Delhi District Court
Fir No. 253/2018 State vs . Jitender Kumar Etc Page No.1 Of 46 on 18 December, 2020
IN THE COURT OF SH. AJAY GUPTA,
SPECIAL JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
S.C. No. 728/2019
FIR No.253/2018
U/s 21/29 NDPS Act
PS Crime Branch
State
Versus
(1) Jitender Kumar
s/o Kailash Chand
r/o 32/216 Trilokpuri,
Delhi
(2) Virender @ Pichka
S/o Sh. Kailash Chand
r/o 32/210, Trilokpuri,
Delhi ........... Accused
Date of Institution: 10.02.2019
Reserved for Judgment on : 01.12.2020
Judgment pronounced on: 18.12.2020
JUDGMENT
1. The prosecution case in brief is that on 04.10.2018 at about 1.00 p.m, a secret informer came to the office of Narcotics Cell, Crime Branch, Old Kotwali Building Daryaganj and passed on information to HC Ravinder Khokar that Jitender r/o 32 Block FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.1 of 46 Trilokpuri used to supply heroin in Delhi and that he would come in between 3.00 p.m to 4.00 p.m to his house with heroin and if nakabandi is made near his house, he can be apprehended with heroin. HC Ravinder Khokhar produced the secret informer before ASI Dushyant and informed him about the secret information. ASI Dushyant made enquiries from the secret informer and after satisfying himself, he produced him before Insp. Brijpal Singh at about 1.30 p.m. Inspector Brijpal after satisfying himself informed ACP Narcotics Sh. RK Ojha who directed for conducting the raid. ASI Dushyant lodged DD no.11 at about 2.00 p.m and sent the copy of the same to Insp. Brijpal in compliance of section 42 of NDPS Act. Insp. Brijpal forwarded the said DD to senior officers. As per directions of ACP, ASI Dushyant prepared a raiding team consisting of HC Ravinder Khokar, HC Ravinder Malik and Ct. Pawan and all the members of the raiding party including secret informer after taking IO bag, field testing kit and electronic weighing scale left the PS vide DD no.12 in private car bearing no. DL 3CCB 2362 being driven by Ct. Pawan and reached at 32 Block in a vacant place at about 3.00 p.m. On the way, at Akshardham bus stand, Mayur Vihar Metro bus stand, IO requested 44 passersby to join the raiding party but they all refused and went away disclosing their genuine reasons. At 32 Block, Trilokpuri, ASI Dushyant again requested 34 passersby to join the raiding team but they refused. The car was parked at the distance of 1015 meters at the corner of road. All the members of the raiding team were briefed. Raiding team members FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.2 of 46 were deputed at the spot and they started waiting for the accused. It is further the case of the prosecution that at about 3.25 p.m, one person came on foot from the side of Chilla Village towards 32 Block Trilokpuri through service road. The secret informer identified him as Jitender and thereafter, he left the spot. As the said person reached 32 Block near park at vacant space, he was apprehended at about 3.30 p.m with the help of staff and on enquiry, his name came to be known as Jitender Kumar. Ct. Pawan was directed to bring the vehicle at the spot. ASI Dushyant introduced himself and the raiding team members to the accused. He was also apprised about the secret information that he is involved in supply of heroin and that he had come with heroin and there is possibility of recovery of heroin from him and that his search is to be conducted. He was also apprised about his legal rights that he can be searched in the presence of Gazetted Officer/Magistrate but he refused for the same. Accused was also given an option to search the police vehicle as well as raiding team members but he refused. Thereafter, ASI Dushyant prepared a notice u/s 50 NDPS Act and original copy was given to the accused and he was also read over the said notice. The accused understood the same and mentioned his refusal on the notice. ASI Dushyant searched the accused. From the right hand of accused, one weighty polythene was recovered. From the said polythene, another transparent polythene containing brownish powder was recovered. The brownish powder was checked on field testing kit and it was found to be heroin. The said polythene FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.3 of 46 alongwith powder was weighed and it was found to be 500 grams. Out of the same, two samples of 5 grams each were drawn and kept in small transparent polythene bags and the same were converted into pullandas and given Mark A and B and remaining heroin was also converted into pullanda and it was given Mark C. Form FSL was filled at the spot. All the pullandas and form FSL were sealed with the seal of 3CPS/NB DELLHI. All the pullandas and FSL form were seized. Seal after use was handed over to HC Ravinder Khokar. Thereafter, ASI Dushyant prepared a tehrir and handed over the same to Ct. Pawan alongwith three pullandas, form FSL and seizure memo with directions to hand over the rukka to duty officer and other documents/pullandas to SHO. Duty officer recorded the FIR and SHO conducted the proceedings u/s 55 NDPS Act. He mentioned the FIR number on the pullandas after enquiry from the duty officer. SHO called the MHCM and handed over the pullandas to him after sealing with his seal of SS. After registration of the FIR, further investigation was entrusted to ASI Sanjay Tyagi who reached at the spot where ASI Dushyant handed over the custody of accused alongwith documents to him. ASI Sanjay Tyagi prepared the site plan. He recorded the statements of the witnesses. Accused was arrested. His personal search was conducted. In the personal search of accused notice u/s 50 NDPS Act, cash Rs.430/, Adhar Card and RC of vehicle were recovered. Accused was interrogated and his disclosure statement was recorded. Accused disclosed that the source of heroin is Virender @ Pichka. Accused FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.4 of 46 was brought to Narcotics Cell where Insp. Brijpal Singh made enquiries from the accused and found his arrest satisfactory. Jamatalashi was deposited in the malkhana through MHCM. Statement of SHO/Satender Sangwan was recorded. ASI Sanjay Tyagi prepared the report u/s 57 NDPS Act and sent the same to Insp. Brijpal who forwarded the same to senior officers. On 08.10.2018, exhibits were sent to FSL through Ct. Pankaj. Accused Virender @ Pichka was searched but he could not be traced. He was declared Proclaimed Offender vide order dated 31.01.2019. Thereafter, on 04.02.2019, accused Virender surrendered before the Court. He was arrested in this case and one day PC remand was obtained. He was produced before Insp. Rajnikant who made enquiries from him. Section 174A IPC was added. Another source of supply namely Javed could not be apprehended as his complete address was not available. After completion of the investigation and pending receipt of FSL result, chargesheet was prepared and filed in the Court. Later FSL result was received which confirmed that the recovered substance was diacetylmorphine.
2. Cognizance of the offence was taken. Copies of documents were supplied to accused persons. Arguments on charge were heard. Vide order dated 17.05.2019, accused Virender was discharged for the offence u/s 21(c) NDPS Act as he was arrested on the basis of disclosure statement of accused Jitender and no recovery of any contraband was effected from him. It was also observed that FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.5 of 46 no evidence came on record for hatching the conspiracy by Jitender with coaccused. However, accused Virender was declared proclaimed offender in this case and thus, charge u/s 174A IPC was framed against him to which he pleaded not guilty and claimed trial. Prima facie evidence was found against accused Jitender and thus, charge u/s 21(c) NDPS Act was framed against him to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 13 witnesses.PW1 is Ct. Pawan. He accompanied the raiding party to the spot. He was driving the vehicle of raiding party. PW2 is HC Ravinder Khokhar. The secret informer gave information to him about coming of accused with heroin. Seal after used was handed over to him. PW3 is ASI Dushyant. He is the first IO. He alongwith other members apprehended the accused and recovered the contraband from him. These witnesses are the members of raiding party. All the three witnesses have deposed more or less the same as stated in para '1' of the Judgment and therefore, the same is not being repeated for the sake of brevity.
