Delhi District Court
State vs Rehman @ Jiyaurehman on 2 June, 2015
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE (NDPS) KARKARDOOMA COURTS,
DELHI.
Unique ID No. 02402R0100872011
Sessions Case No. 49A/13
Date of Institution: 29.03.2011
Date of transfer to this court: 25.07.2013
Date on which reserved for orders: 25.05.2015
Date of delivery of order: 02.06.2015
State v/s Rehman @ Jiyaurehman
S/o Sh. Habibulah
R/o HNo.62, Ward No. 22,
Mirdhan Mohalla VPO & PS Faridapur,
Distt Barreilly, U.P.
FIR No. 172/10
PS. Crime Branch
U/s. 21/29 NDPS Act
JUDGMENT:
1. The prosecution case is that on 16/12/10 at about 10.00 am a secret informer came to narcotic cell and gave an information to SI Satyawan that one person namely Rehman R/o Sangam Vihar, Delhi, was indulged in bringing heroin from his village Faridpur and selling it in Delhi and he was likely to come at main gate of LBS hospital between 11.00 am to 11.30 am for supply of Heroin in large quantity to FIR No. 172/10, PS. Crime Branch Page 1of 32 St. Vs. Rehman @ Jiyaurehman some one. SI Satyawan produced the secret informer before Inspector Narcotic cell Vivek Pathak at 10.15 am, who satisfied himself about the secret information and informed ACP/ N & CP R.S. Manku through telephone. ACP R.S. Manku directed raid and necessary legal action. SI Satyawan wrote down the information for compliance of section 42 NDPS Act, which was produced before Inspector Narcotic cell. SI Satyawan constituted a raiding party consisting of himself, HC Mukesh Kumar, and HC Jogender Singh. The raiding party alongwith secret informer left in government vehicle no. DL1CH5839 driven by HC Sanjeev vide DD No. 15. The IO was carrying with him the IO Bag, field testing kit and electronic weighing machine. The raiding team went to spot via Pusta road, Shakarpur Chungi Flyover, Akshardham Flyover and reached the spot at about 11.05 am. On way SI Satyawan requested 56 passersby outside the Police Station Shakarpur and 4 persons at the spot to join the raiding party, however, all of them left without disclosing their names and addresses. At the spot, SI Satyawan directed the driver to park the vehicle at a distance of 50 meter and they all took their positions and started waiting. At about 11.10 pm one person who was wearing a blue jeans and colourful jersey was seen coming from Kalyan Puri side and was identified by the secret informer from a distance of 1520 meter as Rehman. Secret informer left the spot. The person came and stood at the main gate of hospital and waited for 34 FIR No. 172/10, PS. Crime Branch Page 2of 32 St. Vs. Rehman @ Jiyaurehman minutes. When he started to move, he was apprehended at 11.15 am. IO gave the introduction of raiding team. The person on enquiry told his name as Rehman S/o. Habib Ullah R/o H No. 13/13, Ratiya Marg, Sangam Vihar, Delhi, aged 22 years. SI Satywan told the secret information to him and said that his cursory search was to be conducted and that he had legal right to get his search conducted in presence of a Gazetted Officer or Magistrate and he also had a right to search the vehicle and police party. A notice u/s 50 NDPS Act was given to the accused, who wrote his reply on the notice in Hindi. SI Satyawan again requested 56 public persons to become part proceedings but they left without disclosing their names and addresses. Accused was searched by the IO and from the right pocket of his wearing jeans a black colour polythene tied with the rubber band was recovered. On opening the black polythene, one transparent polythene also tied with rubber band was found, which was containing matiala colour powder. The substance was tested on field testing kit and weighed on electronic weighing machine. It was found to be 320 gms of Heroin. Thereafter, two samples of 5 gms each were drawn. Two pullandas Mark A and B were prepared. Remaining Heroin was given mark C. FSL form was filled and pullandas were sealed with seal of 7APS NB Delhi, which seal was also affixed on the FSL form and seal thereafter was handed over to HC Joginder. The pullandas were seized; rukka was prepared, FIR No. 172/10, PS. Crime Branch Page 3of 32 St. Vs. Rehman @ Jiyaurehman proceedings u/s 55 NDPS Act were also completed. The pullandas, rukka, FSL Form and copy of seizure memo were sent to PS. The accused was produced before Inspector Kuldeep Singh, who conducted his own proceedings and recorded DD No. 14. Pullandas and documents were deposited with MHC(M). Further investigation was handed over to SI Rajveer Singh, who went at the spot; arrested the accused; prepared the site plan; conducted personal search of accused and recorded his disclosure statement. Both the IOs prepared their reports u/s. 57 NDPS Act and submitted them with Inspector Narcotic Cell. Sample A was sent to FSL and as per FSL report the sample was found to be of 9.91 % of diacetylmorphine. On the basis of disclosure made by accused Rehman, one Ajaybir @ Satbir was arrested from whose possession some slips were recovered and he was arrested u/s 29 NDPS Act. Charge sheet was filed u/s 21/29 NDPS Act.
