Delhi District Court
Absence Of Independent Corroboration ... vs . State Of on 28 August, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.33/13
FIR No.45/13
PS Kamla Market
State
Versus
Gunesh Kumar
S/o Late Sh. Mohan Lal,
st
R/o B200, 1 Floor,
Yojana Vihar, Delhi. .......Accused
Date of institution : 02.05.2013
Date of Judgment : 26.08.2014
J U D G M E N T
On 19.03.2013, at about 3.40 p.m., Gunesh Kumar (accused) was apprehended by ASI Roshan Singh alongwith other members, on the basis of secret information and at the pointing out of secret informer, by the side of a public lavatory, in the area of Pul Paharganj, Ajmeri Gate, within the jurisdiction of PS Kamla Market.
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2. Case of prosecution is that the accused was found carrying 1 kilogram and 600 grams of charas (cannabis) in a bag. Secret information was given to ASI Roshan Singh on 19.03.2013 while he was patrolling in the area. The information was that a person aged about 5052 years having white hairs, wearing white & grey colour shirt and grey colour pant, possessing huge quantity of charas, would come by the side of public lavatory, Pul Paharganj, Ajmeri Gate, for its delivery to someone after sometime.
Thereupon, ASI Roshan Singh reduced the information into writing and sent the same to SHO through Ct. Yogesh. He also apprised his companions of the secret information. The information came to be recorded vide DD no. 24A at 3.04 p.m. When Ct. Yogesh returned to the spot from the police station and told that SHO had asked for immediate necessary action, ASI Roshan Singh tried to join persons from the public, but no one came forward. It was thereafter that ASI Roshan Singh constituted raiding party including the secret informer and the party took positions.
At about 3.40 p.m., accused was seen coming from the side of Ajmeri Gate. He was carrying a red colour bag in his right hand. He came and stood by the side of the public lavatory. On the pointing out of secret informer ASI Roshan Singh apprehended the accused.
The secret informer left the spot, after pointing out towards the accused. 2 Case of prosecution is that notice U/s 50 of the Act was served upon the accused. He was also offered personal search of members of the party i.e. the police officials. When the accused neither exercised his legal right U/s 50 of the Act nor conducted search of person of police official, ASI Roshan Singh conducted cursory search of the person of the accused but nothing incriminating could be recovered on his personal search. It was thereafter that contents of the bag recovered from him were checked. These were found to be charas (cannabis) in the form of black colour sticks of different types.
When weighed, charas was found to be 1 kg 600 gms. Two samples, each of 250 gms, were taken from the lot, turned into two separate parcels, given Mark 1A & 1B, and sealed with the seal bearing impression 'SK'. The residue was kept in yellow colour polythene, then placed in recovered bag and turned into cloth parcel. It was given mark '1' and sealed with the aforesaid seal bearing impression 'SK'.
ASI Roshan Singh filled in FSL form and sealed all the aforesaid parcels with seal bearing impression SK and also affixed its impression on the FSL form. After handing over the seal to Ct. Yogesh, the case property was seized vide a seizure memo.
On the basis of rukka sent from the spot by ASI Roshan Singh, through Ct. Yogesh, present case came to be registered at the police station.
It may be mentioned that at the time of despatch of rukka, ASI Roshan 3 Singh also sent to police station, through Ct. Yogesh, the abovereferred to parcels, FSL form and copy of seizure memo, with directions that the same were to be produced before the SHO. On reaching the police station Ct. Yogesh produced these items, sealed parcels, copy of seizure memo and FSL form before Inspector Parmod Joshi.
Inspector Pramod Joshi checked the seals and went through the contents of the documents. He then affixed his seal bearing impression 'PJ' on the aforesaid parcels. He also affixed impression of the seal on the FSL form. Thereafter, the SHO deposited these items with the MHC(M). In this regard, he recorded DD no.28A.
After registration of the case, SI Ajay Singh accompanied by Ct. Yogesh reached the spot. The SI collected from ASI Roshan Singh copy of notice U/s 50 of the Act and original seizure memo. When accused was produced before him, SI Ajay made inquiries from him. The SI also prepared rough site plan of the place of arrest and recovery. Personal search of the accused led to recovery of personal search items including notice U/s 50 of the Act.
Accused was then got medically examined from LNJP Hospital. On return to the police station, SI Ajay deposited personal search items with MHC(M).
It is also case of prosecution that report U/s 57 of the Act presented to Inspector Parmod Joshi came to be forwarded to the office of ACP. On 4 02.04.2013, one sealed sample parcel Mark 1A and FSL form were handed over to Ct. Satya Pal, who deposited the same on the same day at FSL Rohini. At FSL, contents of the sample parcel were analysed by Dr. Kanak Lata Verma, Sr. Scientific Officer and she observed that same were charas (cannabis).
3. On completion of investigation, challan was put in court. Copies of challan, accompanying documents and that of echallan were supplied to the accused free of costs U/s 207 Cr.P.C.