4. PW4 is ASI Mahesh Chand. He deposed that on 06.10.2017, he had issued seal with impression 3CPS/NB DELHI to ASI Dushyant Singh and made entry at sr.no.19 in the register. ASI Dushyant returned the seal to him on 15.11.2018. Copy of the register is Ex.PW4/A. He further deposed that on 04.10.2017, ASI FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.6 of 46 Dushyant had taken the electronic weighing machine and he made entry at sr.no.57, copy of which is Ex.PW4/B. The said scale was returned on 05.10.2018.
5. PW5 is Ct. Pankaj. He deposed that on 08.10.2018, he had taken one sealed parcel Mark A sealed with the seal of 3CPS NB DELHI and SS alongwith FSL form and documents from MHCM vide RC no.567/21 and deposited the same at FSL Rohini in proper condition. He deposited the receipt with MHCM.
6. PW6 is SI Ramotar. He is the Duty Officer. He recorded the FIR of this case. The copy of the FIR is Ex.PW6/B, endorsement is Ex.PW6/A, certificate u/s 65B of IE Act is Ex.PW6/C, kayami general diary is Ex.PW6/D and bandi DD is Ex.PW6/E.
7. PW7 is HC Devender. He was working in the office of ACP at the relevant time. On 04.10.2018, he received information u/s 42 NDPS Act and placed the same before ACP who signed the same. The copy of diary register is Ex.PW7/A and copy of report is Ex.PW3/A. He further deposed that on 05.10.2018, he also received reports u/s 57 NDPS Act and registered the same vide diary no. 1687 and 1688. He produced the same before ACP who signed the same. The reports are Ex.PW7/B and Ex.PW7/C and copy of register is Ex.PW7/D. He also received report u/s 57 NDPS Act on FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.7 of 46 06.02.2019 qua accused Virender @ Pichka, the same report is Ex.PW7/E and copy of diary register is Ex.PW7/F.
8. PW8 is Sh RK Ojha, ACP. He deposed that Insp.
Brijpal came to his office and gave information that one Jitender who used to supply heroin will come to his house with heroin and he directed to take legal action. He further deposed that copy of DD no.11 was produced before him and ASI Dushyant prepared a raiding party and left for the spot. Copy of DD no.11 is Ex.PW3/A. He also deposed that copies of reports u/s 57 NDPS Act were placed before him and he signed the same.
9. PW9 is Insp. Brijpal Singh. He deposed that the secret informer was produced before him and he interrogated him who disclosed about coming of accused in between 3 to 4 p.m. He informed ACP Narcotics who directed to conduct the raid. He further deposed that ASI Dushant lodged DD no.11 Ex.PW3/A which he forwarded to senior officials in compliance of Section 42 of NDPS Act. On the direction of ACP, a raiding team was constituted comprising of ASI Dushyant, HC Ravinder Khokhar, HC Ravinder Malik and Ct. Pawan they they left in car no. DL 3CCB 2362 driven by Ct. Pawan, alongwith secret informer. IO recorded DD no.12. ASI Sanjay Tyagi had produced accused Jitender before him and informed about the facts. He interrogated accused Jitender and found that 500 grams heroin was recovered FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.8 of 46 from him. Reports u/s 57 NDSP Act were produced before him which are Ex.PW7/B and Ex.PW7/C and he forwarded the same to ACP.
10. PW10 is Insp. Rajni Kant. He deposed that on 06.02.2019, ASI Sanjay Tyagi produced accused Virender infront of him and he interrogated accused Virender in connection with his arrest and found his arrest satisfactory. ASI Sanjay Tyagi also produced a report u/s 57 NDPS Act regarding arrest of accused Virender, the said report is Ex.PW7/E.
11. PW11 is ASI Jag Narain. He is the then MHCM. He deposed that on 04.10.2018, Insp. Satender Sangwan called him and handed over three parcels A, B and C having seal of 3CPS NB DELHI and SS alongwith FSL form having same seal and he deposited the same in malkhana. He made entry at sr.no. 4288 in register no.19, copy of which is Ex.PW11/A. On 05.10.2018, personal search articles were deposited in the malkhana vide sr.no.4293, copy of the said entry is Ex.PW11/B. On 08.10.2018, parcel Mark A was sent to FSL through Ct. Pankaj vide RC no. 567/21 copy of which is Ex.PW11/C and copy of receipt is E.PW11/D. On 09.04.2019, he received the FSL result and handed over the same to ASI Sanjay.
12. PW12 is Insp. Satender Sangwan. He deposed that on FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.9 of 46 04.10.2018, Ct. Pawan came and produced cloth pullandas Mark A,B and C sealed with the seal of 3CPS NB DELHI and copy of seizure memo and FSL form with same seal. He put his seal of SS on all the pullandas and FSL form. He enquired FIR number from the duty officer and mentioned the same on the pullandas. He called the MHCM and deposited the case property in the malkhana against entry Ex.PW11/A.
13. PW13 is ASI Sanjay Tyagi. He is the second IO. He reached at the spot where ASI Dushyant met him and handed over the custody of accused and the documents. He arrested the accused vide arrest memo Ex.PW2/B and conducted his personal search vide memo Ex.PW2/C. In the personal search of accused notice u/s 50 NDPS Act, cash Rs.430/, aadhar card and RC were recovered. He recorded the disclosure statement Ex.PW2/D. He recorded the statements of witnesses. He deposited the jamatalashi articles in the malkhana. He produced report u/s 57 NDPS Act before Insp. Brijpal which is Ex.PW7/C. During interrogation, accused disclosed the name of his associate as Virender @ Pichka who was his real brother. He got deposited the case property in the malkhana. He deposed that later on accused Virender @ Pichka surrendered and he was called on production. He was arrested vide memo Ex.PW1/C and his personal search Ex.PW1/D was conducted. His disclosure statement is Ex.PW1/E. Accused Virender disclosed the name of Javed as source of contraband who could not be traced. He collected FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.10 of 46 the FSL result which is Ex.PW13/B. The notice u/s 50 NDPS Act. is Ex.PX.
14. Statement of accused u/s 313 Cr.P.C was recorded wherein accused Jitender has stated that he is innocent. He has not committed any offence. He has been falsely implicated in this case. No recovery has been effected from him. He was lifted from his house and the contraband was planted upon him by the police. He did not lead any defence evidence. Accused Virender @ Pichka stated that he does not know if any process u/s 82 Cr.P.C has been issued against him. He has been falsely implicated being the real brother of accused Jitender.
15. Arguments have been heard from the Ld. Addl. PP as also from the Ld.Counsel for accused. Ld. Addl.PP has argued that the recovery witnesses examined by the prosecution have proved the recovery of 500 grams heroin. All the relevant provisions of NDPS Act have been duly complied with. The witnesses have supported the prosecution case. FSL result confirms that the recovered substance was heroin. It is therefore, argued that the prosecution has been able to prove its case against the accused.
