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.85 86 took them to some office and there he came to know that they were police officials, that they forced him to sign some written, semiwritten and blank papers forcibly and also forced him to write some matter on their dictation was not put to PW 5 Inspt Sunil Kumar or any other witness which itself leads to the inference that the defence is concocted and after thought and nothing of that sort had happened with accused Raju Dawar at IGI Airport but was apprehended in the manner deposed by prosecution witnesses. The prosecution has proved on record the notice U/s 50 NDPS Act Ex. PW 5/B served upon accused Raju Dawar bearing his signature and the other documents ie the seizure memo Ex.PW5/C bearing his signature at four places at point A4, his arrest memo Ex. PW 11/A bearing his signature in the column signature of arrestee, his personal search memo Ex. PW 11/C is also bearing his signature. Then there are five disclosure statements Ex. PW 11/H, Ex. PW 11/I, Ex. PW 13/F, Ex PW 13/G and Ex. PW 13/H of the accused Raju Dawar and all these disclosure statements are bearing his signatures but no suggestion was given to PW FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.86 87 5 or any other witnesses that the signatures of accused Raju Dawar were obtained on all these documents forcibly. In no manner the defence taken by the accused has been put on these witnesses which leads to the inference that the defence has been concocted lateron.
43 It is the argument of the defence counsel Sh Deepak Ghai, counsel for accused Raju Dawar that despite the police officials having sufficient time and public witnesses being available at IGI Airport no independent witness was joined in the proceedings and this creates doubt about the truthfulness of the prosecution case and that in view of the contradictions in their testimony the accused persons cannot be convicted on the testimony of official witnesses without independent corroboration. Nodoubt, there was ample time for the official witnesses to join the independent witnesses in the investigation, however it has been explained by all the witnesses that they made all possible efforts to join the independent witnesses but no one was willing to join. In my opinion, the testimony of prosecution witnesses to this effect is FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.87 88 logical also. Why the persons who are present at Airport to receive their friends or relatives would become witnesses, why the persons who are arriving by flight from outside would become part of investigation as they must be having their own prior engagements, similarly why would traffic police officials who are performing their duties to regulate the traffic, would join investigation leaving their duty unattended. Nodoubt, this may amount to lapse on the part of the investigating officer that he did not take any action against any public person who refused to join the public witnesses but for this reason benefit cannot be granted to the accused. Moreover it has been held in Catina of Judgments by the Hon'ble Apex Court as well as by our own High Court that the testimony of official witnesses cannot be disrespected unless there are material discrepancies in their testimony and as such they need to be corroborated by independent evidence. However, in the present case there is nothing on record to disbelieve the testimony of the official witnesses or which makes it necessary to seek independent corroboration from the public witnesses. No such FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.88 89 material contradictions in the testimony of the official witnesses have been pointed out by the counsel for either of the accused so as to say that the testimony of official witnesses does not inspire credence and requires independent corroboration. Nodoubt, some discrepancies have occurred in the testimony of PW 9 ACP Rajender Bakshi as he testified that two separate FSL forms were prepared, whereas case of the prosecution is that only one FSL form was prepared, that PW 9 ACP Rajender Bakshi stated that he was present at the time of service of notice upon accused persons, whereas none other witnesses have so stated, that PW 9 had given the colour of the polythene from which substance was recovered as blue, whereas it is mentioned in the rukka that the colour of the same blue and yellow, these contradictions are minor and may have occurred due to lapse of time and loss of memory. Here it is observed that PW 9 ACP Rajender Bakshi was declared hostile by the prosecution with regard to the colour of the polythene and during his cross examination by Ld. Addl. PP for State he admitted that in his statement U/s 161 Cr PC Ex. FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.89 90 PW 9/PA dated: 27.11.2009 he had stated that the colour of the polythene lying in attachee case containing the substance i e Heroin, was yellow and blue and that his said statement is correct. Again the said discrepancy which occurred in the testimony of PW 9 in his examination in chief regarding the colour of the polythene can be due to normal errors of memory due to lapse of time.
44 Nodoubt, as pointed out by the defence counsel PW 10 Inspt Sharat Chandra was unable to give the exact location of house No. B 6 Old Double Storey Building, Lajpat Nagar, New Delhi when they reached the said place from the side of entry Gate of the market or as to whether the Matiz car was parked in the First or Second Lane, this contradiction or non explanation by PW 10 Inspt Sharat Chandra does not create any doubt in any manner about the veracity or truthfulness of the witnesses, as the incident had taken place about two years back and thereafter many other investigations must have been carried out by the official concerned and such minute details may not have been registered in his mind or FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.90 91 he may not even counted or noticed whether it was the first or second lane where the Matiz car was parked.