Charge
4. Prima facie case having been made out, charge for an offence U/s 20 of the Act was framed against accused on 23.07.2013, to which he pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following 13 witnesses: PW1 HC Nirpal Singh To prove recording of FIR and other DD . PW2 Ct. Sachin Kumar To prove receipt of report U/s 57 of the Act at the office of ACP.
PW3 Ct. Ravinder Bhati To prove recording of DD Ex.PW3/A regarding return of Ct. Satya Pal at the police station after his having deposited sealed sample at FSL Rohini.
5 PW4 WCt. Sarita To prove departure entry of Ct. Satya Pal for FSL on 02.04.2013 for deposit of sample parcel and documents.
PW5 HC Rati Ram, concerned To prove entries recorded by him in MHC(M) register no.19 and in the road certificate book.
PW6 Ct. Satya Pal To prove deposit of sample parcel, FSL form and road certificate at FSL Rohini on 02.04.2013.
PW7 SI Ajay Singh The second Investigating Officer.
PW8 Inspector Pramod Joshi The concerned SHO.
PW9 HC Ram Kesh To prove recording of DD no.24A.
PW10 Ct. Yogesh Member of the raiding party which
apprehended the accused.
PW11 HC Sailesh Kumar Another witness to arrest and recovery.
PW12 ASI Roshan Singh First Investigating Officer.
PW13 Dr. Kanak Lata Verma The expert witness.
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused has denied all the incriminating circumstances, appearing in evidence against him and claimed false implication.
Plea of the accused reads as under : "I was not apprised of any such right or served with any such notice.
Actually, 19.03.2013, at 11.45 am ASI Roshan Singh alone came in civil dress to my shop which is situated at 26, Ajmere Gate, Delhi. My brothers Mukesh Kumar and Rakesh Kumar were present at the shop at that time. I may mention that for the last 34 years I have 6 been doing business as a builder. ASI Roshan Singh demanded money from me. I told ASI Roshan Singh that money would be paid to the person to whom it is required to be paid. During those days, I was not having good business of property dealing. Verbal wrangle took place between me and ASI Roshan Singh.
Thereupon, ASI Roshan Singh asked that one of us should accompany him to the police station. Accordingly, I accompanied ASI Roshan Singh to PS Kamla Market. Again said, ASI Roshan Singh forcibly took me along. There he produced me before the SHO. The SHO did not intervene. Thereafter ASI Roshan Singh caught hold of me and assaulted while abusing me.
ASI Roshan Singh again demanded money from me. Ultimately, he threatened me with false implication in case under Section 376 IPC.
That is how, I have been falsely implicated in this case planting recovery on me.
I was carrying Rs.3270/ and a mobile phone. I was also carrying a gold chain. ASI Roshan Singh removed and kept the same with him. Police obtained my signatures on some blank papers at the police station."
In defence accused has examined DW1 Sh. Mukesh Kumar, his elder brother and DW2 Sh. Javed, a builder.
Arguments heard. File perused.
Receipt of secret information
7. The first contention raised by learned defence counsel is that this is a case where, as per prosecution version, secret informer came and passed on secret information to ASI Roshan Singh, who was not in uniform and rather in civil dress and bearing no name plate. The submission is that in the given circumstances, it is no believable that secret informer would have come, 7 contacted ASI Roshan Singh and passed on secret information.
It has also been submitted that herein the secret informer is alleged to have stayed with the party for sometime after apprehension of the accused and as such the Investigating Officer should have cited him as a witness. In support of his contention, learned counsel has referred to decision in Peeraswami v. State of NCT of Delhi 2007 (2) JCC (Narcotics) 80.
8. As noticed above, it is case of the prosecution that accused was apprehended on the basis of the secret information received by ASI Roshan Singh while he was patrolling in the company of two others.
ASI Roshan Singh has stated in his cross examination that he was not wearing name plate.
Learned Addl. PP has submitted that secret informers know the police officials/police officers and that is why secret informers can pass on secret information to any such official/officer even if he is not wearing name plate or is in civil clothes, and as such there was nothing improbable when the secret informer went to the ASI Roshan Singh who was not wearing name plate.
Had the secret informer not known ASI Roshan Singh, he would not have gone to him and passed on secret information. This Court finds merit in the submission put forth by learned Addl. PP. Even if ASI Roshan Singh was not wearing name plate on that date, it does not mean that secret informer did not know him.
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9. As regards second limb of the argument, it is in cross examination of ASI Roshan Singh that the accused came and stood by the side of toilet for about 23 minutes and secret informer left the police party 24 minutes after arrival of the accused, having pointed out towards him. From this statement of ASI Roshan Singh, it cannot be said that the secret informer went in front of the accused or that accused and secret informer came to face to face. Rather, it is available from the statements of prosecution witnesses that the secret informer pointed out the accused while the accused was standing by the side of toilet, whereas the ASI Roshan Singh and the secret informer were present towards Ajmere Gate crossing. When there is nothing in the prosecution evidence that the secret informer and the accused came in front of each other and then he pointed out towards the accused, there is no merit on the contention of the learned defence counsel that the person who provided information was actually a witness and not a secret informer. So, decision Peeraswami's case (supra) does not help the accused.