16. Ld. Counsel for accused argued that the case of the prosecution is false and fabricated. The accused has been falsely implicated after lifting the accused from his house. Ld. Counsel FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.11 of 46 argued that there are material contradictions in the testimonies of raiding team members. Ld. Counsel has drawn the attention of the Court on the testimony of PW1, PW2 and PW3. It has been stated that PW1 stated that he, HC Ravinder and HC Ravinder were called by ASI Dushyant in his office at about 1.45 p.m but in cross examination, he stated that they all were present in their office in the same room while PW2 HC Ravinder stated that he took the informer before ASI Dushyant and informed him about the information. It is further stated that PW2 and PW8 have stated that the secret informer was not produced before ACP but PW3 stated that he was produced before ACP. As per PW1 nakabandi was held at the instance of secret informer but PW2 stated that place of nakabandi told by the secret informer and he had also told that at the particular place accused would be apprehended. PW3 stated that the secret informer had not disclosed in their office that the accused would come on the road on which accused was apprehended subsequently, they held nakabandi while PW9 stated that the informer had not disclosed the specific route on which the suspect is likely to come. As regards to DD no.11, it has been submitted that PW1 & PW2 have deposed that the accused has procured heroin from Salman but this fact is not mentioned in the DD. He further argued that PW2 had not disclosed the parentage and residence address of accused Salman. PW3 has not disclosed as to when accused had taken the contraband from Salman or about the price paid by him to Salman. Ld.Counsel further stated that a number of public witnesses were available at FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.12 of 46 the spot but the investigating officer has failed to join any public witness in this case. Ld. Counsel has further drawn the attention of the court on the testimony of PW1, PW2 and PW3 and stated that PW2 has specifically stated that no entry was made with regard to issuance of IO bag and electronic weighing machine. With regard to site plan, Ld. Counsel has drawn the attention on the testimonies of PW1, PW2 and PW3 and stated that they have made contradictory statement in this respect. It is also stated that the prosecution has failed to comply the provisions of Section 50 NDPS Act in this case. It is stated that PW1 could not state as to whether the accused had put his reply on the original notice or the carbon copy of the notice. Accused was not offered the search of the field testing kit and electronic weighing machine as the same has been admitted by PW2. Even PW3 has also admitted that he had not offered the search of IO bag, field testing kit and electronic weighing machine to the accused. Ld. Counsel further argued that PW1 stated that FSL form was of two pages but he does not know if it was hand written or typed and how many columns were there. PW2 stated that FSL form was in two sheets and it was a printed proforma. He cannot tell the number of columns while PW3 stated that he does not remember whether the FSL form was in one sheet or two sheets but he filled up the columns. PW12 stated that he does not remember the number of pages in which the FSL form was written. It is stated by the Ld. Counsel that there is a contradictory version in respect of FSL form and that the benefit of the same goes to the accused. Ld. Counsel FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.13 of 46 further argued that there is also a contradictory version with regard to the arrest memo as PW4 has deposed that wife of the accused came at the spot and he obtained her signatures in column no.9 of arrest memo but PW2 and PW3 stated that no family member had come to the spot and PW1 stated that he does not know if any family member of the accused had came to the spot. The seal bearing impression 3CPS/NB DELHI was in the possession of ASI Dushyant since 06.10.2017 and it was not issued to him on the date of recovery effected in the present case. Ld.Counsel further argued that PW5 Ct Pankaj had taken the FSL form, carbon copy of RC and FIR to FSL but he admitted that as per Mark PW5/B, sample seal and form FSL are different articles and that fact of depositing the copy of FIR, DD number, seizure memo, sample seal is not mentioned. PW7 could not tell the time when the entries were made in diary register regarding receipt of documents and returning of the same. Ld. Counsel further drawn the attention on the statement of PW8 ACP RK Ojha who stated that the copy of DD no.11 was produced before him while PW3 stated that he produced the said DD before Insp. Brijpal who forwarded the same to Senior Officer. PW11 ASI Jag Narayan admitted that there is entry no.4288A in register no.19 and that there is no other entry with alphabet and there is also overwriting at point 'X' which suggests that there is some manipulation. PW13 ASI Sanjay Tyagi admitted that there is no mention regarding preparation of site plan, personal search of the accused and about disclosure statement in his report u/s 57 NDPS FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.14 of 46 Act. PW13 stated that he had not handed over the copy of seizure memo and notice u/s 50 NDPS Act to anyone and both remained with him till filing the chargesheet. Ld.Counsel has also pointed out the contradictions regarding the notice u/s 50 NDPS Act. PW13 has stated that he does not remember whether it was written on one side or both the sides and he does not remember whether the accused had put the date below his signatures but again said the accused has not put the date. It is submitted that no public witness has been joined in this case by the IO though available at the spot. No particulars of said persons were noted down. It is submitted that there is no compliance of section 42/50 of NDPS Act in this case. IO did not produce the accused before Gazetted officer. In none of the cases, they produce the accused before Gazetted Officer. Ld. Counsel submits that the accused has been lifted from his house and contraband has been falsely planted upon him. It is requested that the accused Jitender may be acquitted. It is further argued that co accused Virender @Pichka was not served properly and thus proceedings u/s 82 Cr.P.C were issued. It is further submitted that the proceedings were not conducted appropriately and thus, the accused may be acquitted.
17. PW1 Ct. Pawan, PW2 HC Ravinder Khokhar and PW3 ASI Dushyant are the three witnesses of recovery on which the prosecution case mainly rests. PW13 ASI Sanjay Tyagi is the Second IO. PW2 HC Ravinder Khokhar received the secret FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.15 of 46 information about coming of accused Jitender to his house at 32 Block Trilokpuri in between 3 to 4 p.m with heroin and he produced the secret informer before PW3 ASI Dushyant who recorded the information in DD no. 11 Ex.PW3/A. ASI Dushyant produced the secret informer before PW9 Insp. Birjpal who after satisfying himself passed on the information to PW8 ACP R.K.Ojha and then PW8 directed to conduct the raid. PW3 ASI Dushyant submitted the copy of DD no.11 to Insp. Brijpal who forwarded the same to ACP. PW3 deposed that on 04.10.2018, at about 1.00 p.m, one secret informer came and informed HC Ravinder Khokar that one person namely Jitender who used to supply heroin in Delhi, would come to his house in between 3 pm to 4 pm after procuring heroin from Salman and if raided, can be caught. HC Ravinder Khokar produced the said informer before PW3 and on being satisfied with the said information, PW3 produced the said informer before Insp. Brijpal and after being satisfied, Insp. Brijpal passed on the said information in the office of ACP, R.K. Ojha, Narcotic Cell who directed to take necessary action. PW3 recorded the said information vide DD No.11, copy of which is Ex.PW3/A in compliance of section 42 NDPS Act and produced the same before Insp.Brijpal who forwarded the same to Sr. Officer. Thereafter, PW3 prepared a raiding party comprising of PW3, HC Ravinder Khokar, Ct. Pawan and HC Ravinder Malik and they, at about 2.30 pm alongwith secret informer & after collecting IO bag, field testing kit and electronic weighing scale, left the office in a private car no.DL3C CB 2362 FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.16 of 46 being driven by Ct. Pawan. PW3 lodged DD No.12 and via Shanti Van Chowk, Geeta Colony Flyover, Akshardham Metro Station, Mayur Vihar Metro Station and via Chilla Village, they reached 32 Block Trilokpuri at about 3.20 pm. On the way, PW3 requested 4 public persons each at Akshardham bus stand and Mayur Vihar Bus stand to join the raiding team after revealing them about secret information but none agreed and left the place without giving their names and addresses. PW3 briefed all the members of raiding team at the spot in detail. The car was parked about 1012 meters ahead of the park and members took the position at the gate of park. PW3 requested public persons at the spot also to join the proceedings/raiding team but none agreed and left the spot without giving their names and addresses. He further deposed that at about 3.25 pm, the secret informer pointed out towards the person who was coming from the side of Chilla Village and told that the said person was Jitender about whom he had given information. After pointing out, the secret informer had left the spot and the said person was apprehended