2. Accused Ajaybir @ Satbir was discharged vide order dated 26/03/12; while charge u/s 21 (C) NDPS Act was framed against accused Rehman @ Jiyaur Rehman. He pleaded not guilty and claimed trial.
3. The prosecution examined 11 witnesses in support of its case.
4. PW5 HC Kewalanand was the duty officer. He proved the FIR No. 172/10, PS. Crime Branch Page 4of 32 St. Vs. Rehman @ Jiyaurehman registration of FIR No. 172/10 based on the rukka sent by SI Satyawan through HC Mukesh Kumar. The copy of FIR is Ex.PW4/A ( two witnesses have wrongly mentioned as PW4). He also made an endorsement on the rukka which is Ex.PW4/B. He also recorded the DD No. 12 regarding registration of FIR which is Ex. PW 4/C. In his cross examination the witness stated that the SHO was not present in the office as he had gone to the Court on that day. After about one one and half hour on the direction of Inspector Vivek Pathak the case was marked to ASI Rajveer Singh.
5. PW1 HC Jag Narain was MHC(M). He deposed that on 16.12.2010 he was posted in PS Crime branch as MHC(M). On that day he was called by Inspector Kuldeep Singh SHO Crime Branch with register no. 19 to his office. SHO handed over three parcels duly sealed with the seal of 7APS NB DELHI and KSY marked A, B and C, form FSL and carbon copy of seizure memo. SHO had put the FIR number on each pullanda and had signed the same. He made entry at serial No. 429. The photocopy of said entry is Ex.PW1/A. ASI Rajveer produced personal search articles of accused, which were deposited in malkhana against entry no. 430. Photocopy of which is Ex. PW 1/B. On 23.12.10 on the directions of SHO he handed over parcel mark A duly sealed with seal of 7APS NB DELHI and KSY to HC Mahesh Kumar, vide RC No. FIR No. 172/10, PS. Crime Branch Page 5of 32 St. Vs. Rehman @ Jiyaurehman 451/21 alongwith FSL form for depositing the same at FSL Rohini. Copy of RC is Ex.PW1/C and copy of receipt given by FSL is Ex.PW1/D. An endorsement was made in this regard against entry Ex. PW 1/A at point X. On 05.04.2011 result from FSL was received and he made an endorsement in this regard at point Y against serial no. 429. In his cross examination he stated that he did not remember the names of other officials present in the office of SHO when he made entry no. 429 and that he had not received any direction in writing regarding handing over of parcel for FSL.
6. PW 3 HC Mahesh Kumar has corroborated the evidence saying that he received one pullanda and FSL form having seals of 7APS NB DELHI and KSY vide RC No. 451/21/2010 and as per the directions of Inspector Vivek Pathak he deposited the same in FSL Rohini. He had handed over the received copy to MHC(M). In his cross examination the witness stated that he had signed register no. 21 but not register no. 19. The attention of witness was drawn to his statement dated 23/12/10 wherein he had not mentioned the number of RC vide which he took the sample to FSL.
