Delhi District Court
State vs Punnu Lakhi Dass on 31 March, 2010
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IN THE COURT OF SHRI J.P.S.MALIK
SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
PATIALA HOUSE COURT, NEW DELHI
SC No. 75A/07
FIR NO. 367/07
PS: OIA
State Vs Punnu Lakhi Dass
W/o Sh Gurdhan Dass
R/o H.No. 178, Churia Mohalla
Bengali Colony, Tuglakabad Extension
New Delhi.
Date of institution of the suit : 26.11.2007
Date on which order was reserved : 23.03.2010
Date of decision : 31.03.2010
J U D G M E N T
Accused Punnu Lakhi Dass has been chargesheeted for offence punishable u/s 20 of the NDPS Act, with the allegations that on 9.5.2007 at about 8.40 PM, she was found in possession of 2 KG of 'Ganja' near Shiv Mandir, Bengali Colony, Tuglakabad Village, New Delhi.
2. Charge for offence punishable u/s 20 (b) (ii) (B) of the NDPS Act was framed against the accused, to which she pleaded not guilty and claimed trial.
3. On behalf of prosecution, eleven witnesses were SC NO. 75A/07 2 examined in order to substantiate the allegations against the accused.
4. PW-1 HC Rajbir Singh has deposed that on 9.5.2007, he was posted at PS OIA and at about 7.45 PM, on that day, SI Mahender Singh received a secret information, about a woman, likely to come from Tuglakabad Extension at about 8.30 PM, having Ganja in her possession. PW-1 HC Rajbir Singh further deposed that thereafter, a DD to that effect was lodged by ASI Mahender Singh, and a raiding party consisting of the witness, Ct. Sanwaliya and Lady Ct. Sunita was formed and at about 8.40 PM, police party reached Tuglakabad Extension, where a woman was seen coming from Tuglakabad Extension, carrying a plastic katta in her right hand and she was stopped on the pointing out of the secret informer with the help of Lady Ct. Sunita. PW-1 further deposed that said lady disclosed her name as 'Punnu Lakhi Dass' and ASI Mahender Singh, informed her about the information of her having Ganja in her possession and further told she had to be searched. PW-1 HC Rajbir Singh, further deposed that SI Mahender Singh also explained to her about her legal right to be searched in presence of a Gazetted Officer or a Magistrate, if she so desired, which was declined by her telling that any police officer can search her. Then a notice u/s 50 NDPS Act was given by SI Mahender Singh, which is Ex. PW1/A, and contents of the same were explained to her and reply of accused was written on behalf of accused by SI Mahender Singh, on which she put her SC NO. 75A/07 3 thumb impression. Information was given to SHO of PS OIA. PW-1 HC Rajbir Singh further deposed that thereafter, the polythene packet which the accused was carrying, was checked and was found containing 2 KG of 'Ganja', out of which 100 Grams was separated as a sample, in a plastic dabba given marking 'A-1' which was converted into a parcel and sealed with the seal of 'MS'. Remaining Ganja was also converted into a cloth parcel, given serial no. 1 and also sealed with the seal of 'MS'. SHO Inspector B.S.Rana reached the spot in the meantime, and the case property and the samples which were sealed by SI Mahender Singh vide memo Ex. PW1/C, were handed over to SHO Inspector B.S.Rana alongwith FSL Form, and copy of seizure memo. SHO Inspector B.S.Rana also affixed his seal of 'BSR' on both the parcels, FSL Form and then left the spot. PW-1 HC Rajbir Singh, further deposed that SI Mahender Singh, prepared a rukka and same was given to Ct. Sanwaliya for getting the case registered and further investigation of the case, was handed over to ASI Ombir Singh. The accused was arrested in the presence of the witness and personal search of the accused was taken by Lady Ct. Sunita.
5. PW-2 is ASI Ombir Singh, and has deposed that on 9.5.2007, he was entrusted the investigation of the case, and he reached the spot near Bengali Colony, Shiv Mandir, where SI Mahender Singh was found alongwith HC Rajbir Singh, Lady Ct. Sunita and accused Punnu Lakhi Dass. PW-2 further deposed that SI Mahender Singh handed over to him original seizure memo, notice u/s 50 NDPS Act alongwith reply of the SC NO. 75A/07 4 accused, and in the meantime, Ct. Sanwaliya handed over the original rukka and copy of FIR. Site plan, Ex. PW2/A was prepared by PW-2 ASI Ombir Singh, who also deposed that he served a notice u/s 52 NDPS Act, informing the accused grounds of her arrest. Accused was arrested vide memo Ex. PW2/B and his personal search was taken and recorded vide memo Ex. PW2/C. PW-2 also deposed that he prepared a special report u/s 57 NDPS Act, regarding seizure of Ganja and arrest of the accused and put the same before SHO for forwarding the same to senior officers. Carbon copy of the same Ex. PW2/E has been proved by the witness. PW-2 ASI Ombir Singh, also deposed that he obtained priority letter from DCP for sending the sample to FSL and on 28.6.2007, sample of Ganja was sent to FSL, Rohini, alongwith FSL Form through Ct. Ramesh and FSL report, Ex. PW2/F and Ex. PW2/G, confirming the substance recovered, as 'Ganja' was received.