with the help of staff at about 3.30 pm. PW3 interrogated him who disclosed his name as Jitender. Ct. Pawan along with the car was called and accused was apprised about the information that he might be in possession of heroin and in this regard his search was to be conducted. Accused was informed about his legal rights that his search can be taken in the presence of Gazetted Officer or Magistrate or that he can take search of any member of raiding team and of the car or that he can be produced FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.17 of 46 before the Gazetted Officer in this regard but the accused refused for the same. PW3 prepared notice u/s 50 NDPS Act and served the same to accused, carbon copy of the notice is Ex.PW1/A. Accused recorded his refusal in his handwriting on the back side of the notice which is Ex.PW2/A. PW3 searched accused Jitender Kumar and the black colour polythene was taken from his right hand and it was checked and was found containing one transparent polythene containing bhura colour powder. Some powder was taken out from the said transparent polythene after removing the rubber band and it was tested on field testing kit and was found to be heroin. PW3 weighed the recovered heroin along with transparent polythene prior to taking samples and its weight was found to be 500 grams. PW3 drew two samples of 5 grams each from the recovered heroin and the same were kept in two small transparent polythene and the same were given Mark A and B and were converted into cloth parcels. Remaining 490 grams heroin was kept in the said transparent polythene and it was converted into cloth parcel and was Marked C. All the parcels were sealed with the seal of 3 CPS/NB DELHI and the seal after use was handed over to HC Ravinder Khokar. PW3 filled up Form FSL at the spot and it was also affixed with the same seal. All the parcels were taken into possession vide seizure memo Ex.PW1/B. PW3 prepared a tehrir Ex.PW3/B and it was handed over to Ct. Pawan along with all the sealed parcels, FSL form and carbon copy of seizure memo with directions to hand over the rukka to Duty Officer and the parcels etc to the SHO. He further deposed FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.18 of 46 that at about 12.15 am midnight, ASI Sanjay Tyagi came at the spot to whom he handed over the custody of accused Jitender. ASI Sanjay Tyagi prepared site plan Ex.PW3/C. He interrogated and arrested the accused Jitender vide arrest memo Ex.PW2/B and conducted his personal search vide memo Ex.PW2/C. In his personal search, original notice u/s 50 NDPS Act, cash Rs.430/, Adhaar card and RC of two wheeler, were recovered. His disclosure statement Ex.PW2/D was also recorded. Thereafter, they left the spot and accused Jitender was produced before the Insp. Brijpal who satisfied himself about the arrest of accused. He further deposed that on 08.10.2018, HC Ravinder Khokar returned the seal to him vide handing over memo Ex.PW2/E. PW13 ASI Sanjay Tyagi produced report u/s 57 NDPS Act before Insp. Brijpal which is Ex.PW7/C. On 08.10.2018 case property was got deposited in FSL, Rohini through Ct. Pankaj for chemical analysis. PW13 further deposed that accused Virender @ Pichka surrendered and he was arrested vide memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D. His disclosure statement is Ex.PW1/E. PW13 obtained the PC remand of accused Virender and he disclosed the name of source of contraband as Javed but Javed could not be traced. PW13 collected the FSL result which is Ex.PW13/B. Notice u/s 50 recovered in the personal search of accused is Ex.PX.
18. Ld. Counsel for the accused stated that the IO of this case has not associated any public witness in this case. However, FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.19 of 46 Ld. Addl.PP stated that there is no need to associate any public witness as the testimonies of police officials are straight forward regarding recovery of heroin from the accused. He submitted that testimonies of police officials cannot be disbelieved. Accused was apprehended on the basis of secret information. Admittedly, there is no public witness of recovery effected from the accused and all the recovery witnesses are police officials. The place of apprehension as per site plan Ex.PW3/C is 32 Block, Trilokpuri, Delhi. PW1 Ct Pawan stated that on the way to the spot, ASI Dushyant had requested four public persons each at Akashardham bus stand, Mayur Vihar bus stand after revealing them about secret information but none agreed and left the place without giving their names and addresses. He further stated that IO had requested the public persons at the spot also to join the proceedings/raiding team but none agreed and left the spot without giving their names and addresses. In cross examination, he stated that no notice was given to the public persons who refused to join the proceedings. IO had not recorded the reason for not joining the proceedings. He cannot tell the religion of those public persons by their physical appearance and clothing. IO had not requested any public persons to join the proceedings after apprehension of the accused Jitender. PW2 HC Ravinder Khokhar stated that IO had requested public persons at the spot to join the proceedings but none agreed and left the spot without giving their names and addresses. In cross examination, he stated that he cannot tell the physical description, colour and nature of cloths or age of FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.20 of 46 those public persons who had refused to join the raiding party. No notice was given to those public persons due to paucity of time. He cannot tell the religion of those public persons by the clothes and physical appearance.. There were residential houses near the place of apprehension. ASI Dushyant had requested several public persons of the residential area to join the proceedings before apprehension of the accused but none agreed. No notice was given to them due to paucity of time. PW1 Ct. Pawan stated that IO had not requested any public person to join the proceedings after apprehension of the accused Jitender. PW3 ASI Dushyant has stated that he requested public persons, on the way as well as at the spot to join the raiding team but none agreed and left away without telling their names and addresses. In cross examination, he has stated that he cannot tell the physical description, colour and nature of cloths or age of those public persons who had refused to join the raiding party. No notice was given to those public persons due to paucity of time. He cannot tell the religion of those public persons by the clothes and physical appearance. There are residential houses near the place of apprehension. He had requested several public persons of the residential area to join the proceeding before apprehension of the accused but none agreed. No notice was given to them due to paucity of time. He had not requested the public persons of the area of join the investigation after apprehension of the accused. He admitted that near the Hotel Grand Plaza,there is govt. office of DSIDC but no member of the raiding party had visited the above FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.21 of 46 said office to procure the presence of govt. employee or gazetted officer from that office due to paucity of time. He had not requested the gazetted officer from the said offices even after the apprehension of the accused despite having sufficient time.
19. Ld. Counsel has submitted that there is no public witness of recovery. Admittedly, all the three recovery witnesses are police officials. According to them, public persons were requested to join the investigation but they refused. They have stated in cross examination that near the spot, there was govt.office of DSIDC. PW3 IO/ASI Dushyant has admitted that no public person was called from there. PW3 deposed that the raiding party reached the spot at about 3.20 p.m and accused was apprehended at 3.30 p.m. The accused was arrested at about 1.30 a.m. Thus, the police officials remained at the spot for about 7 hours but no public person was made to join the proceedings from the beginning till the end. No names and addresses of the public persons who did not join the investigation have been recorded.
20. No public person has been joined in the present case but discarding the prosecution case on this score alone would not be appropriate as it is well settled law that testimonies of the police officials can be relied upon even where no public witness was joined to the investigation.
FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.22 of 46
21. In Sunil Tomar Vs. State of Punjab, Criminal Appeal no. 16901691 of 2012 decided on 19.10.12, it was held : 'In a case of this nature, it is better if prosecution examines atleast one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case.
In view of the above discussions, we hold that though, it is desirable to examine an independent witness, however, in the absence of such witness, if the statements of police officials are reliable and when there is no animosity established against them by the accused, the conviction based on their statements cannot be faulted with'.
22. In Rohtas Vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that : 'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.23 of 46
23. In Gian Chand Vs. State of Haryana, Crl.Appeal no. 2302/10 dated 23.07.2013, it was held that : 'Mere nonjoining of an independent witness where the evidence of the prosecution witnesses may be found cogent, convincing, credit worthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants'.