Nonjoining of Independent witnesses
10. The second contention raised by learned defence counsel is that this is a case where no person from the public was associated by the ASI Roshan Singh despite ample opportunity, which creates doubt in the prosecution story. In support of his contention, learned counsel has referred to decision in Rajiv Kumar v. State 1992 JCC 255.
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As per prosecution version, secret information was received by SI Roshan Singh. Same was reduced to writing and communicated to the SHO through Ct. Yogesh. Ct. Yogesh returned to the spot after having informed the SHO.
According to P W12 ASI Roshan Singh, he tried to join 45 passers by but no one came forward. Thereafter, he constituted a raiding party consisting of himself HC Shailesh, Ct. Yogesh and the secret informer. According to the witness, because of scarcity of time, he could not prepare any notice for being served upon those passersby for nonjoining the party.
Secret information was received at about 2.40 pm. As per contents of secret information as contained in Ex PW6/A, the suspect was expected to reach by the side of public lavatory, Pul Pahar Ganj "after sometime". This fact goes to show that the ASI Roshan Singh had not much time to proceed against the passersby for nonjoining the party.
Raiding party was constituted immediately after Ct. Yogesh returned from the police station with the direction from the SHO for necessary action. Accused came from the side of Ajmere Gate, at about 3.40 pm. These facts stand recorded in the rukka Ex PW12/A despatched from the spot at 5.30 pm. FIR Ex PW1/A came to be recorded at PS Kamla Market at 5.40 pm. Prompt recording of the FIR rules out possibility of deliberations or consultations regarding above version narrated by PW12.
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Een otherwise on the point of evidentiary value of police officials in absence of independent corroboration in the case of Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, Hon'ble Apex Court has observed as under: "The submission that the evidence of the official witnesses cannot be relied upon as their testimony has not been corroborated by any independent witness cannot be accepted. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. It may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence." When there is no corroboration from independent source, this Court proceeds to discuss evidence led by the prosecution regarding proceedings conducted during investigation, while keeping in view the rule of prudence to scrutinize the statements of the police officials with more care and caution.
Compliance with provisions of Section 50 of the Act
11. Learned defence counsel has referred to notice under Section 50 of the Act, said to have been served upon the accused by ASI Roshan Singh at the spot before conducting his personal search, and pointed out that from a bare 11 perusal of this document, having regard to the pattern of writing, it can safely be said that last sentence of this document "this is your legal right" has been inserted subsequently.
As regards refusal "on the part of accused", learned defence counsel has submitted that this is in routine language used by the police in suchlike cases and it can be said that accused was made to write down this refusal on a blank paper.
PW12 ASI Roshan Singh has deposed the manner in which he apprised the accused of his legal right available under Section 50 of the Act. According to PW12, he apprised the accused that he could conduct their personal search. He further apprised him (accused) that he could be taken to Gazetted Officer or Magistrate for the purposes of his search or that Gazetted Officer or Magistrate could be called there for this purpose. In this regard, he served upon him, notice under Section 50 of the Act.
Original notice served upon the accused is Ex PX. It was delivered to the accused against receipt. Copy of the notice prepared in carbon process is Ex PW7/F. Underneath the notice prepared in carbon process is refusal of the accused in original. Notice and the refusal bear attestation of HC Shailesh and Ct. Yogesh.
PW10 Ct. Yogesh and PW11 HC Shailesh have also narrated the manner in which notice under Section 50 of the Act was served upon the 12 accused.
All the three PWs have deposed that the accused did not exercise the legal right available under Section 50 of the Act.
On comparison of the original notice Ex PX with copy prepared in carbon process, this Court finds that last sentence of the notice to the effect that it was legal right of the accused, has not been inserted later on and rather, it came to be written at the time of execution of notice.
Accused told the police that he is an educated person. The refusal recorded below the notice Ex PW7/F is in the handwriting of the accused. It cannot be said that accused was compelled to write his refusal. Had he opted to exercise legal right, ASI Roshan Singh would have taken steps. Since the accused refused to exercise the right, there was no option with the ASI but to proceed further. This Court finds that this is a case of complete compliance with provisions of Section 50 of the Act.
Recovery of contraband
12. So far as recovery of contraband is concerned, case of prosecution is that accused was carrying a bag in his right hand. According to ASI Roshan Singh, bag was of slightly red colour with words "India Gate Basmati Mongra"
printed on each side of the bag. He checked the contents of the bag and it led to recovery of yellow colour polythene. This polythene was found containing black colour batties (sticks) of different types. Further according to PW12, he 13 smelt the contents and found that same were charas.
PW10 Ct. Yogesh has also deposed in line with statement of PW12 regarding identity of the bag, which the accused was carrying and also about recovery of charas from the yellow polythene taken out of the bag.