45 The other discrepancy pointed out by the defence counsel in his written submissions that as per PW 11 SI Brahm Parkash the secret informer had got down alongwith Inspt Sunil Kumar and SI Sharat Chandra on reaching the spot at Lajpat Nagar, whereas other witnesses have testified that the secret informer kept sitting inside the vehicle. In my opinion, these are minor discrepancies in the case of the prosecution and are not touching to the core of the case and these cannot be a ground for rejection of the evidence of the prosecution witnesses in entirety. It is held by the Hon'ble Apex Court in the case of "State of U. P Vs Krishna Master & Ors reported in AIR 2010 Supreme Court 3071 that:
"Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.91 92 investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. '' It is further held that " the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time. '' FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.92 93
46 Thus in the facts and circumstances of the present case, the contradictions and discrepancies pointed out by the defence counsel in the present case, in my opinion are not touching the core of the case and cannot be a ground for rejection of the evidence of the official witnesses in entirety without independent corroboration. As such, nonjoining of the public witnesses is not fatal to the prosecution. No reason has been assigned by the accused persons is to why they would be falsely implicated by the police officials. 47 It is also the argument of the counsel for accused Raju Dawar that it has been held by the Hon'ble Apex Court in the case of "Bhugdomal Gangaram Vs State of Gujarat, 1983 CRI. L. J 1276" and by the Hon'ble High Court of Delhi in case of "Kassu Ram Vs. State '' and " Surender Vs State" that in the absence of examination of the secret informer as a witness the evidence of the prosecution witnesses with regard to the secret information is admissible, thus the evidence of PW 5, 10 & 11 regarding receiving of the secret information is in admissible on account of non examination of FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.93 94 the secret informer. It is submitted that if the evidence of secret information is not admissible, no reliance can be placed on any of the proceedings conducted in pursuance to any such secret information. I have gone through the Judgments cited by the defence counsel. The Hon'ble Apex Court in the case of Bhugdomal Gangaram Vs State of Gujarat, Supra, has observed:
" But since the informant has not been examined as a witness, the evidence of PW 12 that he was informed that accused No. 3 and 4 would be coming behind the truck in a taxi is not admissible.'' In another Judgment of the Hon'ble Apex Court in the case of Kanhai Mishra Alias Kanhaiya Misar Vs State of Bihar, 2001(3) SCC 451, it is observed:
" Secret information alleged to have been received by investigating Officer without disclosing its source cannot be made basis to prove a circumstance. '' FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.94 95
48 Admittedly, in the present case the source of secret information has not been disclosed. Thus relying upon the Judgments, referred above, the evidence of PW 5, 6, 10 and 11 regarding the receiving of the secret information is inadmissible. However, even if we exclude the evidence of receiving the secret information, still the evidence on record through the testimony of the witnesses, referred above, that accused Raju Dawar and Mohd Masoom were apprehended at about 07:30pm on 26.11.09 by these witnesses and recovery of contraband was effected from their possession cannot be ignored, particularly, in view of the admission of the accused vide suggestions to the prosecution witnesses as well as his statement U/s 313 Cr PC and vide the testimony of DW 1 that on the day of the incident he was present at IGI Airport at 06:00pm. He has also admitted his apprehension at the IGI Airport alongwith some Afghanis, though he has denied that it is accused Mohd Masoom and has also denied the recovery of contraband from his possession. However, in this regard the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.95 96 attending circumstances are to be taken into consideration alongwith the defence taken by the accused. Vide his statement U/s 313 Cr PC, the accused Raju Dawar has taken the defence that on 26.11.09 he was present at their office situated at B14, Second floor, Old Double Storey, Lajpat NagarIV, New Delhi alongwith his brother Kulwinder Dawar and his partner Rajesh Kumar Sabharwal since 11:00am. That one Afghani namely Mohd Majid came to their office at about 02:00pm and he selected few Kurtis for purchasing and told his brother that some of his acquaintances were arriving from Afghanistan and he wanted to go to Airport to receive them and that those Afghanis would also purchase Kurtis from his brother and at this, at the instance of his brother he borrowed Matiz car bearing registration No. DL 3CQ 7070 from Sh Praveen Kumar i e PW 12 and went to IGI Airport alongwith Mohd Majid, where they reached at about 06:00pm. It is claimed that vehicle was parked by him in the nearby parking. Mohd Majid asked him to wait outside Exit Gate No. 2 of Arrival Hall and entered the Arrival hall. After FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.96 97 sometime at about 7/7:30pm some Afghani persons came out from Gate No. 2 and made inquiry from him about prepaid taxi booth, as he was having knowledge of Afghani language, he asked them to wait there and told that taxi would come there and they could hire the same. That all of a sudden few persons in plain clothes came there and took him alongwith those Afghani persons in a car by putting a black strip on his eyes and took them to some office where he came to know that they were police officials and there they made him sign some written, semiwritten and blank papers forcibly and he was also forced to write some matter on their dictation. He stated that nothing incriminating or contraband was recovered from his possession. As observed, the entire defence of the accused that he was apprehended outside the Exit Gate No. 2 of Arrival Hall alongwith some Afghani persons who were making enquiry from him about prepaid taxi booth, by some persons in plain clothes and a black strip was put on his eyes and they were all removed in a car to some office where he was forced to sign and write some documents, has not been put to any of the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.97 98 prosecution witnesses. Besides, its has not been explained by the accused as to why he accompanied Mohd Majid to IGI Airport to bring some of his acquaintances, who as per DW 1 had visited their shop for the first time and at the same time it is not the case of defence that Mohd. Majid had asked the accused to accompany him to IGI Airport to receive his acquaintances, why he did borrow the vehicle of PW 12 Parveen Kumar for this purpose, why he did not hire any taxi or made arrangement for some vehicle for Mohd Majid to bring his acquaintances to their shop for making purchases. At the same time, it is