24. In view of the above case laws, mere nonjoining of public witnesses in this case would not be fatal to the case of the prosecution.
25. Another submission of Ld. Counsel is regarding compliance of section 42 of NDPS Act. Ld.Counsel submits that the DD cannot be treated as an information to ACP. In the present case, PW2 HC Ravinder Khokhar had received the secret information about accused coming to his house with heroin and if nakabandi is made near his house, he can be apprehended. PW2 took the informer to ASI Dushyant (PW3) who after satisfying himself, passed on the information to Insp. Brijpal and Insp. Brijpal gave information to ACP, R.K.Ojha. PW3 recorded the information in compliance of Section 42 NDPS Act and produced the same before Insp. Brijpal who forwarded the same to Sr.Officer. PW9 Insp. Brijpal Singh has corroborated the version of PW3 regarding recording of the information in DD no.11 Ex.PW3/A and producing the same before FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.24 of 46 Inps. Birjpal as well as that he (PW9) forwarded the same to the Senior Officers. In the office of ACP, PW7 HC Devender received the said DD. He also produced the same before ACP. The prosecution has proved entry Ex.PW7/A in diary register regarding receipt of said DD. PW8 Sh RK Ojha has stated that ASI Dushyant Kumar lodged DD no.11 regarding the secret information and produced copy thereof before him. Ld. Counsel submitted that copy of DD was not produced by ASI Dushyant before PW8 but it was produced by the reader of ACP. Perusal of the DD reveals that the said DD no.11 was recorded by ASI Dushyant (PW3) who forwarded to Insp. Brijpal (PW9). PW9 forwarded the DD to the office of ACP where it was produced before the ACP by the reader. Thus, there is no merit in the said submission. In cross examination, PW3 has stated that Insp. Brijpal passed on the secret information to ACP R.K.Ojha but he does not know the mode of information. The first entry regarding secret information was lodged in DD register by him at about 2 p.m. No suggestion has been put to PW3 in the cross examination that he has not lodged DD no.11 in question or that the same was not sent to the office of ACP. Also, no suggestion has been put to PW8 ACP R.K.Ojha that no DD no.11 was not produced before him. Perusal of DD no.11 Ex.PW3/A shows that it was lodged by ASI Dushyant Kumar who forwarded the same to Insp. Brijpal and then the said DD was received in the office of ACP vide entry no.1681 and placed before the ACP. The signatures of ACP are also appended on the said DD. Thus, there is corroborative FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.25 of 46 evidence in respect of lodging of DD as well as sending the same to Senior Officer i.e. ACP (PW8). Perusal of the cross examination of PW8 Sh. RK Ojha, ACP show that no suggestion has been put to him that DD no.11 was not received by him or that he did not put his initials on it. Even no suggestion has been put to PW3 ASI Dushyant that he did not lodge any DD with regard to the secret information and did not send the copy thereof to the senior officer or that the DD allegedly lodged is antedated. DD no.11 Ex.PW3/A was written by ASI Dushyant (PW3) on 04.10.2018. The DD finds mention about receipt of secret information at about 1.00 p.m that accused Jitender used to supply heroin in Delhi and that he will come to his house with heroin in between 3.00 p.m to 4.00 p.m and if nakabandi is made, he can be apprehended. The said DD bears the signature of ASI Dushyant Kumar, Insp. Brijpal and Sh.RK Ojha ACP, N&CP. It also bears entry no.1681 made by PW7. Thus, it is clear that DD no.11 with regard to secret information was lodged and it was received in the office of ACP, N&CP. Ld.Counsel submits that only DD no.11 was sent to the office of ACP, N&CP and that there is no separate information sent in this respect. The submissions of Ld. Counsel has no force as the information received by PW3 ASI Dushyant was recorded in the DD and same DD was sent to the senior officer i.e. ACP,N&CP. Further, information was received at 1.00 p.m and accused was to come in between 3 to 4 p.m. Considering the same there was emergent situation and thus, recording of DD and sending the copy thereof to the office of ACP, FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.26 of 46 N&CP is sufficient compliance of section 42 of NDPS Act.
26. Ld. Counsel further argued that there is no compliance of section 50 of NDPS Act in this case as the accused was not produced before any Gazetted Officer. It was stated that PW1 has not deposed as to whether accused has put his reply on the notice or original or carbon copy and PW2 stated regarding mentioning of search of IO bag etc in the notice but again said that it was not mentioned in the notice and he also stated that he does not remember whether the accused had mentioned the date below his signature and thus, there is contradictory version in this respect. It is also submitted that PW1 could not state as to whether the accused had put his reply on the notice or original or the carbon copy of the notice. In regard to the service of notice u/s 50 NDPS Act., PW3 stated that he prepared notice u/s 50 NDPS Act and gave it to the accused. Carbon copy of the notice is Ex.PW1/A. Accused recorded his refusal in his handwriting on the back side of the notice which is Ex.PW2/A. PW3 also apprised the accused about his legal right that his search can be taken in the presence of Gazetted Officer or Magistrate, if he so desired or that he can take search of any member of the raiding team and the car or that he can be produced before the Gazetted officer, if he so desire but he refused. Thereafter, he searched accused Jitender who was having a black colour polythene in his right hand which was taken by him and it was checked and was found containing one transparent polythene containing bhura FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.27 of 46 colour powder. Some powder was taken out from the said transparent polythene after removing the rubber band and it was tested on field testing kit and it was found to be heroin. The carbon copy of the notice is Ex.PW1/A and reply of the accused is Ex.PW2/A. Section 50 NDPS Act affords protection to a person in matters concerning "personal search" and it stipulates various safeguards. In the matter of State of Punjab Vs. Baljinder Singh & Anr., Criminal Appeal No. 156566 of 2019, it has been observed in para 16 that as regards applicability of requirements u/s 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises". Further, bare reading of Section 50 NDPS Act shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. Considering the above position of law and reverting back to the facts of the present case, it has been stated by PW3 ASI Dushyant as well as PW1 Ct. Pawan and PW2 HC Ravinder Khokhar that accused Jitender was having a black colour polythene in his right hand which was taken by PW3 and it was checked and was found containing one transparent polythene containing bhura colour powder and on checking the same on field testing kit, it was found to be heroin. Thus, the recovery in the present case was effected from the polythene held by the accused in his hand and not from his person. Thus, application of section 50 FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.28 of 46 NDPS Act does not attract in the present case.
27. As far as compliance of Section 55 NDPS Act is concerned, PW1 Ct. Pawan deposed that IO prepared a tehrir and handed it over to him alongwith all the sealed parcels, FSL form and carbon copy of the seizure memo and he left the spot at about 7.30 p.m and he was directed to hand over the rukka to DO and the parcels etc to SHO and accordingly, he handed over the parcels etc. to SHO at about 9.40 p.m. PW12 Insp. Satender Sangwan stated that Ct. Pawan came to his office at about 9.40 p.m and produced three white cloths sealed pullandas with the seal of 3CPS NB Delhi, seizure memo and FSL form. He put his seal of SS on all the pullandas and FSL form. He also mentioned the FIR number on all the parcels and FSL form copy of seizure memo. He called the MHCM and deposited the said parcels in the malkhana. The version of PW12 has been corroborated by PW11 ASI Jag Narain regarding deposit of parcels in the malkhana by PW12. Thus, there is corroborative evidence with regard to carrying of case property from the spot to PS and then depositing the same in the Malkhana. The copy of Malkhana Register is Ex.PW11/A. I have perused the same. Perusal of the same revealed that PW12 the then SHO Insp. Satender Sagwan has duly signed the said entry. It is an admitted fact that no separate DD entry with regard to deposit of case property is available on record. Since there is corroborative evidence regarding carrying of case property to PS and then deposit of the FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.29 of 46 same by PW12 in the malkhana as also since the entry Ex.PW11/A has been duly signed by PW12 SHO/Insp. Satender Sagwan therefore, this Court is of the view that there is no need to separately file DD entry in this respect. Thus, there is sufficient compliance of Section 55 of NDPS Act in this case.