7. PW2 HC Om Prakash has deposed that on 16.12.2010 DD FIR No. 172/10, PS. Crime Branch Page 6of 32 St. Vs. Rehman @ Jiyaurehman No. 14 was received in their office duly forwarded by Inspector Narcotic Cell which was entered in diary register vide serial no. 2661. Photocopy of said entry is Ex. PW 2/B. He identified the handwriting and signature of ACP R.S. Manku. He further deposed that on 17.12.2010 two reports u/s. 57 NDPS Act were received in their office vide diary no. 2662 & 2663, which was sent by SI Satyawan and ASI Rajbeer. Both bearing signature of ACP were produced and proved as PW2/C and 2/D respetively. The original diary register containing entry no. 2661, 2662 & 2663 was produced. The copies of relevant entries were retained on record and the same are Ex.PW2/D, PW2/E and PW 2/F. In his cross examination the witness stated that on 17.12.2010 he was posted in the office of ACP Narcotic PS Shakarpur. He admitted that separate entries regarding sending of the reports to Additional DCP were not there but there were entries showing that they were sent the same day. He deposed that he had personally taken the reports to Additional DCP and had obtained his signatures. He deposed that information u/s 42 NDPS Act was received at his office at 01.00 pm.
8. PW8 Inspector Vivek Pathak deposed that on 16/12/10 at about 10.15 am SI Satyawan along with secret informer had come to his office and told him that one Rehman, who was resident of Sangam Vihar, Delhi, was indulged in sale and supply of Heroin and would be FIR No. 172/10, PS. Crime Branch Page 7of 32 St. Vs. Rehman @ Jiyaurehman coming in front of main gate LBS hospopital, Khichipur Delhi between 11.00 to 11.30 pm and could be apprehended, if raided. He deposed that after satisfying himself about the information, he conveyed the same to ACP Narcotic Branch Sh. R.S. Manku on telephone, who directed necessary legal action. The witness further deposed that the information was recorded by SI Satyawan vide DD No. 14 (Ex. PW7/A) and he forwarded the same to ACP N & CP. Thereafter, SI Satyawan along with raiding team left the PS at about 10.45 am vide DD No. 15. They all went by government vehicle No. DL 1CH5839 driven by HC Sanjeev.
He further deposed that SI Rajbeer Singh came to his office along with accused Rehman at about 09.15 pm am on same day. He made inquires from accused.
In his cross examination he stated that the secret informer had not given the complete address of the accused. He did not remember if he had visited any place on that day between 11.00 am to 10.00 pm. He was not requested nor he volunteered to join the raiding team.
9. PW 9 Inspector Kuldeep Singh deposed that on 16/12/10, at about 03.05 pm HC Mukesh came to his office and handed over three pullandas mark A, B and C, one FSL form and carbon copy of seizure memo to him. All of above had one seal each of 7APS NB DELHI FIR No. 172/10, PS. Crime Branch Page 8of 32 St. Vs. Rehman @ Jiyaurehman marked on them. He put his seal of KSY on each pullanda and FSL form and wrote FIR number after asking from the duty officer on all articles / documents. At around 03.25 pm, MHC(M) HC Jag Narayan was called by him in his office and the case property and documents were handed over to him, who made an entry in register no. 19. He deposed that he made DD No. 14 in this regard at 03.40 pm. The copy of DD No. 14 is Ex. PW 9/B. He also proved his signatures on entry in register no.19 i.e Ex.PW9/A. In his crossexamination he said that he did not hand over his seal after use to any body.