PW11 HC Shailesh Kumar also deposed about recovery of yellow colour polythene from the bag and that when its contents were checked, ASI Roshan Singh found black colour batties/sticks of different types, with transparent polythene type material wrapped around some of the them and that the ASI smelt the contents and found that same were charas.
It is true that PW12 ASI Roshan Singh stated in his cross examination that nothing was found wrapped around each batties/sticks, but it cannot be said to be in contradiction with the statement of PW11, as PW12 was not specifically questioned if all the sticks/batties were found wrapped with some polythene type material.
Recovery of contraband in the form of sticks/batties finds mentioned in the rukka EX PW12/C which came to be despatched from the spot without delay. In the recovery memo Ex PW7/E, the description of the contraband in the form of small and big size of sticks/batties stands specifically recorded.
This Court finds that all the three witnesses have made statements while supporting the prosecution version regarding the shape of the contraband recovered from the accused.
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Drawing of samples and sealing of the case property
13. According to PW12 ASI Roshan Singh, he drew two samples, each of 250 gms, from the lot, turned them into two separate parcels, given Mark 1A & 1B and then sealed these parcels with the seal bearing impression 'SK'. The residue was kept in yellow colour polythene, then placed in recovered bag and turned into cloth parcel. It was given mark '1'. This parcel was also sealed with the aforesaid seal bearing impression 'SK'.
According to ASI Roshan Singh he filled in FSL form and affixed impression of the seal on the FSL form. He then handed over the seal to Ct. Yogesh. Case property was seized vide seizure memo Ex PW7/A. Seizure memo Ex PW7/A bears attestation of HC Shailesh and Ct. Yogesh. The manner in which samples were drawn, the sample parcels were sealed and the third parcel containing the residue was prepared and sealed, find mention in this document.
PW10 Ct. Yogesh and PW11 HC Shailesh have supported statement of PW12 ASI Roshan Singh regarding the manner in which samples were drawn, turned into parcels and the residue was turned into a separate parcel and as to the impression of the seal used in sealing these three parcels. According to these PWs, impression of the seal was also affixed on the FSL form and after the seal was handed over to Ct. Yogesh. Both these witnesses have proved their attestation on Ex PW7/A. 15 PW12 ASI Roshan Singh stated in his cross examination that samples of 250 grams each were prepared after picking up sticks/batties at random from the lot. PW11 HC Shailesh when cross examined on this point, also supported PW12 by statng that samples were taken by picking up sticks at random.
In view of cogent and convincing evidence testimonies of two PWs, it cannot be said that the two PWs are discrepant on the manner in which samples were drawn. Therefore decisions in Basanti Rai v. State, 2012 (3) JCC [Narcotics] 138; Ritesh Chakravarti v. State of Madhya Pradesh, 2006 [3] JCC [Narcotics] 150; and Mr. Gaunter Edwin Kircher v. State of Goa, Secretariate Panaji Cr. A. N. 642 of 1991 decided by Hon'ble Apex Court on 16.03.1993 do not help the accused.
Possibility of tampering with the case property ruled out
14. As noticed above, case of prosecution is that the seal used at the spot by ASI Roshan Singh was bearing impression 'SK'.
Learned defence counsel submitted that no official/officer having impression of his seal SK was member of the team and that prosecution has failed to explain as to which officer this seal belongs to, so as to rule out possibility of tampering with the case property. In support of his contention, learned counsel has referred to decision in Safiullah v. State (Delhi Admn.) 1993 JCC 33 and Eze Val Okeke @ Val Eze v. Narcotic Control Bureau 16 2005 (1) C.C.Cases (HC) 72.
While appearing in Court as PW12, ASI Roshan Singh clearly stated that the seal which he used and was bearing impression SK was available in the IO bag which he had carried along from the police station while leaving for patrolling duty. He clearly stated that IO bag did not belong to him. It belonged to the police station and used to be carried by police officials at the time of departure for patrolling duty. PW12 explained that he had picked up the IO bag, containing the seal from the room of the Duty Officer. As regards his own seal bearing impression RS, PW12 clearly stated that on that date he had forgotten his seal at home. It is significant to note that PW1 HC Nirpal Singh is the concerned Duty Officer. He was not cross examined by learned defence counsel regarding practice of collection of IO bag from the room of the Duty Officer. While leading defence evidence no step was taken by the accused to call any officer from the police station to seek explanation as to whom seal bearing impression 'SK' belongs or to show that no seal bearing impression SK was available in the IO bag at the police station for being used by ASI Roshan Singh in respect of the case property. Therefore, this court does not find any merit in the contention raised by learned defence counsel that prosecution has failed to rule out possibility of tampering with the case property simply because there is no evidence as to whom the seal bearing impression SK, used by ASI Roshan Singh, belonged.
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It may be mentioned that rukka Ex PW12/A was prepared soon after the preparation of the seizure memo and despatched through Ct. Yogesh. All the material particulars regarding preparation of samples, affixing of seals bearing impression SK, filling in of FSL form, affixing of impression of the seal on FSL form delivery of seal to Ct. Yogesh, seizure of the case property vide a seizure memo find mention in this rukka ruling out possibility of deliberation or consultations.
