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Delhi District Court

-:1:- State vs . Dilshad on 29 November, 2007

                                                          SC No.99/06
                              -:1:-                   State Vs. Dilshad


IN THE COURT OF A.K. MENDIRATTA : ADDL. SESSIONS
            JUDGE : ROHINI COURTS : DELHI

SC No: 153/05

STATE              VS.       DILSHAD
                             S/O PESAKAR
                             R/O H. NO. 380 HMP
                             RAGHUBIR NAGAR,
                             DELHI

                             FIR NO:551/05
                             PS: RAJOURI GARDEN
                             U/S 21/61/85 NDPS Act


         Arguments heard on            : 29.11.2007
         Judgment pronounced on        : 29.11.2007


JUDGMENT:

BRIEF STATEMENT OF FACTS:

As per the case of the prosecution, on 15.06.2005 on the basis of secret information, accused alongwith four other persons was apprehended near Baba Tikriwala Mandir, beneath Raja Garden Flyover within the jurisdiction of PS Rajouri Garden. On search of the accused , 10 gms of smack was recovered from his Contd........

-:2:- State Vs. Dilshad possession. A knife is also alleged to have been recovered from the accused, in respect of which separate proceedings were conducted. Accused was formally arrested. Case property was forwarded for examination and charge sheet was presented after investigation.

Charge against the accused was framed u/s 21 of the NDPS Act to which he pleaded not guilty and claimed trial.

2. Prosecution in support of its case, examined seven witnesses.

PW-4 Inspector V.K. Dham, PW-5 Ct Sanjiv Kumar & PW-6 SI Puran Chand are the material witnesses of recovery and were members of the raiding party which was constituted to apprehend the accused.

PW-4 Inspector V.K. Dham deposed that on 15.06.2005 he was posted as SHO, PS Rajouri Garden and at about 9.30 pm Contd........

                                -:3:-                  State Vs. Dilshad


received a secret information       in the Police Station that 4/5

miscreants of UP would assemble at Baba Tikriwala Temple under Flyover with intention to commit dacoity and the miscreants were armed with ammunition. Raiding party comprising of SI Puran Chand Yadav, SI Pawan Kumar, Ct Sanjiv Kumar, HC Dilbagh Singh, Ct. Jai Prakash was constituted and left alongwith secret informer to assemble near Baba Tikriwala Mandir. At about 10.30 pm, HC Dilbagh Singh was sent as shadow witness with the directions that after hearing conversation he should give a signal to Inspector V.K. Dham. At about 10.50 pm , HC Dilbagh Singh signaled to the member of raiding party and five persons were apprehended including accused Dilshad. SI Puran Chand took search of the accused and smack contained in polythene was recovered from the left pocket. Further a knife was recovered from the right pocket of the accused. Separate proceedings under Arms Act were conducted by HC Dilbagh Singh. On weighing, the smack amounted to 10 gms out of which 5 gm was taken out as Contd........

-:4:- State Vs. Dilshad sample. Sample of the recovered smack and the remaining smack was affixed with the seal of PY. The same was further affixed with the seal of VKD. FSL form was filled up on the spot and the case property was seized by the IO. He further deposed that he took the case property and form FSL alongwith seizure memo and deposited the case property in Malkhana on return to Police Station. The smack was identified as EX.P-1 and remaining smack as EX.P-2. During the cross examination , he deposed that 3/4 persons were asked to join the raiding party. Suggestions regarding non recovery of smack and plantation were denied.

PW-5 Ct. Sanjiv Kumar also deposed on similar lines. He further proved notice u/s 50 NDPS Act as EX.PW5/A. He also stated that accused did not wish to call any Gazetted Officer/Magistrate. The seizure memo vide which the case property was taken into possession was proved as EX.PW5/B. During cross examination, he stated that departure entry was made before leaving the Police Station. However, he did not Contd........

-:5:- State Vs. Dilshad remember the DD Number. Scale and sealing material were stated to be with the IO in his bag. The raiding party is further stated to have remained on the spot for about 4 hours.