10. PW 4 ASI Rajveer Singh deposed that on 16/12/10, at around 04.00 pm on receiving of further investigation, he went to the spot by official vehicle. He left vide departure entry no. 21, ( also) Ex.PW4/A. He reached the spot where he met SI Satyawan, who handed over documents prepared by him and custody of the accused to him. He prepared the site plan, (also) Ex. PW4/B and recorded the statement of HC Joginder Singh. He arrested accused Rehman @ Jiyaurrehman after brief interrogation vide memo ( also) Ex. PW4/C and conducted his personal search vide memo Ex. PW 4/D and recorded his disclosure Ex. PW 4/E. From the personal search of the accused one carbon copy of the notice u/s. 50 NDPS Act, cash Rs. 90/ were FIR No. 172/10, PS. Crime Branch Page 9of 32 St. Vs. Rehman @ Jiyaurehman recovered. After completing the investigation they all returned to Crime Branch Nehru Place, where he deposited the personal search articles of the accused with MHC(M). He produced accused before Inspector Vivek Pathak. He proved his special report u/s 57 NDPS Act submitted to Inspector Mohan Lal Sharma which is Ex. PW 2/D. He tendered the FSL report Ex. PX in the Court and identified the carbon copy of notice u/s 50 NDPS Act, which was recovered from the personal search of accused is Ex. PW 4/P1.
In his crossexamination the witness deposed that he had not produced the accused before SHO Crime Branch. The office of ACP is in the same premises and his report ( u/s 57 NDPS Act) was forwarded but not sent in his presence ( to ACP). The information of arrest of accused was given to the brother of the accused who had come to Narcotic Cell of his own.
11. PW6 HC Mukesh Kumar, PW10 HC Joginder Singh and PW 7 SI Satyawan are the witnesses of recovery.
12. PW7 has deposed that on 16/12/10 at about 10.00 am one secret informer came to Narcotics Cell and informed him that one person namely Rehman R/o Sangam Vihar Delhi, who used to supply Heroin in Delhi, will come to deliver Heroin to someone in front of main gate FIR No. 172/10, PS. Crime Branch Page 10of 32 St. Vs. Rehman @ Jiyaurehman LBS hospital Khichri Pur, Delhi in between 1111.30 am. He interrogated the informer and thereafter, produced him before Inspector Vivek Pathak, who also satisfied himself and thereafter, conveyed the information to ACP N & CP Sh. R.S. Manku on telephone, who directed to conduct raid. PW 7 recorded deposed that he DD No.14 (Ex.PW7/A) and submitted true copy of the same to Inspector Vivek Pathak for necessary action.
PW6 deposed that on 16/12/10, he was called by SI Satyawan (PW7) at about10.40 am, who prepared a raiding party consisting of himself, HC Jogender ( PW10) and this witness. The fact has been corroborated by PW10. Thereafter, PW 6 deposed that SI Satyawan collected IO bag, field testing kit, electronic weighing scale and the raiding team alongwith secret informer left for the spot in the government vehicle no. DL1CH 5839 driven by HC Sanjeev Kumar. DD No. 15 was prepared in this regard by SI Satyawan which is Ex. PW 7/B. PW7 is corroborated by PW6 and PW10 on this aspect and all have said that the team with secret informer left PS at 10.45 am vide DD No. 15. The witnesses deposed that on the way to the spot, the IO SI Satyawan, PW7 stopped after coming out of the PS Shakharpur and requested 56 persons to join the investigation, who all refused to oblige and left without disclosing their names and addresses. Similarly 45 persons were also requested to join the investigation after reaching at the FIR No. 172/10, PS. Crime Branch Page 11of 32 St. Vs. Rehman @ Jiyaurehman spot but they refused. SI Satyawan corroborated by PW6 & PW10 deposed that the raiding team reached at the spot at 11.05 am, where the driver was asked by him to wait at a distance of 50 meters. Around 11:10 am, one person was seen coming, from Kalyan Puri side, who was wearing blue jeans and multicolour pullover (colourful jersy), the secret informer pointed towards him from a distance of 1520 meters, identifying him as Rehman. As per witnesses the secret informer left after pointing out at the accused. The person waited for four five minutes and thereafter started to leave and at that time, he was