observed that Rajesh Kumar Sabharwal, the partner of DW 1 Kulwinder Dawar has not been examined as a defence witness to prove that any such Afghani person namely Mohd Majid had visited their shop and at his instance accused Raju Dawar had gone to IGI Airport alongwith Mohd Majid to receive his acquaintances who were arriving from Afghanistan to bring him to his shop. Besides, the defence taken by accused Raju Dawar that some Afghani persons came out from Exit Gate No 2 and made enquiry from him about FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.98 99 prepaid taxi booth, as he was having knowledge of Afghani language, he asked them to wait there, it has not been explained by the accused as to how those Afghanis knew that accused knew Afghani language, as even by appearance the accused does not appear to be Afghani National, so this itself belies the defence taken by him. It is further important to notice that though DW 1 Kulwinder Dawar in his chief examination, has testified that his brother did not return till 10:30pm and when he contacted PW 12 Sh Parveen Kumar and inquired about his brother, he too informed him that accused Raju Dawar had not visited him to return his vehicle and then he ie DW 1 went to the room of his brother at village Kilokari at about 2:00am on 27.11.09 but he found the room locked, so he came back to his house. As per his testimony on the next day as usual he went to his shop at 09:30am. Thereafter he alongwith his partner Rajesh Kumar Sabharwal went to the Airport in search of accused Raju Dawar. It is strange to notice that real brother of the accused did not show any concern about with him when he did not return from the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.99 100 Airport throughout the night. Neither he visited Airport on the same night to make inquiries about his brother nor lodged any report with the police that his brother had gone to the Airport alongwith Mohd Majid but had not returned. It is also important to notice that even PW 12 Sh Praveen Kumar, whose vehicle was borrowed by the DW 1 to pick up the acquaintances of Mohd Majid but had not returned back and his whereabouts were also not known either to DW 1, his brother or to any one but still he did not panic and even he did not lodge any report with the police that accused had gone missing alongwith his car. It is further important to notice that from the jamalalashi of accused Raju Dawar, two mobile phones as mentioned in the personal search Ex. PW 11/C were recovered but from the testimony of DW 1, it seems no effort was made by him to call him on his mobile phone to verify about his whereabouts. Thus it leads to the inference and also creates suspicion that even DW 1 was also aware of the facts that accused had gone to IGI Airport to receive some consignment of drugs or the story of Mohd Majid visiting their FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.100 101 shop was concocted.
49 Further DW 1 Kulwinder Dawar testified that he alongwith his partner Rajesh Kumar Sabharwal went to the Airport on 27.11.2009 and enquired from the parking man about the vehicle No. DL 3CQ 7070 and questioned him if the said vehicle was parked there and had also shown the photograph of his brother but could not find out any clue of his brother. The said statement also does not find corroboration from any other source. Rajesh Kumar Sabharwal has not been examined as defence witness to corroborate the testimony of DW1. Here it is important to notice that as per the statement of the accused Raju Dawar U/s 313 Cr PC, he had parked the Matiz car in the parking but surprisingly no parking slip was recovered from the possession of the accused during his jamalalashi. Moreover, as per the statement of the accused Raju Dawar U/s 313 Cr. PC he was apprehended from near Exit Gate No 2 of the Arrival Hall and was removed in a car to some office with a black strip on his eyes but he did not disclose as to what had happened to the Matiz car which he had parked FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.101 102 in the parking. It is not the case of the accused persons that the Matiz car was removed by the police officials from the parking to the office of ISC Crime Branch, New Delhi. In such circumstances the defence taken by the accused of his apprehension near Exit Gate No 2 and being blind folded is of no consequence. Perusal of cross examination of DW 1 Kulwinder Dawar shows that all these facts testified by him in his chief examination were not narrated by him before the police. Thus the defence taken by accused Raju Dawar has not been proved and in no manner discredits the prosecution case that he was falsely implicated. Here it is also important to observe that neither the accused Raju Dawar in his statement U/s 313 Cr PC nor DW 1 Kulwinder Dawar has testified that accused had any enmity with the police due to which he was falsely implicated. Sh Rajesh Kumar Sabharwal if had been examined as defence witness, he could also have proved on record as to what time accused Rau Dawar had left the shop of his brother on that day and with whom and in what circumstances. Withholding the evidence of this witness leads FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.102 103 to drawing of adverse inference against accused Raju Dawar U/s. 114 (g) Indian Evidence Act.
50 The seizure memo of the Matiz car Ex. PW 11/E was prepared at the spot and no suggestion to the contrary was given to the prosecution witnesses. At the same time no evidence has been produced by the accused Raju Dawar in his defence from the concerned parking where his vehicle was parked. No suggestion was given to the prosecution witnesses that the vehicle in question was parked in the parking. No question was put to the witnesses as to how and from where the said car was seized. Absence of recovery of parking slip from the jamatalashi of the accused shows that vehicle was not parked in the parking and leads to the inference that he was apprehended near the car and not at Exit Gate No.2 of the Arrival hall and only for this reason the car was seized. At the same time, this also leads to the inference that the car was parked at such a place where there was no traffic police official who could object to the parking of the same at that place. Moreover, it is not the case of the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.103 104 prosecution that the police officials were aware of the number and make of the Matiz car on the basis of which they could trace out the same from the parking and seized the same. Though the secret information has been excluded from consideration in view of the Judgment of the Hon'ble Apex Court, however still it is observed that even the secret informer had not disclosed the number of the vehicle in which the accused was to travel to IGI Airport. All these circumstances lead to the inference that accused Raju Dawar has taken the false defence to protect himself. 51 The counsel for both the accused persons have submitted that there is no evidence of conspiracy between the two and as such they cannot be held liable for punishment U/s 29 NDPS Act.