6. PW-3 is W.Ct. Sunita, who was also a member of the raiding party by which the accused was apprehended. PW-3 Ct. Sunita has deposed generally on the lines of PW-1 HC Rajbir Singh, as regards the circumstances in which the raiding party was constituted, accused was apprehended on 9.5.2007 and the Ganja recovered from her possession.
7. PW-4 HC Ram Sunder has deposed on the formal point of recording of FIR in the case on 9.5.2007, on the basis of rukka sent by SI Mahender Singh through Ct. Sanwaliya, as the witness was working as 'Duty Officer' at PS OIA on 9.5.2007.
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8. PW-5 Dr Rajender Kumar, Assistant Director, FSL had proved the report Ex. PW2/G.
9. PW-6 Ct. Ramesh Chand has deposed that on 28.6.2007, on the directions of the IO of the case, he had taken the exhibits of the case from MHC(M) OIA vide RC No. 137/21 and deposited the same at FSL, Rohini.
10. PW-7 is Inspector B.S.Rana, who was posted as SHO at PS OIA on 9.5.2007. PW-7 further deposed that on 9.5.2007, at about 7.40 PM, an information was given by SI Mahender Singh, about a secret information received by him to the effect, that a lady, who used to sell Ganja in the Bengali Colony, Shiv Mandir, can be apprehended that day alongwith Ganja, if a raid was conducted. PW-7 Inspector B.S.Rana, further deposed that he informed senior officers about the information and also directed SI Mahender Singh to conduct raid. PW-7 also deposed that after about an hour, HC Rajbir Singh, informed him on telephone that a lady named 'Punnu Lakhi Dass' had been apprehended by them and Ganja recovered. At about 9.30PM, the witness reached the spot in a government vehicle, and deposed that accused was also present, was also interrogated by the witness, and then SI Mahender Singh produced two pullandas duly sealed with the seal of 'MS' and carbon copy of the seizure memo and he also put his seal of 'BSR' on both the pullandas and FSL Form. Both the pullandas, FSL Form, copy of seizure memo was taken by the witness alongwith him and then was deposited in the malkahana at about 10.50 PM.
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11. PW-8 is SI Pratap Singh and has deposed that on 9.5.2007, he was working as SO to ACP, Kalkaji, who also used to look after the PS OIA and Sangam Vihar. PW-8 further deposed that on 10.5.2007, an information u/s 57 NDPS Act was received in the office of the ACP, which was diarised at serial no. 3776 dated 10.5.2007 and was placed before the ACP. The information, Ex. PW8/A has been proved by the witness.
12. PW-9 is SI Mahender Singh, by whom the secret information was received on 9.5.2007, he had recorded the DD entry no. 29A in that regard and copy of DD Ex. PW9/A has been proved by the witness. PW-9 SI Mahender Singh further deposed that he had informed the SHO about the secret information and as per the directions of the SHO, he had prepared a raiding party comprising of HC Rajbir Singh, Ct. Sanwaliya, Lady Ct. Sunita and then reached at Bengali Colony, near Shiv Mandir in plain clothes. PW-9 further deposed that he had requested 4-5 passersby to join the raiding party, near Shiv Mandir, Bengali Colony but none agreed and at about 8.30PM, a lady was seen coming from the main road, who was pointed out by the informer, and the lady was carrying a plastic katta on her right shoulder. PW-9, SI Mahender Singh, deposed that he stopped the lady with the help of Lady Ct. Sunita and she disclosed her name as 'Punnu Lakhi Dass' and that she was told about the information that she was carrying Ganja with her. PW-9, SI Mahender Singh, also deposed that accused was told that if she wanted, her SC NO. 75A/07 7 search can be taken in presence of a Gazetted Officer or a Magistrate and notice to that effect u/s 50 NDPS Act was given. The offer was declined by the accused and then plastic katta, which the accused was carrying was checked and same was found containing Ganja type object. The witness has deposed as regards the seizure, taking out of the sample, sealing etc., of the sample and the case property and has broadly deposed on the lines of PW-1 HC Rajbir Singh. Form FSL was filled up. SHO was informed, who also reached the place, to whom pullandas, FSL Form and copy of seizure memo was handed over.
13. PW-10, HC Sanwaliya, was also a member of the raiding party by which accused was apprehended on 9.5.2007 and contraband recovered from her possession. The witness has deposed broadly on the lines of PW-1 HC Rajbir Singh and PW-9 SI Mahender Singh as regards the circumstances in which the accused was apprehended and contraband recovered from her possession.
14. PW-11 HC Satya Narayan was working as MHC(M) at PS OIA on 9.5.2007 and has deposed that on 9.5.2007, SHO, PS OIA deposited two sealed pullandas sealed with the seal of 'MS' and 'BSR' which were entered by him at serial no. 4042 in register no. 19 and case property deposited in the malkhana. PW-11 HC Satya Narayan also deposed that on the same day, ASI Ombir Singh deposited personal search of the SC NO. 75A/07 8 accused, Punnu Lakshi Dass, alongwith a copy of the notice u/s 50 NDPS Act. PW-11 HC Satya Narayan also deposed that on 28.6.2007, the sample exhibit of the case was sent to FSL, Rohini through Ct. Ramesh Chand vide RC No. 137/21. The photocopy of the relevant entry in register no. 19, Ex. PW11/A has been proved by PW-11, HC Satya Narayan.