PW-6 SI Puran Chand also deposed on lines of PW-4 and PW-5. He further proved reply given by the accused in response of notice u/s 50 NDPS as EX.PW6/A. He also deposed that rukka EX.PW6/B was forwarded through Ct. Sanjiv , who returned back to the spot alonwith SI Pawan Kumar who conducted the subsequent investigation. The FSL report was proved as EX.PW6/C. PW-2 SI Pawan Kumar stated that accused was arrested as per memo EX.PW2/A. The personal search of accused was conducted vide memo EX.PW2/B. Site Plan was proved as EX.PW2/C. He also stated that report u/s 57 NDPS Act (EX.PW2/D) was forwarded to ACP and the samples were sent to FSL. This witness was not cross examined on behalf of accused.

PW-1 HC Sitar Singh deposed that report u/s 50 NDPS Contd........

-:6:- State Vs. Dilshad Act was received as per serial number 1883 and the copy of entry was proved as EX.PW1/A. The original report was exhibited as EX.PW1/B. PW-3 HC Khushi Ram, Duty Officer proved the copy of FIR as EX.PW3/A and endorsement made on the rukka as EX.PW3/B. PW-7 Constable Vijay proved the entries made in malkhana register and copy of Road Certificate as EX.PW7/1 & EX.PW7/B.

3. I have heard the Counsel for the accused, Ld. Additional PP for the State and perused the record carefully.

4. Perusal of record indicates that the testimony of PW-4 Inspector V.K. Dham has remained uncontroverted on material points. The only question put to the witness in the cross examination was regarding non joining of public witnesses. Further Contd........

-:7:- State Vs. Dilshad no contradictions have come up in testimonies of PW-5 & PW-6. The only point which requires consideration is whether the testimony of the witnesses can be discredited merely on the ground of non joining of public witnesses. To my mind when the public witnesses are not joined, the testimony is only required to be considered with caution. There is no absolute rule of law that the recovery becomes tainted or un acceptable merely on the ground of non joining of public witness. In the present day circumstances, it is a matter of fact that the witnesses from the public are not forthcoming to join criminal proceedings. Considering the facts and circumstances I am of the view that the non joining of public witness is not fatal to the case of prosecution as the testimony of the witnesses is reliable and no contradictions have come on record.

No other contention has been raised before me. Considering the facts and circumstances I am of the considered view that the recovery has been proved beyond reasonable doubt.

Contd........

-:8:- State Vs. Dilshad The accused is accordingly convicted u/s 21 NDPS Act. Announced in the open court on (A.K. MENDIRATTA) th this 29 day of November, 2007 ADDITIONAL SESSIONS JUDGE ROHINI COURTS: DELHI Contd........

-:9:- State Vs. Dilshad IN THE COURT OF A.K. MENDIRATTA : ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI SC No: 153/05 STATE VS. DILSHAD S/O PESAKAR R/O H. NO. 380 HMP RAGHUBIR NAGAR, DELHI FIR NO:551/05 PS: RAJOURI GARDEN U/S 21/61/85 NDPS Act ORDER ON POINT OF SENTENCE:

It has been urged on behalf of accused/convict that he remained in custody from 25.06.2005 till 26.10.2005 during the course of trial. It is further submitted that the quantity recovered is small and the diacetylmorphine material was observed to be 12.1gm in the recovered smack and effective recovery is stated to be only about 1.21 gm. Considering the facts and circumstances and that the accused remained in custody for over four months, he is sentenced to the imprisonment already undergone. Benefit u/s 428 Cr.P.C. be given to the accused. Copy of judgement alongwith Contd........

-:10:- State Vs. Dilshad order on sentence be supplied to the accused free of cost. File be consigned to record room.

Announced in the open court on (A.K. MENDIRATTA) th this 29 day of November, 2007 ADDITIONAL SESSIONS JUDGE ROHINI COURTS: DELHI Contd........