Deposit with MHC(M) after being sealed by SHO
15. Learned defence counsel has submitted that in Ex PW5/A, it does not find mention that such and such items were deposited by Inspector Pramod Joshi with the MHC(M) on 19.03.2013, so as to suggest that the three parcels were bearing seals of SK and PJ and the FSL form was bearing impression of the same seals.
Prosecution has led cogent and convincing evidence by examining PW8 Inspector Pramod Joshi and PW5 HC Rati Ram, the concerned MHC(M) to prove that the case property came to be deposited with the MHC(M) by the Inspector with FSL form and copy of seizure memo.
It is case of prosecution that at the time of despatch of rukka, ASI Roshan Singh also sent to the police station, through Ct. Yogesh above referred to three parcels, FSL form and copy of seizure memo, with directions that the same were to be produced before the SHO. According to Ct. Yogesh, 18 on reaching the police station, he produced these items, sealed parcels, FSL Form and copy of seizure memo before Inspector Parmod Joshi.
It is in the statement of PW8 Inspector Pramod Joshi that on 19.03.2013 at 5.35 pm, Ct. Yogesh came to him with three sealed parcels bearing seals of "SK", FSL form and copy of seizure memo. FSL form was also bearing impression of seal SK. He checked the seals and went through the contents of the document and affixed his seal bearing impression PJ on the three parcels. He also affixed impression of the seal on the FSL form. Then, he handed over these items to the MHC(M), who recorded entry in register no. 19. According to the Inspector, he also recorded DD No. 28A Ex PW8/B. According to PW5 HC Rati Ram, the concerned MHC(M), on 19.03.2013 at about 5.45 pm, Inspector Pramod Joshi deposited with him three sealed parcels sealed with the seal of "SK" and "PJ", one FSL form and copy of seizure memo. In this regard, he has proved entry at Sl. No. 136 recorded in register no. 19, copy of which is Ex PW5/A. From the statements of PW5 and PW8, it stands established that parcels deposited by the Inspector with the MHC(M) were bearing seals "SK" and "PJ" and even the FSL form was bearing impression of these two seals. Therefore, even if the MHC(M) has not specified in column no. 4 separately the items deposited with him, the same does not adversely affect the case of prosecution.
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16. It is case of prosecution that on 02.04.2013, one sealed parcel mark 1A and FSL form were sent to FSL, Rohini through Ct. Satya Pal vide Road Certificate no. 27/21. In this regard, prosecution has relied on statement of PW5 HC Rati Ram, concerned MHC(M) and PW6 Ct. Satya Pal. Both these witnesses have deposed regarding despatch of sealed parcel bearing seals of SK and PJ, and one FSL form to FSL Rohini, vide Road Certificate no. 27/21.
Ex PW5/B is the copy of Road Certificate. It clearly depicts despatch of one sealed parcel bearing Mark 1A and sample of seals of SK and PJ. At Sl. No. 2 there is specific mention that one sample seal was of SK and other sample seal of PJ which were also sent to the FSL Rohini to Ct. Satya Pal.
Reference has been made by learned defence counsel to entries recorded in register no. 19 particularly at Sl. No. 36 Ex PW5/A to contend that this document does not indicate if any FSL form was also despatched to FSL while sending the sample parcel and the impression of the seals. In support of his contention, learned counsel has relied upon decision in Chameli Devi v. State 1993 JCC 293 and Anoop Joshi v. State 1992 JCC 329, Moolchand v. State 1993 JCC 234 and Jagdish Prashad v. State 1994 JCC 519.
It is true that in note from point A to A recorded by the MHC(M) regarding despatch of the case property to FSL Rohini, through Ct. Satya Pal on 02.04.2013, it does not find mention that FSL form was also handed over to the constable, but this fact does not adversely affect the case of prosecution in 20 view of the contents of Road Certificate Ex PW3/B, wherein it has been specifically recorded that specimen impressions of the seals SK and PJ were also sent to FSL Rohini alongwith the sealed parcel bearing seals of SK and PJ.
It is true that in his cross examination PW5 HC Rati Ram, the concerned MHC(M) stated that at the time the SHO delivered to him the case property, FSL form was not delivered to him, but a perusal of his statement would reveal that he has himself proved Ex PW5/B i.e. copy of Road Certificate and as per this document impression of seal SK and PJ was also handed over by him to Ct. Satya pal. In column no. 4 of entry Ex PW5/A recorded by the MHC(M) himself, there is specific mention of FSL form. He clearly stated in his chiefexamination that Inspector Pramod Joshi had deposited with him FSL form as well. Had no such FSL form been handed over to him, how could he so state in the very second sentence of his chief examination that Inspector Pramod Joshi deposited with him FSL form as well.