15. The accused was examined and her statement recorded u/s 313 Cr.P.C., in order to give her an opportunity to explain the incriminating facts appearing in evidence against her. Accused denied the allegations and submitted that she has been falsely implicated in the case. Further, the accused has stated that her husband had been using Ganja at Shiv Mandir regularly for the last fifteen years, and because of that, she had been arrested and falsely implicated in the case.
16. Arguments were heard on behalf of the State as advanced by Ld Additional Public Prosecutor and also on behalf of the accused, as advanced by ld defence counsel and I hold as under:
17. PW-9 SI Mahender Singh has deposed that accused when seen carrying a plastic katta on her right shoulder, she was stopped with the help of lady Ct. Sunita and was told about the information of her having Ganja with her and she was given the offer to be searched in presence of a Magistrate or a Gazetted Officer and then notice u/s 50 NDPS Act was given to her. Notice u/s 50 of the NDPS Act, has SC NO. 75A/07 9 been proved as Ex. PW1/A and reply of the accused has been proved as Ex. PW1/B and both the notice as well as the reply of the accused, are having her thumb impression. As per reply to the notice u/s 50 NDPS Act, which is Ex. PW1/B and was recorded by PW-9, SI Mahender Singh, himself on behalf of the accused, suggest that Ganja has already been recovered from her possession and so, she now do not want to be searched in presence of any officer. It means that Ganja had already been recovered from the possession of the accused, before notice u/s 50 NDPS Act, was given to her but PW-9 is deposing to the contrary, and stating that it was only after the reply of the accused had been recorded that the plastic katta, which the accused was carrying was checked and same was found to contain Ganja type object. It may not be strictly the non-compliance of the provisions of section 50 of the NDPS Act as Ganja was not recovered from the person of the accused but from the plastic katta, which she was carrying, but it highlights the inconsistency in the case of the prosecution that SI Mahender Singh was having a prior information as regards the accused carrying Ganja, and search was taken even before the notice u/s 50 NDPS Act, was served to the accused. Then, there are some material contradictions and weakness in the case of the prosecution. For instance PW-9, SI Mahender Singh, who was leading the police party, by which the accused was apprehended, had stated that he completed the investigation near the spot under a pole light whereas PW-10, HC Sanwaliya, who was a member of the police party by which the accused was apprehended, had stated in his cross examination that SC NO. 75A/07 10 accused came there between 8.30 to 8.40 PM. Further stating that spot was a 'kacha rasta' and there was no street light. PW-10 HC Sanwaliya further stated in his cross examination that Shiv Mandir was situated at a distance of 100 meters from the spot, and the proceedings were conducted by the IO with the help of a torch, which IO was carrying in his kit bag. As per the site plan, Ex. PW2/A, on one side of the kacha rasta, is pahari of Tuglakabad Village and there appears to be no electric pole nearby. Not only this, even in the rukka sent by SI Mahender Singh, to the PS for registration of the case, it is stated that at about 8.40 PM, a lady came on the kacha rasta from the side of Tuglakabad Extension. Again despite having prior information as regards the accused having in her possession Ganja, no sincere effort was made to join the public men in the proceedings. The accused was an illiterate lady and the notice as well as her reply to the notice have, only, her thumb impression. There is nothing to suggest that she had been explained her right to be searched in presence of a Magistrate or a Gazetted Officer or she had been able to understand the same. Even otherwise, the search of the accused was conducted before notice us/ 50 NDPS Act was given to her, as per the deposition of PW-9 SI Mahender Singh which is evident in view of reply to the notice Ex. PW1/B.
18. In view of the above discussion, I hold that it is not safe to hold the accused accountable for the allegations against her, merely on the basis of the deposition of the SC NO. 75A/07 11 police witnesses alone, in view of the fact that accused was an illiterate lady and the provisions of section 50 NDPS Act were not complied with, in the letter and spirit, and the fact that despite having prior information and the opportunity, no sincere effort was made to join the public witnesses in the proceedings. Accordingly, accused Punnu Lakhi Dass is acquitted of charge u/s 20 (b) (ii) (B) of the NDPS Act and it is held that prosecution has failed to prove its case against the accused, beyond reasonable doubt.
Announced in the open
court on 31.03.2010 (J.P.S.MALIK)
Special Judge/NDPS-SD
SC NO. 75A/07
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SC NO. 75A/07
31.3.2010
Present: Addl. PP for the State.
Accused is present on bail.
Vide separate judgement of the date, accused is acquitted of charge u/s 20 (b) (ii) (B) of the NDPS Act.
File be consigned to record room.
(J.P.S.Malik) Special Judge/NDPS-SD 31.3.2010 SC NO. 75A/07