apprehended. The witnesses deposed that the IO disclosed his identity and identity of the raiding team members to the accused. The accused had disclosed his name as Rehman, who was identified by all the three witnesses in the court. IO told him regarding the secret information received by him and that his search was to be conducted. He also said that if he wanted his search could be conducted before a Gazetted Officer or a Magistrate. He explained the legal rights of the accused regarding his search. PW7 stated that he had offered his search and search of the raiding team members as also the official vehicle to the accused. He deposed that he prepared notice u/s. 50 NDPS Act, carbon copy of which was served upon accused Rehman which is Ex. PW 6/A. The accused refused to avail all the offers given by the IO and his refusal written in his writing has been proved as Ex. PW 6/B. The FIR No. 172/10, PS. Crime Branch Page 12of 32 St. Vs. Rehman @ Jiyaurehman witnesses say that after service of notice, IO again requested 45 persons to join the investigation but they refused. PW 6 & 10 deposed that IO took the search of accused and found a black polythene packet from right side pocket of his pant which was tied with rubber band; on opening which a white polythene was found containing matiala colour powder. PW 7 said that recovery from pocket of jeans. The same on testing was found to be heroin weighing 320 gm. The two samples of 5 gms each were drawn and kept in small transparent polythene which were converted into pulandas and sealed with the seal of 7APS NB DELHI. They were seized vide memo Ex. PW 6/C. The IO has proved the rukka Ex. PW 7/G. The three recovery witnesses identified the case property. Sample mark A is Ex. P1, mark B is Ex. P2 and the recovered heroin is Ex. P3.
13. SA was recorded wherein the accused stated that nothing was recovered from him. He was picked from Tikri and his signatures were obtained on blank papers.
14. Ld. Addl. PP argued that the secret information was received by SI Satyawan who had produced the accused before the Inspector, who had further intimated ACP concerned. DD No. 14 was recorded. Raiding party had left the PS vide DD No. 15. Public persons were also FIR No. 172/10, PS. Crime Branch Page 13of 32 St. Vs. Rehman @ Jiyaurehman requested as per rule or prudence. The accused was informed of his legal rights and section 50 NDPS Act was duly complied with. The sample were drawn which were sealed at appropriate stages and sealed pulandas were sent to FSL which reported that the contraband was diacetyl morphine. The prosecution as such proved its case with a complete chain of events.
15. Ld. Counsel for the accused on the other hand argued that the witnesses were confused on who had directed the taking of parcels to FSL as PW1 says that it was the SHO while PW3 said that it was Inspector Vivek Pathak. Relying on 2011 (3) JCC (Narcotics) 156 DII VS. Raj Kumar & Ors., he argued that there was a change in the seal mentioned by the witnesses and referred in the FSL. PW3 had not mentioned the RC No. in his statement u/s 161 Cr.P.C. He argued that PW5 the duty officer stated that the SHO was not present in the PS when rukka was brought while other witnesses stated that he was present. PW5 was also confused on to whom had he handed over the copy of FIR and rukka. The colour of the case property was found different. The IO did not write the rukka himself. PW6, 7 and 10 having contradicted each other on the recovery. The obtaining of field testing kit is doubtful. He has relied upon the judgments in 2007 Crl FIR No. 172/10, PS. Crime Branch Page 14of 32 St. Vs. Rehman @ Jiyaurehman LJ 2074 Nihal Khan Vs. State; 2013 (2) Delhi JCC 66 State Vs. Ramesh; Gurjant Singh @ Janta Vs. State of Punjab Cr. A No. 1868/2013; Rakesh @ Shankar Vs. State Crl. A No. 663 /2010; Praveen Singh @ Kalia Vs. State 2011 (1) JCC ( Narcotics ) 1; Vijay Sinh Chandu Bha Jadeja VS. State of Gujrat AIR 2011 SC 77 ; Matlu Vs. State 67 (1997) DLT 372 ; Rishi Dev @ Omkar Singh Vs. State Crl. A No. 757/2000; Radha Krishan Vs. State 87 (2000) DLT 106 ; 1993 (3) RCR 566 titled Chameli Devi Vs. State and Mohd. Rafiq Vs. State 2000 Crl. LJ 2401.