17. Learned Addl. PP was permitted to further examine the witness regarding the FSL form and his attention was drawn to portion A to A of Ex PW5/D where it stands recorded that FSL form was also delivered to the witness alongwith case property. Having been confronted with this statement, MHC(M) could not say about the correctness of his statement regarding factum of delivery of FSL form to him. From the record available, the MHC(M) 21 deliberately resiled from his previous statement recorded under Section 161 CrPC and also from the statement recorded in his chiefexamination, wherein he clearly stated regarding delivery of FSL form to him by the Inspector. Therefore, accused cannot taken any advantage from the statement of PW5 recorded in his cross examination wherein he stated that FSL form was not delivered to him.
Furthermore as per PW6 Ct. Satya Pal FSL form was part of the items given to him for delivery at FSL Rohini.
Even the report Ex PW7/D issued by the FSL would reveal that seals on the sealed parcel were found intact and tallied with the specimen seals. This again supports the prosecution version that FSL form was delivered by Inspector Pramod Joshi to the MHC(M) who handed over the same to Ct. Satya Pal and the constable deposited the same at the FSL on the same day with seals intact.
As noticed above, MHC(M) recorded entry Ex PW5/A in register no. 19 at the time Inspector Pramod Joshi deposited with him the case property.
While referring to the column no. 3 of register no. 19, learned defence counsel has pointed out that in this case only the name of Inspector Parmod Joshi finds mention in this column but without his signatures and that from absence of his signatures, it can be said that case property was not deposited with the MHC(M) by the Inspector particularly when another copy of the same 22 entry Ex PW5/DA bears signatures of the Inspector with his rubber stamp underneath.
The contention is that it appears that prosecution has manipulated document regarding deposit of the case property by the Inspector with the MHC(M).
In his crossexamination PW5 stated that in original register no. 19 (brought by him on that date i.e. 08.10.2013 when his statement was recorded in court) there was rubber stamp impression under the signatures of the SHO in this entry no. 136.
In his crossexamination, the witness was asked by learned defence counsel to place on record another copy of this entry depicting the rubber stamp impression under the signatures of the SHO and same was exhibited as Ex PW5/DA.
It is true that in Ex PW5/A i.e. copy of entry no. 136 does not contain signatures of the SHO or rubber stamp impression but the same does not adversely affect the case of prosecution, the reason being that MHC(M) could not ultimately tell as to on which date the rubber stamp, as visible in Ex PW5/DA, was affixed.
PW8 Inspector Pramod Joshi has fully supported the case of prosecution by stating about deposit of three sealed parcels, FSL form, and copy of seizure memo with the MHC(M) and that MHC(M) recorded entry in 23 register no. 19. He further deposed about recording of DD no. 8A i.e. Ex PW8/D in Daily Diary register. A perusal of Ex PW8/D would reveal that this entry was recorded by the SHO by PS Kamla Market at 5.55pm to the effect that he had sealed the three sealed parcels with his seal 'PJ' and affixed its impression on FSL form and deposited with the MHC(M) these parcels, FSL and copy of seizure memo (which were produced before him by Ct. Yogesh) with the recording of this DD entry.
It is significant to note that when the SHO appeared in Court as PW8, learned defence counsel did not question him on the aforesaid aspect i.e. the availability of his signatures and rubber stamp in Ex PW5/DA and the Ex PW5/A being without his signatures and rubber stamps. Had the witness been questioned, he would have furnished explanation. Therefore, in view of decision in State of U.P. v. Nahar Singh (Dead) and Others (1998) 3 Supreme Court Cases 561, no adverse inference can be drawn against the prosecution in this regard.
In view of the above discussion, this Court finds that decision in Chameli Devi's case (supra), Anoop Joshi's case (supra), Moolchand's case (supra) and Jagdish Prashad's case (supra) are of no avail to the accused.
Compliance with provisions of Section 57 of the Act
18. Ex PW2/A is the information under Section 57 of the Act purported to have been sent by SI Ajay Singh, second IO to the ACP, Kamla Market. 24
Learned defence counsel has submitted that in the first line from the top the FIR number has been written as "95" whereas the present case, came to be registered vide FIR No. 45; year of FIR as recorded in this line appears to have been written initially as 12 at 2 places; that in the subject digit '5' of Section '57' has been interpolated; that in the rubber stamp affixed on this document, second digit of the date of receipt of this information at the office of ACP appears to have been interpolated subsequently as to read it as 20.03.2013. So, it has been submitted that these interpolations create doubt in the version of prosecution regarding the manner in which accused has been apprehended and then falsely implicated in this case.
On the other hand, learned Addl. PP submits that these are clerical mistakes and do not adversely affect the case of prosecution particularly when report was sent to the office of ACP within time and the same was perused by the ACP on the same date.
Ex PW2/A is the information under Section 57 of the Act received at the office of ACP Kamla Market on 20.03.2013 vide entry at Sl. No. 2910 recorded in the diary register. According to PW2 on receipt, this report was put up before ACP Ram Kumar. The witness identified handwriting and signatures of the ACP at point A. In his crossexamination PW2 stated that he had affixed rubber stamp of the office of ACP on this document on its receipt at the office.
th Over writing on the second digit of date 20 available within the rubber stamp 25 does not create any doubt regarding date of its receipt at the office of ACP particularly when it was seen by the ACP on the same date, as per endorsement of the ACP at point 'A' with its date written as 20.03.2013.