28. PW13 ASI Sanjay Tyagi has deposed that he produced the report u/s 57 NDPS Act before Insp. Brijpal which is Ex.PW7/C. PW7 HC Devender stated that on 05.10.2018 reports u/s 57 NDPS Act prepared by ASI Dushyant and ASI Sanjay were received in their office vide DD no.1687 and 1688 and he produced the same before ACP RK Ojha who has seen the same. The reports are Ex.PW7/B and Ex.PW7/C. Both the reports with regard to arrest and recovery of contraband are available on file. Ld. Counsel has submitted that PW13 has admitted that there is no mention regarding preparation of site plan, personal search of the accused and about disclosure statement in his report u/s 57 NDPS Act. Report u/s 57 NDPS Act prepared by PW13 ASI Sanjay Tyagi is the report regarding arrest of the accused where there was no need to mention regarding preparation of site plan, personal search and about disclosure statement of the accused. However, perusal of the said report reveals that IO has mentioned that he prepared site plan at the instance of ASI Dushyant Kumar, interrogated and arrested the accused Jitender Kumar, statements of witnesses were recorded and personal search articles of accused were deposited in the malkhana.
FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.30 of 46 Thus, it is clear that report finds mention about preparation of site plan, interrogation of accused and personal search articles. Thus, the submission of Ld. Counsel is of no consequence.
29. In the present case, PW13 produced the report u/s 57 NDPS Act before Insp. Brijpal which is Ex.PW7/C. PW9 Insp. Brijpal Singh has stated that ASI Dushyant and ASI Sanjay Tyagi had produced the reports u/s 57 NDPS Act which are Ex.PW7/B and Ex.PW7/C which he forwarded to ACP. The prosecution has also examined PW7 HC Devender who was working as Reader to ACP and who had received the said reports. He stated that he entered the same in diary register at sr.no.1687 and 1688 and he produced the said reports before ACP. The prosecution has also examined PW8 Sh. RK Ojha, the then ACP and he has stated that the said reports were produced before him. Thus, there is corroborative evidence in this case regarding reports u/s 57 NDPS Act. The said reports bears the signatures of ACP. This Court has also perused the cross examination of these witnesses. No suggestion has been put either to PW7, PW8 or PW13 that the said reports are ante dated. Considering the evidence on record, it is emphatically clear that PW3 and PW13 prepared the reports and sent the same to Insp. Brijpal who forwarded the same to the office of ACP. The date of recovery of contraband is 04.10.2018 and PW3 ASI Dushyant and PW13 ASI Sanjay Tyagi prepared the reports Ex.PW7/B and Ex.PW7/C on 05.10.2018 which were received in the office of ACP, FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.31 of 46 the Senior Officer on 05.10.2018 itself. Thus, there is corroborative evidence regarding report u/s 57 NDPS Act in this case. There is no delay in sending the reports to the office of Senior Police Officer in this case. In view of the above, there is sufficient compliance of section 57 of NDPS Act in this case.
30. Ld. Counsel has submitted that informer has not disclosed the specific route on which suspect was likely to come and PW3 has also deposed similarly in this respect. He submitted that there was no question of apprehension of the accused at the spot as the spot can be approached through different routes. In cross examination, PW1 has stated that the nakabandi was held at the instance of secret informer. The spot is situated in 32 block Trilokpuri. PW2 has stated in cross examination that the place of nakabandi was told by the secret informer and he had also told that at that particular place, accused would be apprehended. He further stated that secret information disclosed in their office that the accused would come on the road on which accused was apprehended. PW3 has also stated in cross examination that the place of nakabandi was told by the secret informer and he had also told that at that particular place, accused would be apprehended. He further stated that the secret informer had not disclosed in their office that the accused would come on the road on which accused was apprehended. Ld. Counsel submitted that some of the witnesses have stated that secret informer had disclosed about accused coming FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.32 of 46 to the spot and some witnesses have not stated so. This submission of Ld. Counsel is of no consequence as the secret informer was with the police team during the course of raid and after pointing out the accused, he left the spot. As per evidence on record, the place of nakabandi was also told by the secret informer. The house of the accused is located in 32 block, Trilokpuri and as per secret information, accused was to come to his house with heroin. As per rukka, accused was apprehended in the Block 32 Trilokpuri, Delhi on the pointing out of secret informer. Thus, the submissions of Ld. Counsel has no merit.
31. Another contention of the Ld. Counsel is that as per PWs, heroine was procured from one Salman but this fact is not mentioned in the DD no.11. It is also submitted that parentage and residence address of the Salman has not been disclosed. There is no evidence as to when the contraband was taken from Salman or about the price paid by him to Salman. Perusal of DD no.11 Ex.PW3/A revealed that the name of Salman as source is not mentioned in the said DD. This information was recorded as per the version of Secret Informer. The name of Salman came in the evidence recorded before the Court. It has been stated by PW1, PW2 and PW3 about coming of accused Jitender to his house in between 3 to 4 p.m after procuring heroin from Salman. In cross examination, PW2 & PW3 stated that informer had not disclosed the parentage and residence address of accused Salman. The secret informer has not disclosed as FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.33 of 46 to when accused Jitender had taken the contraband from Salman or about the price paid by him to Salman. In the instant case, the prosecution has to prove the recovery of contraband and thus, non disclosing of the name of supplier in the documents would not weigh in favour of the accused.
32. It was further contended by the Ld. Counsel that PW2 has specifically stated that no entry was made with regard to issuance of IO bag and electronic weighing machine. He further stated that the size of the bag was stated to be 1½ x1 feet and that weighing machine and other material cannot fit in the said size. Ld.Counsel submitted that the seal was not issued to IO on the date of recovery. PW2 in his statement has deposed that ASI Dushyant has got issued the field testing kit, IO bag and weighing machine from the MHCM and no entry was made in this regard in his presence. PW3 ASI Dushyant has also stated that he got issued the same from the MHCM. PW4 ASI Mahesh Chand who was working as MHCM has deposed that on 06.10.2017, he had issued seal bearing 3CPS/NB DELHI to ASI Dushyant Singh and he made entry at sr.no.19 which is Ex.PW4/A. ASI Dushyant returned the seal on 15.11.2018. It is relevant that the seal in question was issued to PW3 much prior to the date of raid in this case. The seal was returned by PW3 on 15.11.2018. It is crystal clear that the seal was in possession of PW3 on the date of raid. Further PW4 stated that on 04.10.2017, ASI Dushyant had taken electronic weighing machine FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.34 of 46 at 2 p.m and he made entry at sr. no.57. The said weighing scale was returned on 05.10.2018 by ASI Dushyant and he made entry in register no.19. Copies of the entry is Ex.PW4/B. This court has perused the entries regarding issuance of electronic weighing machine as well as entry with regard to issuance of seal. Both the entries have been made in the register and said entries have been duly proved. Thus, there is no question of doubting about issuance of electronic weighing machine as well as seal in question to PW3 ASI Dushyant. The submission of Ld. Counsel that the seal was not issued on the date of recovery is of no consequence.