52 As the same time counsel for Raju Dawar has submitted that there is no evidence on record that accused Raju Dawar was aware of the fact that the suitcase Ex. P2 was containing smack. Nodoubt to substantiate a charge U/s 29 of the Act, the prosecution must prove that there was a FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.104 105 criminal conspiracy between both the accused. Generally, direct evidence in proof of a conspiracy is seldom available as conspiracies are not hatched in open. By their virtue they are secretly planned and as such lack of direct evidence relating to conspiracy by an accused has no significance and conspiracy can be proved by circumstantial evidence. The evidence of acts and statements of conspirators in pursuance of the conspiracy can be taken into consideration. 53 In the present case there is ample evidence on record to infer that there was criminal conspiracy between both the accused to export illegally the smack into India and consequently accused Raju Dawar was found in conscious possession of the smack recovered from the suitcase Ex. P2 which though belonged to accused Mohd Masoom but was being carried by accused Raju Dawar and at the same time accused Mohd Masoom was found in possession of 510grams of smack which was recovered from the pocket of his jacket. Here the visit of accused Raju Dawar to IGI Airport alongwith Mohd Majid to bring his some acquaintances to their shop FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.105 106 itself does not appear to be convincing evidence and inspires no credence. As there is no evidence on record that such Mohd Majid was their regular customer and had made huge purchases from them, that they were allured by Mohd Majid that his acquaintances who were to arrive from Afghanistan would also make huge purchase, that accused Raju Dawar accompanied them to IGI Airport to bring his acquaintances to their shop. It is admitted by DW 1 that Mohd Masoom himself had not made any purchases from them but had selected few Kurtis. In these circumstances, it is not believable that accused Raju Dawar would go to IGI Airport alongwith Mohd Majid to receive his acquaintances who might have purchased some Kurtis. It also admitted by DW 1 in his cross examination that he had not take any contact or mobile number of Mohd Majid when he came to their shop or left with his brother. He also admitted that Mohd. Majid had visited their shop for the first time. Besides, why did he borrow the car of PW 12 Sh Praveen Kumar for this purpose. Taxi could also be hired that by Mohd Majid. Thirdly the change of FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.106 107 number plate of the car of PW 12 by accused Raju Dawar also prove his guilty mind and to dodge the police the number plate bearing fake registration number was affixed on the Matiz car. Through the testimony of PW 5, PW 6, PW 10 and PW 11,it is proved on record by prosecution that the car of PW 12 which was seized vide seizure memo Ex. PW 11/E was bearing number plate of registration No. DL 2CQ 7070, whereas, as per PW 12 the owner of the vehicle, the registration No. of his car was DL 3 CQ 7070. Change of number plate on the car speaks volumes that accused had gone to IGI Airport to receive consignment of drugs and for this reason the number plate was changed so as to protect himself from being apprehended. The testimony of PW 12 is relevant in this regard. In his examinationinchief he testified that when he had gone to the office of Chanakyapuri alongwith original RC of the car, he was shown the Matiz car from some distance, as such he could not see the number plate. However, at the same time he admitted that he had obtained the said vehicle on superdari vide superdginama Ex. PW 12/A FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.107 108 but he did not testify as to what number plate the car was bearing at that time and whether the car was bearing any number plate or not. In his cross examination he made all the possible efforts to mislead the Court to believe him that his statement was truthful. Initially he stated that cannot admit or deny if the said vehicle when shown to him on 28.11.09 in the office of ISC Crime Branch it was bearing the number plate of DL 2CQ 7070. He voluntarily stated that he could not see the number plate as he was shown the vehicle from its side position. However, during court questioning, it has come on record that he could not have seen the vehicle from its side portion. He was specifically asked as to how he could identify the vehicle on seeing the same from one side without looking at the number plate, to this the answer was given that since there was no other Matiz car parked there, thus from the colour and on the basis of dent on its front left side door he had identified the said vehicle and that he could see the dent from distance. However, during his further examination he admitted that there were two other vehicles parked on the left FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.108 109 side of his vehicle and one Qualis was parked in front of his vehicle. In such circumstances, if there were two vehicles parked on the left side of his vehicle he could not have seen the dent on the front left side door of the vehicle while sitting inside the office of Crime Branch. This conduct of the witness itself leads to the impression that the vehicle was bearing number plate of DL 2CQ 7070 and to support the accused he was giving the answers favourable to the accused. Otherwise he could have straight away stated that when he took the vehicle on superdari the same was bearing the number plate of DL 3CQ 7070 which he has nowhere testified either in his chief examination or in cross examination by Addl. PP for State and only one question was put to him by the defence in his cross examination to this effect and he stated that the said car was bearing the number plate of DL 3CQ 7070 when he received the same from Special Cell Office. Thus the testimony of this witness does not inspire any reliance. Besides, it is also the case of the prosecution that Ariana Flight was to arrive at about 1:00pm, whereas as per DW 1 Kulwinder Dawar and FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.109 110 accused in his statement U/s 313 Cr PC stated that the customer namely Mohd Majid had arrived at their shop at 2:00pm. They have nowhere stated that Mohd Majid had ever made any inquiry about the time of Arrival of the flight and came to know it was delayed and that for this reason they had reached there at 06:00pm. Moreover, it is not the case of the defence that accused Mohd Masoom was known to accused Raju Dawar, in these circumstances why would he hold the suitcase belonging to Mohd Masoom as it is stated by all the prosecution witnesses that the accused Raju Dawar was carrying silver colour suitcase when he was spotted coming from the side of Exit Gate No. 2 and smack was recovered from the same and at the same time it is also proved that said suitcase was bearing baggage tag which tallied with baggage stub on the Air Ticket of accused Mohd Masoom. 