So far as number of the FIR recorded as "95" in the opening sentence of this report Ex PW2/A, it appears to be a clerical mistake as this case was registered vide FIR No. 45 and not FIR No. 95. Name and particulars of this case find mention in the body of this document. Therefore this clerical mistake also does not create any doubt in the prosecution version.
As regards the overwriting in the second digit of year '13' in the opening sentence of this document, the case pertains to the year 2013. It appears that initially SI Ajay Singh wrote digits '12' and realizing the clerical mistake, rectified the same. The rectification does not create any doubt particularly when from the very beginning, it is case of the prosecution that recovery is of the year 2013.
From the material available on record, this Court finds that prosecution has proved compliance with provisions of Section 57 of the Act and as such the decision in Thandi Ram v State of Haryana 1999 Drugs Cases 546 is of no avail to the accused.
Defence Plea
19. In support of his defence plea, he has examined his real bother Sh.Mukesh Kumar as DW1 and Sh. Javed, a builder.
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According to DW1, Mukesh Kumar, on 19.3.2013, at about 11.45 am, he and his two brothers Gunesh Kumar and Rakesh were present at their shop No.26, Ajmere Gate, Delhi, where Sh. Roshan Singh of Delhi Police came and demanded money from Gunesh Kumar saying that he had been sent by his boss and that he should pay as he had good business, but Gunesh Kumar told that he would pay to the one, whom he earlier used to pay. Further, according to DW1, Sh.Javed, another builder, who was getting a building constructed reached the shop to collect money from Gunesh, witnessed the arguments between Gunesh Kumr and Roshan Singh and that the latter then forcibly took along Gunesh Kumar.
It may be mentioned here that at the time PW12 ASI Roshan Singh stepped into the witness box, nowhere it was suggested to him in his cross examination that he had demanded bribe from Gunesh Kumar on 19.3.2013 and on his failure he had taken Gunesh Kumar to the police station and then falsely implicated him in this case.
What was suggested to PW12 in the crossexamination was that the accused was picked up from his shop No.26 by him (ASI Roshan Singh) and his colleagues on 19.3.2013, at about 12.35 p.m, and "straightway" taken to police station Kamla Market where he was subjected to torture and made to sign many blank papers.
As noticed above, DW1 has stated about arrival of only ASI Roshan 27 Singh. He has nowhere stated that ASI Roshan Singh was accompanied by any police officials. So, the version put forth by DW1 is not in consonance with the defence version suggested to PW12 that he was accompanied by his colleagues. Surprisingly, the accused nowhere pleaded in his defence plea as available in his statement under Section 313 Cr.PC that ASI Roshan Singh was accompanied by any police official.
DW2 Sh.Javed has stated that on 19.3.2013, at about 12.15 p.m, he visited the shop of Gunesh Kumar where he found a person present with him (Gunesh Kumar). His brothers Mukesh and Rakesh Kumar were also present there. According to the witness, Gunesh Kumar asked him (the witness) to wait for sometime as someone had come from the police station and further that he was to go to the police station to see the SHO, who had called him.
It is significant to note that in his defence plea, the accused nowhere pleaded that Sh.Javed had come to his shop on 19.3.2013 at about 12.15 p.m. Had Sh.Javed come to the shop on that date, the accused would not have omitted to state about his presence there at that time. Even during cross examination of PW12 ASI Roshan Singh nowhere it was suggested to the witness that he had demanded bribe from Gunesh Kumar on 19.3.2013 and on his failure he had taken Gunesh Kumar to the police station and then falsely implicated him in this case. Nowhere, it was suggested to PW12 that Sh.Javed was also present at the shop of Gunesh Kumar at that time. 28
This fact creates doubt in the defence plea and introduction of name of Sh. Javed by Sh. Mukesh DW1 subsequently can safely be said to be outcome of afterthough and deliberations.
According to DW1Sh.Javed, in the morning of 19.3.2013, at about 9 a.m, Gunesh Kumar had visited the site and at that time he (DW1) demanded Rs.40,000/which he was to pay to labourers, but Gunesh Kumar asked him to visit his shop at about noon time to collect payment.
Regarding this visit of Gunesh Kumar in the morning, surprisingly, Gunesh Kumar has not pleaded in his defence plea put forth in his statement under Section 313 Cr.PC. Had he so visited any site for inspection and DW2 demanded money for payment to labourers, Gunesh Kumar must not have omitted to state about it in his statement under Section 313 Cr.PC so as to support the version regarding arrival of DW2 at his shop subsequently.
DW2 has placed on record photocopy of an agreement. Its original was also brought by him. According to DW2 in the year 2012, he and Gunesh Kumar entered into an agreement and under the agreement he was to construct a building for Gunesh Kumar at property No.100, Gali Bandook Wali, Ajmere Gate, Delhi.