33. It has come in the cross examination of PW1 that he does not know whether the field testing kit, weighing machine and other material was kept in the IO bag. No other evidence is there on the file regarding keeping the said articles in the IO bag. Thus, there is no evidence that the fielding testing kit, weighing machine and other material were kept in the IO bag and therefore, submission of Ld. Counsel that the said articles cannot fit in bag of size 1½ x1 feet is of no consequence.
34. Ld. Counsel submitted that the accused was not offered the search of the field testing kit and electronic weighing machine to the accused. He submitted that the contraband has been falsely planted upon the accused. In the present case, there is recovery of 500 grams heroin from the accused. The recovery is in the nature of FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.35 of 46 commercial quantity. It is highly improbable for the police to falsely plant such a huge quantity upon the accused. PW3 ASI Dushyant has stated that accused was informed about his legal rights that his search can be taken in the presence of Gazetted officer or Magistrate, if he so desired or that he can take search of any member of the raiding team and of the car or that he can be produced before the Gazetted Officer but accused has refused. Though PW3 has stated in cross examination that he had not offered the search of IO bag, field testing kit and electronic machine to the accused but offering the search of the above is of no consequence since PW3 has clearly stated that the accused was offered to take search of any member of the raiding team and of the car of the police. Offering search of members of the raiding team as well as vehicle of the police was sufficient compliance in this case. Furthermore, as already discussed provisions of Section 50 NDPS Act does not apply in the present case as recovery was effected from a polythene held by the accused in his hand.
35. Ld. Counsel for the accused has pointed out that HC Ravinder and Ct Pawan were called by ASI Dushyant in his office at about 1.45 p.m but in cross examination, he stated that they all were present in their office in the same room while PW2 HC Ravinder stated that he took the informer before ASI Dushyant and informed him about the information. He also submitted that PW2 and PW8 have stated that the secret informer was not produced before ACP FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.36 of 46 but PW3 stated that he was produced before ACP. Contradictions have also been pointed out with regard to preparation of site plan and that position of members of raiding team have not been mentioned in the site plan and that location of the car is also not shown. It is also pointed out that PW1 stated that FSL form was of two pages but he does not know if it was hand written or typed and how many columns were there. PW2 stated that FSL form was in two sheets and it was a printed proforma, he cannot tell the number of columns while PW3 stated that he does not remember whether the FSL form was in one sheet or two sheets but he filled up the columns. PW12 stated that he does not remember the number of pages in which the FSL form was written. Ld. Counsel also pointed out contradictions in the testimonies of witnesses with regard to signatures of the wife of accused on the arrest memo. He also pointed out that PW7 could not tell the time when the entries were made in diary register regarding receipt of documents and that PW3 stated that he produced the DD before Insp.Brijpal who forwarded to senior officer. It is well settled law that the contradictions of trivial nature cannot be given much weightage. This Court has gone through the said submissions of the Ld. Counsel. On perusal of the evidence on record, this Court is of the view that the contradictions pointed out by the Ld. Counsel are of trivial in nature which can be natural and possible due to lapse of time and they do not go to the root of the case and these contradictions can be ignored in view of FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.37 of 46 the observation of case law Asha @ Ashananad & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155. Thus, these contradiction are of no consequence.
36. Ld. Counsel further argued that the fact about information of arrest is not mentioned in the chargesheet and thus, no family member of the accused was informed about the arrest of the accused. PW1 has stated in cross examination that he does not know if any family member of accused had come to the spot till his departure from the spot. PW2 and PW3 have stated that no family member of the accused came at the spot during the period they remained at the spot. PW13 has deposed that wife of the accused came at the spot and he obtained her signatures in column no.9 of the arrest memo. It is an admitted fact that PW13 had arrested the accused and he obtained her signature in column no.9 of the arrest memo. PW1 took the rukka to PS and PW2 and PW3 were the member of raiding party and they remained at the spot but the further investigation was conducted by PW13. The arrest memo Ex.PW2/B bears the name of Smt. Sangeeta (wife) of accused with her mobile number. It has not been disputed that signature and the mobile number mentioned in column no.9 do not belong to the wife of the accused. Thus, this court is of the view that the family member of the accused was duly informed about the arrest of the accused in this case.
FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.38 of 46
37. Another submission of Ld. Counsel is that sample of 5 gram was drawn but when received at FSL it was found to be 5.46 grams and thus the sample is tampered with. As per statement of PW3 he had drawn two samples of 5 grams each from the recovered heroin. No question has been put to PW3 that he did not mix the contraband before taking sample. He converted the same in two pullandas and given Mark A and B. He sealed all the pullandas with the seal of 3CPS NB DELHI. The total weight of the heroin was found to be 500 grams out of which samples of 5 grams were drawn. However, when received at FSL, it was found to be 5.46 grams. It is an admitted fact that only sample of 5 grams was drawn. Thereafter, it was also kept in transparent polythene and converted into cloth parcel. FSL result Ex.PW13/B reveals that cloth parcel was received there. Thus, transparent polythene and the cloth also have some weight. Hence, there is no discrepancy with regard to the weight of the sample taken, sent and received at FSL.
38. Ld. Counsel has argued that the case of the prosecution is not believable as coaccused Virender @ Pichka is stated to be the source of contraband who had handed over the same to accused Jitender Kumar at the red light of Hotel Crown Plaza. It is stated that both the accused Jitender and Virender are real brothers and being brother, he could have handed over the heroin in the house. In the disclosure statement Ex.PW2/D, accused Jitender disclosed that he has taken the heroin from Virender @ Pichka who further procured FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.39 of 46 from some 'Sahansi'. The heroin is stated to have been handed over to accused Jitender at the red light of hotel Crown Plaza. Both the accused are stated to be the real brothers. However, perusal of the record reveals that the address of Jittender is 32/216 Trilokpuri, Delhi and address of accused Virender @ Pichka is 32/210, Trilokpuri, Delhi. Thus, address of both the accused are different and it can be said that they both were residing separately in the same locality. It seems that it was the modus operandi of the accused persons to procure and hand over the heroin at some other place. PW13 has stated that accused Virender has disclosed the name of Javed as source of contraband who could not be traced out. Thus, the main source could not be traced in this case. It has also been stated by the Ld. Counsel that the prosecution witnesses have deposed the name of Salman as source of supply. In the present case, the prosecution was required to prove the recovery for which it has discharged its duty by leading the cogent and reliable evidence as the main source of supply never come in picture. Thus, it is not of much relevance as to who was the actual source of supply of the recovered heroin.
39. Record reveals that due procedure was followed by IO. The secret information itself was recorded and communicated to ACP. The DD entry which was sent to ACP and produced before him has been proved by the corroborative evidence of PW7, PW8 PW9 and PW13. PW3 deposed that he recorded the secret FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.40 of 46 information vide DD No.11 Ex.PW3/A and produced the same before Insp. Brijpal who further forwarded the same to Sr.Officer. PW9 Insp. Brijpal deposed that copy of DD no.11 was handed over to him which he forwarded to senior officer in compliance of section 42 of NDPS Act. PW7 HC Devender, Reader to ACP Narcotics has proved the receipt of DD No.11 Ex.PW3/A in the office on 05.10.2018 vide entry at sr.no.1681 Ex.PW7/A and reports u/s 57 NDPS Act vide entry at sr.no. 1687 and 1688 which are Ex.PW7/B and Ex.PW7/C. The copy of register with regard to entry no.1687 and 1688 is Ex.PW7/D. The prosecution has also proved that after arrest, the reports regarding the seizure as well as arrest of accused were prepared by respective IOs and the same were sent to ACP through Insp. Brijpal. Preparation and sending of DDs have not been challenged in the cross examination of PW3. PW9 has not been questioned regarding forwarding of DD to ACP office. Thus, nothing concrete has come in the cross examination of Reader. The documents were received in the ACP Office within 24 hours.