54 The other incriminating circumstance against the accused persons is that though accused Raju Dawar did not return to his shop or to his house on that day but no effort was made by DW 1 or any of his family members to FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.110 111 search for him, despite the fact that he had accompanied a stranger in the vehicle of PW 12 Praveen Kumar, a friend of DW 1. As per his testimony he had given a telephone call to PW 12 at about 10.:30pm to enquire from him if his brother Raju Dawar had visited him to return his vehicle and was informed that he had not returned the vehicle of PW 12. Then he had visited the house of his brother at 2:00am i e on the intervening night of 26/27.11.09 but was found locked and as per his testimony thereafter he came back to his house and next day as usual went to his shop at 9:30am. Admittedly, the accused Raju Dawar was possessing two mobile phones which were recovered from his possession during his personal search conducted vide personal search memo Ex. PW 11/C but it has not been stated by DW 1 that he ever made any effort to contact his brother on his mobile phones. No explanation has been given by DW 1 as to why he did not make any effort to contact him on his mobile phone. It is also on record that on that night he neither visited the IGI Airport in search of his brother nor he made any report with the police that he had FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.111 112 accompanied one Mohd Majid to the IGI Airport to receive the acquaintances of Mohd Majid who were to arrive by Ariana Afghan Airlines and went missing alongwith the car of PW 12. Here it is important to mention that PW 12 though in his chief examination has testified that at 10:30pm he had received a call from Kulwinder Dawar making enquiry about Raju Dawar and he told him that he had not visited him, however his said testimony appears to have been given in connivance with DW 1 as despite the fact that accused Raju Dawar had borrowed his vehicle and had not returned the same till late night and even his whereabouts were not known to his brother DW 1 Kulwinder Dawar but still he did not show any anxiety and concern and did not approach the police to lodge the report in this regard. PW 12 in his statement further stated that on the next day he came to know from Kulwinder Dawar that accused Raju Dawar was arrested in this case. DW 1 has testified that he came to know at about 5/ 5:15pm on 27.11.2009 about the arrest of his brother when he received a telephone call from the police. In such circumstances it is obvious that FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.112 113 PW 12 was informed by DW 1 about the arrest of accused Raju Dawar after 5:15pm and there is nothing on record that from 10:30pm on 26.11.09 till 5:15pm on 27.11.2009 he made any enquiry about accused Raju Dawar and his vehicle from any source or approach the police. It is also not on record that he ever approached the police to get his vehicle released after he came to know that accused Raju Dawar had been arrested. As per record, it is the police who had approached him and had recorded his statement U/s. 161 Cr PC on 28.11.09 and thereafter the vehicle was released to him on superdari vide superdginama Ex PW 12/A. It is also important to observe the conduct of DW 1 who did not visit IGI Airport or approach the police on the intervening night of 26/271109 as, as per his own statement he did not lodge any report with the police even on 27.11.09, though he claims to have visited the IGI Airport alongwith his partner namely Rajesh Kumar Sabharwal in search of his brother. However his such bald statement does not inspire credence, as the same does not find any corroboration from any corner and his partner Rajesh FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.113 114 Sabharwal has not been examined in defence to corroborate his testimony, Nothing has been brought on record in defence which prevented DW1 to lodge report with the police. It is stated by him in his chief examination itself that on the next day evening he discussed the matter with his parents to lodge missing report of his brother with the police but it has not been explained as to what was there to be discussed with the parents in the circumstances of the present case if infact the accused had gone alongwith Mohd Majid, who had visited the shop of DW 1 for the first time and had not even left his contact number or address and the accused went missing alongwith the car of PW 12, the natural conduct would have been that the matter was reported to the police at the earliest on the night of 26.11.009 itself and besides efforts should have been made to trace out the whereabouts of the accused by making call to him on his mobile phones. The causal approach adopted by DW 1 in making efforts to trace out his brother shows that he is a false witness and the defence is concocted. Moreover, DW 1 has admitted that he did not inform FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.114 115 all these facts to the police. Had there been any truth in these facts, he would have immediately informed the police about the same when he was informed about the arrest of his brother. At the same time it is also observed though there are five disclosure statements of accused Raju Dawar on record but in none of the disclosure statements he has taken the defence that he had gone to the IGI Airport alongwith Mohd Majid to receive his acquaintances who were to arrive from Afghanistan as Mohd Majid had told them that they would make purchases from their shop at Lajpat Nagar and that while he was standing outside Exit Gate No. 2 of Arrival Hall while Mohd Majid had gone inside and while he was conversing with some Afghani Nationals who had gone out of the Arrival Gate, he alongwith Afghani Nationals were apprehended by plain clothes police officials. It is for the first time the aforesaid defence has been taken on behalf of accused Raju Dawar while cross examination of PW 5 but the whole of the defence was not put to the witness and the defence that he was apprehended while he was talking to Afghani Nationals outside Exit Gate FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.115 116 No 2 of the Arrival Hall, by some persons in plain clothes and was removed in a car to some office after being blind folded and there he was falsely implicated in the present case was not put to any of the witnesses. It has come on record for the first time in his statement U/s. 313 Cr PC and appears to be after thought and concocted. All these circumstances prove that there was criminal conspiracy between both the accused persons to illegally export smack into India and accused Raju Dawar had gone to IGI Airport to receive the consignment brought by accused