It is significant to note that Gunesh Kumar accused nowhere stated in his defence plea about any such agreement arrived at between him and DW2 Sh.Javed for construction of any such building.
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A perusal of this agreement would reveal that this agreement does not bear date of its execution. Nor does it tell as to the site where the construction work was to be carried out. It also does not speak as to when the construction was start and by which date it was to be completed.
According to DW2, the stamp paper used in execution was purchased by Gunesh Kumar. But the stamp paper used for execution of this agreement bears the name of its purchaser as Sanju. DW2 could not tell as to who is Sanju.
In view of the above discussion, no reliance can be placed on the agreement and same does not lend corroboration to the defence plea, defence evidence and as such does not come to aid of the accused at all.
According to DW1, the other defence witness DW2 heard arguments between Gunesh and ASI Roshan Singh. Had Sh.Javed seen ASI Roshan Singh at the shop of Gunesh and heard conversation, he would have so stated. But DW2 nowhere stated so. This again creates doubt in the version of DW2 regarding his presence on the given date and time at the shop of Gunesh Kumar.
It is noteworthy that neither the brothers of the accused nor Sh.Javed filed any complaint against the SHO or ASI Roshan Singh. Had the SHO sent ASI Roshan Singh to collect any amount of bribe from Gunesh and on its non payment falsely implicated Gunesh in this case, they would not have kept 30 mum. Rather, they would have reported the matter to senior police officers or filed complaint in Court. No such action was taken by them. This conduct also speaks volumes against them and creates doubt in the defence version put forth by them and the accused.
20. From the evidence led by the prosecution, it stands established that investigating officers took all steps to rule out tampering with the case property. Not only this, the sample parcel reached FSL Rohini on 02.04.2013. Recovery was made on 19.03.2013. This Court finds that this is a case of despatch of sealed sample parcel to the FSL Rohini with seals intact and without delay. Therefore, the decision in Wilson Dayal v. State 1993 JCC 3 cited by learned counsel for accused on the point of delay is of no avail to accused.
21. In order to prove analysis of the contents of sample, prosecution has examined PW13 Dr. Kanak Lata Verma, Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi. Although report of the expert is perse admissible in evidence under Section 293 CrPC, the expert witness was called to appear at the request of learned defence counsel that she was subjected to the cross examination.
As opined by the Sr. Scientific Officer (Chemistry) in her report Ex PW7/D the contents of the sample were found to be Charas (Cannabis). In the course of arguments, learned defence counsel has not advanced any 31 argument challenging the opinion given by the expert regarding the contents of the parcel. From this report it stands established that the accused was found in possession of charas (Cannabis).
22. In view of above discussion, this Court holds that prosecution has fully established its case that on 19.03.2013 when accused Gunesh Kumar was apprehended by the raiding party headed by ASI Roshan Singh, he was found in possession of 1 kilograms and 600 grams of charas. Accordingly, he is held guilty of the offence under Section 20 (b) (ii) (C) of Narcotic Drugs and Psychotropic Substances Act, 1985 and convicted thereunder.
23. Be put up on 28.08.2014 to hear the convict on the point of sentence.
Announced in Open Court
on 26.08.2014 (Narinder Kumar )
Special Judge(NDPS)
Delhi.
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IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.33/13
FIR No.45/13
PS Kamla Market
State
Versus
Gunesh Kumar .......Convict
ORDER ON SENTENCE
28.08.2014
Present: Sh. Rakesh Mehta, Addl. PP for State.
Convict in JC
I have heard the convict and learned Addl. PP on the point of sentence. Convict prays for leniency submitting that he is 52 years of age without previous record of involvement in any such case.
On the other hand, learned Addl PP submits that having regard to the quantity of the contraband recovered from the convict and ill effects of consumption of drugs in the society, including youths, the accusedconvict be sentenced with such sentence which deters others from indulging in sucklike crime.
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Vide judgment pronounced on 26.08.2014, this Court has held the accused guilty and convicted him of the offence under Section 20 (b) (ii) (C) of Narcotic Drugs and Psychotropic Substances Act, 1985 as he was found in possession of 1 kilograms and 600 grams of Charas.
Record does not reveal that he has ever been challaned earlier for such crime. He is a person of 52 years of age. As per record he is in custody since 20.03.2013 except period of 20 days of interim bail. But having regard to the commercial quantity of charas recovered from the convict, ill effect of consumption of such like contraband on the health and the minimum sentence provided for the offence, I hereby sentence the convict to Rigorous Imprisonment for 10 years and to pay fine of Rs.1,00,000/ or in default of payment of fine to undergo further Simple Imprisonment for six months, U/s 20 (b) (ii) (C) of the Act.
The period of imprisonment already undergone during investigation, inquiry and trial to be set off against the period of sentence awarded vide this judgment.
Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 28.08.2014 (Narinder Kumar )
Special Judge(Central)/Delhi.
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