40. The three recovery witnesses of prosecution, with their corroborative evidence have proved that they had gone to the spot in private car bearing registration no.DL3C CB 2362 alongwith driver Ct.Pawan and secret informer and waited there for the accused before his arrival and accused was pointed out by the secret informer and apprehended at about 3.30 p.m. Though the provisions of Sec.50 NDPS Act does not apply to the present case however, the FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.41 of 46 prosecution has proved through evidence of PW1 Ct. Pawan, PW2 HC Ravinder Khokhar and PW3 ASI Dusyant that notice u/s 50 NDPS Act was given to the accused who was explained that he has a legal right to get himself searched in the presence of Gazetted Officer/Magistrate. He was informed about the secret information which the IO had with him. The notice is Ex.PW1/A. Refusal of the accused has been mentioned by him at the back side of the notice duly signed by him. Search of black colour polythene was conducted by PW3. It has come in evidence that bhura colour powder was recovered from the said polythene. The witnesses have deposed that the substance was checked with the help of field testing kit and it was found to be heroin. Cross examination of recovery witnesses on this aspect has not yielded anything material. The witnesses have categorically stated that the case property was weighed and total quantity was found to be 500 grams. The prosecution has successfully proved the recovery of 500 grams of heroin from the possession of accused which was tested by field testing kit at the spot itself. The testimonies of witnesses with regard to recovery of 500 gram heroin from the accused could not be shattered in the cross examination. The recovery witnesses have deposed about the drawing of samples and preparation of pullandas. The witnesses have been cross examined but has not yielded anything substantial which could help the accused. The witnesses have thus, proved that two samples were drawn and put in pullandas Mark A and B and seal of 3CPS NB DELHI was put on them and FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.42 of 46 remaining heroine was put in a pullanda Mark C. The prosecution has proved through the testimony of PW4 ASI Mahesh Chand that the weighing scale was issued to ASI Dushyant Singh on 04.10.2018 vide entry Ex.PW4/B and that he had also been issued seal with nomenclature 3CPS NB Delhi on 06.10.2017 vide entry Ex.PW4/A. There is no reason to disbelieve that weighing scale was not issued to PW3 on 04.10.2018 and that the seal was not issued to him on 06.07.2017 as the entries bears the signatures of PW3 alongwith other entries. It has been proved on record that FSL form was filled up and seal impression of 3CPS NB DELHI was also put on it. PW12 Insp.Satender Sagwan confirmed that pullandas Mark A , B and C when produced before him had seal of 3CPS NB DELHI on them and he had put his seal of SS on each of the pullandas as also on the FSL form. PW11 ASI Jagnarain corroborated the evidence of Insp. Satender Sangwan and stated that he was handed over the pullandas and form FSL which had the seal of 3CPS NB DELHI and SS on them. According to PW1, he reached the SHO room at about 9.30 p.m. It is thus, proved that the samples and case property sealed by ASI Dushyant had reached the malkhana on 04.10.2018 with intact seals. The sample was sent to FSL through PW5 Ct.Pankaj vide RC no.567/21 Ex.PW11/C on 08.10.2018. Receipt issued by FSL is Ex.PW11/D. Thus, the case property reached FSL within the prescribed time. There is absolutely no delay in sending the case property to FSL. The case property was sealed with the seals of 3CPS NB DELHI and SS and as per FSL result Ex.PW13/B, FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.43 of 46 sample parcel was bearing the same seals. Thus, it is proved that the seals remained intact and tallied with specimen seal till it reached FSL and opinion on sample Ex.A given by FSL is that it contained diacetylmorphine.
41. On evaluation of the testimonies of the prosecution witnesses who are the members of raiding party i.e. PW1 Ct. Pawan, PW2 HC Ravinder Khokhar and PW3 ASI Dushyant, it stands proved that they remained consistent and confident in their deposition and no infirmity or discrepancy has emerged during their cross examination. No contradiction favouring the defence of the accused has come out in cross examination of the witnesses. There is no reason to discredit the credibility and reliability of the witnesses. It stands proved that the proceedings have been conducted meticulously and in compliance of the Act.
42. In the statement of accused u/s 313 Cr.P.C, the accused has taken the defence that he has been falsely implicated in this case, nothing was recovered from his possession and that he was lifted from his house and contraband was planted upon him. The accused has not led any evidence to prove his defence that he has been falsely implicated after lifting from his house or that no recovery was effected from him. Accused has not placed any complaint on record to prove that he has been falsely implicated. The defence therefore, appears to be an afterthought and is not acceptable. FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.44 of 46
43. In the present case, vide order dated 17.05.2019 accused Virender @ Pichka was discharged for the offence u/s 29 NDPS Act, however, charge u/s 174A IPC was framed against him. Ld. Counsel submitted that the accused Virender was not properly served and that the proceedings were not conducted appropriately against him.
44. Perusal of the record reveals that the name of accused Virender @ Pichka was disclosed by accused Jitender in his disclosure statement and thereafter, he evaded his arrest. NBWs were issued against the accused on 10.12.2018 and thereafter, proceedings u/s 82 Cr.P.C were issued against him on 24.12.2018. Report on NBWs shows that accused was absconding and evading his arrest. Accused did not appear before the court despite issuance of proclamation u/s 82 Cr.P.C against him at the address 32/200, Trilokpuri, Delhi. Statement of CW1 ASI Sanjay Tyagi was recorded regarding conducting of proceedings u/s 82 Cr.P.C and his report is Ex.CW1/A. He also stated regarding conducting the proceedings u/s 82 Cr.P.C while his statement was recorded as PW13. Thereafter, accused was declared proclaimed offender in this case. Accused has taken the stand that he does not know about issuance of NBWs and proceedings u/s 82 Cr.P.C against him. Accused has not disputed the correctness of address mentioned on the NBWs and proceedings u/s 82 Cr.PC. Thus, it is clear that the FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.45 of 46 proceedings u/s 82 Cr.P.C have been conducted at the correct address of the accused and thus, accused must be aware about the same. Hence, this court is of the view that proceedings were conducted appropriately and accused knowingly evaded his arrest and he willfully failed to comply the directions issued vide proclamation u/s 82 Cr.P.C and thus, he was declared proclaimed offender in this case. Accused has also not led any evidence to prove his defence. Thus, accused Virender is guilty of the offence u/s 174 A IPC.
45. In view of my aforesaid discussions, I am of the view that prosecution has been able to prove its case against the accused Jitender Kumar beyond doubt for the offence u/s 21(c) NDPS Act and accused Virender @ Pichka u/s 174A IPC. Thus, accused Jitender Kumar is convicted u/s 21 (c) of NDPS Act and accused Virender @ Pichka is convicted u/s 174A IPC.
Announced in the open AJAY
Digitally signed by
AJAY GUPTA
Location:
court on 18.12.2020 GUPTA
Karkardooma Court
Date: 2020.12.18
16:27:30 +0530
(AJAY GUPTA)
Special Judge (NDPS)
KKD COURTS, DELHI.
FIR No. 253/2018 State Vs. Jitender Kumar etc Page No.46 of 46