Mohd Masoom alongwith him from Kabul and that accused Raju Dawar was well aware of the fact that the suitcase Ex P2 which was brought by accused Mohd Masooom as his checked in baggage was containing smack. The argument of the defence counsel Sh Yogesh Saxena that baggage tag Ex P1 was planted on the suitcase Ex P2 as he had demonstrated in the court that it could be removed from the suitcase and reffixed thereon, is of no consequence. The Air ticket Ex. PW l3/A of accused Mohd Masoom recovered from his possession was found bearing the baggage stub which tallied FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.116 117 with the number of the baggage tag Ex P1 found affixed on the suitcase, so there is no question of the same being planted. Nodoubt, none of the prosecution witness deposed about affixation of baggage stub on the Air ticket Ex PW 13/A but the perusal of the seizure memo Ex PW 11/G vide which the passport and Air ticket of the accused were seized, it is found containing the number of the baggage stub ie 0002645, as the number of the ticket. This speaks of the ignorance of the IO and the other witnesses that they could not distinguish between the baggage stub affixed on the ticket and the ticket itself as they referred the number of the baggage stub as Air ticket number in the seizure memo Ex PW11/G. However, this ignorance on the part of the investigating officer is proved to be a bliss for the prosecution as the number of the baggage tag was mentioned in the seizure memo which was prepared at the spot itself and therefore it cannot be said to have been planted . 55 It is the argument of the defence counsel that accused Mohd Masoom had not brought any checked in baggage alongwith him. However, no evidence has been led to this effect FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.117 118 from the concerned Airlines. In view of the evidence led by the prosecution that accused Mohd Masoom arrived to IGI Airport via Ariana Afghan Airlines Flight and was spotted alongwith the accused Raju Dawar who was holding a sliver colour suitcase Ex. P2 in his hand and while they were about to sit in the Matiz Car Ex. P16 they were apprehended by the officials of the raiding party and at that time the suitcase was bearing the baggage tag Ex P1 the particulars of which tallied with the baggage stub affixed on Air ticket Ex PW 13/A, it is proved on record that the suitcase belonged to accused Mohd Masoom. Thus in view of the above discussion, the prosecution has proved beyond reasonable doubt that both the accused had entered into criminal conspiracy to bring smack into India from outside illegally, consequently accused Mohd Masoom had brought 7100grams of smack in the silver colour suitcase Ex.P2 which he handed over to accused Raju Dawar on his Arrival from Afghanistan and he had also brought alongwith him 510grams smack which were recovered from the pocket of his jacket Ex.P15 which he was wearing at the time of his FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.118 119 apprehension. Thus in these circumstances the accused Raju Dawar was also found in conscious possession of 7100grams of smack recovered from his suitcase Ex. P2 since it was brought into India by accused Mohd Masoom in furtherance of their criminal conspiracy. In these circumstances now the onus was on the accused Mohd Masoom to bring some evidence on record that the suitcase Ex.P2 was not his checked in baggage and he had not brought the same with him from Kabul. However, no evidence has been led by the defence to this effect nor any effort is made to do so.
56 Sec. 35 and Sec. 54 NDPS Act raises presumption with regard to the culpable mental state of the part of the accused and also place burden on the accused to rebut such presumption. However, the bare perusal of such provision clearly shows that presumption would operate only in the event of circumstances contained therein are fully satisfied, only then the legal burden would shift. With a view to bring within the purview of provisions of Sec. 54 NDPS Act, element of possession of the contraband is essential so as to FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.119 120 shift the burden on the accused. In the present case it has already been held above, that the prosecution has proved its case beyond reasonable doubt that both the accused in pursuance to their criminal conspiracy were found in conscious possession of smack and now the legal burden shifted upon the accused persons to rebut the said presumption. However, accused Mohd Masoom has not led any evidence in support of his defence and accused Raju Dawar though has led the defence evidence but in my opinion, it has failed to rebut the presumption raised against the accused persons. It is not only through the defence evidence that the presumption raised U/s. 35 & 54 NDPS Act which could be rebutted but this could be done through the cross examination of the prosecution witnesses as well but both the accused have failed to rebut the said presumption raised against them even through the cross examination of the prosecution witnesses.
57 It is the arguments of the defence counsel Sh Deepak Ghai as per his written submissions that in the rukka the colour of the contraband allegedly recovered from FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.120 121 the accused persons was of brown colour, whereas during the chief examination of PW 5 when the case property was produced, he testified that it was of light yellow/mustard colour. It is submitted that PW 9 ACP Rajender Bakshi gave the colour of the alleged recovered substance as white. It is submitted that the discrepancy in the colour of the alleged recovered substance shows that the case property was tampered and planted upon the accused. However, the aforesaid argument is of no consequence, as nodoubt in rukka the colour of the recovered substance is mentioned as brown, however during the examination in chief of PW 5 when the alleged substance was taken out from the sealed pulanda it was found to be of light yellow,mustard colour. The discrepancy in the colour of the recovered substance mentioned in rukka and in chief examination of PW 5 has been explained by the witness in his further chief examination, whereby he stated that the substance was recovered at night and at that time in the light it was appearing to be of light brown colour. Similarly, PW 9 nodoubt testified in his examinationinchief that the recovered FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.121 122 substance was of white colour but during his cross examination by Ld. Addl. PP for State he admitted that in his statement recorded by the IO on 27.11.09 colour of the substance was mentioned as brown and that his said statement is correct. He also clarified that due to inadvertence he had stated the colour of recovered substance as white instead of brown. Hence both these witnesses have explained as to what was the colour of the substance when it was recovered ie it was of brown colour and that it was due to light since the recovery was effected at night time, the colour was appearing to be light brown. Thus, in these circumstances, the argument of the defence counsel that the case property was tampered with is not sustainable. 58 The other argument taken by Sh Deepak Ghai, counsel for accused Raju Dawar vide written submissions is to the effect that seal after use was given to PW 6 Inspt Naresh Solanki by PW 5 Inspt. Sunil Kumar but no memo was prepared in this regard and that even PW 8 SHO /Inspt Akshay Kumar had also kept his seal with him after use and as such chances of tampering of the case property FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.122 123 and the samples cannot be ruled out and that during the evidence different colour of contraband has been given by the witnesses and as such the tampering of the case property cannot be ruled out. It is submitted that the colour of the alleged recovered substance is mentioned as brown in the rukka as well as during the chief examination of PW 5 but when the case property was opened the colour of contraband appeared to be light yellow/ mustard colour and that even PW 9 ACP Rajender Bakshi has given the colour of alleged recovered substance as white which leads to the inference that the case property was tampered and planted upon the accused. However, again I find no merits in the aforesaid argument of the defence counsel, firstly for the reason that the seal was not handed over to PW 6 SI Naresh Solanki but as per the testimony of PW 5 who is the seizing officer, the seal after use was handed over to SI Sharat Chandra i e PW 10. During cross examination to PW 5 no suggestion was given that the case property could be tampered by PW 10 SI Sharat Chandra. PW 10 SI Sharat Chandra testified in his chief examination FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.123 124 that the seal after use was handed over to him by Inspt Sunil. During entire lengthy cross examination this witness was not suggested that he had misused the seal for tampering of the case property. Similarly, PW 8 Inspt Akshay Kumar, the then SHO who had counter sealed the pulandas containing the case property and the samples, though admitted that he had kept his seal with him after use but he denied the suggestion that no sealed pulanda was produced before him or he never deposited them in the malkhana or that entires in register No. 19 were fabricated to make out a false case against the accused persons or that he had tampered the case property in connivance with Inspt Sunil and SI Naresh. Here it is important to mention that it is already observed above that the seal after use by PW 5 the seizing officer was handed over to SI Sharat Chandra examined as PW 10 and not to SI Naresh Solanki examined as PW 6 and therefore even if it was suggested by the defence counsel to PW 8 that he had tampered with the case property in connivance with PW 5 and 6, in my opinion, it was not possible since the seal with which FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.124 125 the case property was initially sealed by PW 5 was in the custody of SI Sharat Chandra who was not even suggested by the defence counsel in cross examination that at any point of time the seal was taken back by PW 5 or PW 6 who could tamper the case property in connivance with PW 8. At the same time it is also observed that the MHC(M) HC Chand Ram examined as PW2 in whose custody the case property and the sample pulandas as well the other articles were deposited by PW 8 Inspt Akshay Kumar on the intervening night of 26/271109 has not been cross examined at all. As per his testimony 7 pulandas bearing Mark S1, S2,S3,S4 and R1 and one sealed pulanda which was not bearing any mark, one suitcase in sealed condition, FSL form, and three carbon copies of different seizure memos were deposited in the malkhana in his custody by PW 8 Inspt. Akshay Kumar, regarding which he made entry at serial No. 531 in register No.19, the photocopy of which is proved as Ex PW 2/B and the original entry in the register was seen and returned by the Court. No suggestion was given to the witness that these articles were never FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.125 126 deposited in his custody by PW 8 Inspt Akshay Kumar or that the entry made in register No. 19 to this effect was false. In such circumstances, the contention of the defence counsel that the case property was tampered with is not substantiated by any evidence on record. PW 2 categorically testified in his chief examination that the case property remained intact till it remained in his possession and thus the prosecution has proved that there was no tampering of the case property as alleged by the defence counsel.
59 It is the argument of the defence counsel Sh Deepak Ghai, counsel for accused Raju Dawar that the entries in the log book Ex.PW 3/A with regard to the use of the official vehicle bearing No. DL 6 CJ 0517 i e Qualis are fake as therein it is mentioned that on 26.11.2009 the vehicle was used for going to the places ie ISC to Lajpat Nagar to Airport to Nehru Place to Airport to Bhogal to Nehru Place to ISC to Patiala House, whereas it is not the case of the prosecution that on that day the vehicle had gone to Patiala House court at any point of time. However, in my opinion, the aforesaid FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.126 127 argument pointing out discrepancy in the case of the prosecution is of no consequence, particularly, when accused Raju Dawar himself has admitted that he was apprehended by the police official at IGI Airport, though he claims that they were in plain clothes and he came to know lateron that they were police officials. In these circumstances it is obvious that police officials had gone to the IGI Airport in some vehicle from their office of Crime Branch and it is of no consequence whether they travelled by Qualis or some other vehicle. At the same time, there is no reason as to why the police officials would make a false statement with regard to the use of the particular vehicle on that day. The record speaks that no suggestion was given to PW 5 Inspt Sunil Kumar or to any other witness that some of the members of the raiding party had not travelled in Qualis from the office of ISC to Lajpat Nagar and then following the Matiz car of accused to IGI Airport. No suggestion was given to PW 5 or even to PW 2 who produced the log book that the entires contained therein were fabricated. PW 5 in his cross examination dated: FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.127 128
2.5.2011 has categorically denied that no official vehicle was used in the present case. Thus any such discrepancy pointed out by the defence counsel in the log book does not go to the root of the case in view of the admission of the accused himself that he was apprehended by the police officials in the IGI Airport.
60 The other argument of the defence counsel is that it is the claim of the prosecution that the Matiz car of the accused remained parked in front of Exit Gate No 2 of Arrival Hall from 12:30pm to 7:30 pm which is not believable, as the area in front of Exit Gate No 2 is not parking area and no one is allowed to park vehicle for such a long time and that traffic police is always there to prevent such illegal parking. It is submitted that it cannot be believed that no one objected to the parking of the vehicle at such place. To this argument the answer is given in the testimony of PW 5 who categorically stated in his cross examination that the vehicle of the accused was not parked in the official parking but in a lane where many other vehicles were already parked. He also stated that FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.128 129 lane was not used for the traffic movement. He denied that this lane was VIP Area and stated that VIP Area was much ahead which is near Arrival Gate No. 2. To this effect, PW 5 has proved the site plan Ex PW 5/G on record and as per the same the vehicle of the accused was parked at point X. No evidence has been led by the defence to rebut the same. 61 It is also the argument of the counsel for both the accused that in the present case, though separate recovery of smack was effected from the possession of both the accused, only one FSL form was prepared. To my mind, there is no illegality in preparing one FSL form, though it may be termed as irregularity for which no benefit can be given to the accused persons.
62 It is also the argument of the counsel for the accused persons that there is noncompliance of the provisions of Sec. 52(3) of the NDPS Act, wherein it is mentioned that every person arrested and articles seized under Sub Sec. 2 of Sec. 41, Sec. 42 Sec. 43 or Sec. 44 shall be forwarded without unnecessary delay to the Officer Incharge of the FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.129 130 nearest PS or to the officer empowered U/s. 53 of the Act. It is contended that the nearest PS was IGI Airport and therefore the accused persons and the articles seized at the spot ought have been forwarded without delay to the PS IGI Airport. In the present case admittedly, there is non compliance of the provisions of Sec. 52 NDPS Act but it has not been explained by the defence as to whether any prejudice was caused to the accused persons on account of such noncompliance. Moreover, it is held by the Apex Court in the case of Gurbax Singh Vs State of Haryana , reported in AIR 2001 SC Page 1002 that the provisions of Sec. 52 and Sec. 57 of the Act are directory and violations of these provisions would not ipso facto violate the trial or conviction. Hence, non compliance of the provisions of Sec. 52 of the Act is not fatal to the prosecution in the facts and circumstances of the case.
63 So far the provisions of Sec. 55 of the Act are concerned, they have been duly complied with. PW 8 Insp Akshay Kumar, the then SHO PS Crime Branch, Nehru Place categorically testified that on the intervening night of FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.130 131 26/27.11.09 at about 1:00am he was present in the PS when SI Naresh from ISC Crime Branch came to his office, who after handing over rukka to duty officer for registration of the FIR had produced 8 parcels before him which consisted of Mark R, R1, S1, S2, S3 , S4, one sealed suitcase, one sealed jacket, three carbon copies of seizure memo and one FSL form. He further stated that all the above parcels and FSL form were bearing the seal of SK IIIS. He counter sealed all the above parcels and the FSL form with his seal of AK, mentioned the FIR number 199/09 on all the parcels, FSL form and carbon copies of the seizure memos and that FIR No he had asked from the Duty Officer on intercom. Thereafter he called the MHC(M) Chand Ram alongwith register No. 19 and handed over all the sealed parcels to him in intact condition alongwith the carbon copies of the seizure memos and FSL form, regarding which entry Ex PW 2/B was made in the register No. 19 bearing his signature at point X. He further proved DD No 15 Ex. PW 8/A bearing his signature at point A in this regard. The aforesaid testimony of PW 8 finds corroboration from PW FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.131 132 2 HC Chand Ram could not be rebutted despite lengthy cross examination. Hence the compliance of provisions of Sec. 55 NDPS Act has been duly proved.
64 Similarly, the provisions of Sec. 57 NDPS has also been complied with which fact is proved vide the testimony of PW 13 SI Naresh Sangwan, the IO of the case and PW 9 Sh Rajender Bakshi, the then ACP. The intimation U/s 57 NDPS Act is proved on record as Ex PW 9/B and the copy of the same is Ex. PW 13/J. Vide the testimony of PW 1, the then SO to PW 9 ACP Rajender Bakshi it is proved that the said report was received in the office of ACP on 27.11.09 and relevant entry was made in the DD register at serial No. 897 Ex. PW 1/B. 65 Now it is to be seen as to whether the recovered substance from both the accused persons was smack. To this effect, the prosecution has examined PW 14 Dr. Madhulika Sharma, Asstt. Director FSL Rohini who had examined two sealed parcels Mark S 1 and S3 received in the office of FSL Rohini alongwith the forwarding letter ie form FSL Ex. PX, both the parcels sealed with the seal of SK FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.132 133 IIIS and AK and were tallied with the specimen seal on the FSL form. She testified that the contents of both the parcels were examined by her using chemical test chromatography and instrumental methods and the same were found containing Caffeine, Acetylcodeine, Monoacetylmorphine and Diacetylmorphine. However, the percentage of Diacetylmorphine were found to be 40.4% and 44.4% in exhibits S l and S 3 respectively. She proved her details report as Ex PW 13/E. She has not been cross examined on behalf of either of the accused. Thus the report Ex. PW 13/E has remained undisputed, whereby it is proved by the prosecution that the samples drawn from the recovered substance were of smack.
66 In view of the above discussion,the prosecution has duly proved that accused Mohd Masoom in pursuance to the criminal conspiracy with accused Raju Dawar had illegally brought 7610grams of smack into India, out of which 7100grams was recovered from the suitcase Ex. P2 being carried by the accused Raju Dawar and 510grams was FIR No. 199/09 State Vs Mohd Masoom & Ors. Page No.133 134 recovered from the pocket of jacket of accused Mohd Masoom. Thus both the accused are convicted for the offences punishable U/s.29 and 21 r/w Sec. 23 NDPS Act.
ANNOUNCED IN OPEN (RAVINDER KAUR)
COURT TOTAY SPECIAL JUDGE (NDPS)/
DATED: 30.06.2011 ASJ/DWARKA//ND
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