16. Ld. Counsel argued that there was a discrepancy in the seal which raises a suspicion about tempering of the sample. It was argued that as mentioned in the evidence of PW1, 4 and PW3 , the seal 7APS NB DELHI was affixed on the samples, however, the seal mentioned in FSL report was 7AP.S. /N.B DELHI. The property when it was opened in the court it was found to be having seal of 7 A PS /NB DELHI. Ld. Counsel in this regard relied upon the judgment in Raj Kumar and Ors ( supra). In the cited judgment the seal mentioned in the panchnama was DRI No. 1, however, when the case property was produced in the court, the same was found to be sealed with the seal of DRI. Ld. Addl. PP argued that in the instant case the confusion is only about the manner of FIR No. 172/10, PS. Crime Branch Page 15of 32 St. Vs. Rehman @ Jiyaurehman writing the digits and the alphabets. Unlike in the cited judgment neither any number nor any alphabet was found missing from the seal. All the words and alphabets i.e 7APS NB DELHI were mentioned by the witnesses and were also found on the seal. The same words and numbers were mentioned in the FSL report. I have perused Ex. PW 9/A wherein the MHCM has mentioned the seal as 7 AP.S. NB DELHI; 7 APS NB DELHI and 7 AP.S NB DELHI at 3 places in the same document, which strengthens the arguments of Ld. Prosecutor that the dots and slashes are not always mentioned as the impressions of the seal. He argued that if the words are written in two lines some persons may add slash ( / ) to mark the distinction, similarly some persons habitually put dots after the abbreviations habitually. The manner of writing the digits and alphabets cannot be explained in the evidence. The facts of cited case as such are not applicable to the present case since unlike in the cited judgment no alphabet or digit was missing from the seal at all stages, in the present case.
17. Ld. Counsel argued that PW5 HC Kewalanand deposed that the SHO was not present in the PS and he had gone to the Court. It was argued that if the SHO was not present in the PS, the case property could not have been produced before him. Relevantly, two out of three witnesses i.e. PW 6 and PW 9 have categorically deposed about the FIR No. 172/10, PS. Crime Branch Page 16of 32 St. Vs. Rehman @ Jiyaurehman presence of SHO in the PS. PW6 had brought the case property and he handed it over to PW9. Their evidence is corroborated by PW 1 HC Jagnarayan to whom the case property was handed over by the SHO after sealing etc. With corroborative evidence of three witnesses, a confusion in the mind of PW5 who came to depose in the Court after three years of the incident, is ignorable. Further the evidence of the PW5 was not supported by any document. Ld. Counsel did not challenge the evidence of PW1, 6 and 9 who deposed specifically about the presence of SHO, in their respective cross examinations. Their nonconfronted and corroborated statements are therefore to be accepted against the uncorroborated evidence of PW5.
18. Ld. Counsel argued that there was a change in the colour of case property as was admitted by PW 6 in his evidence which indicates that the sample might not have been of the property produced in the Court. PW 6 in his cross examination admitted that the colour of sample was slightly different from remaining Heroin but he volunteered that the sample was exposed to air at the time of testing at the FSL which might have resulted into the slight change. The judgment cited by Ld. Counsel had taken into consideration the possibility of increasing the percentage of the contraband in the sample while viewing the change in colour. The judgment is of 2007. The law since then has changed and FIR No. 172/10, PS. Crime Branch Page 17of 32 St. Vs. Rehman @ Jiyaurehman the percentage of contraband in mixture is not a criteria as on date. Even other wise the witness has specifically stated that the slight change in colour could be due to exposure at the time of testing, which fact was not challenged by the accused by any scientific evidence except for asking the witness if he had any knowledge of Chemistry.
19. Relying upon the judgment in State Vs. Ramesh ( supra). Ld. Counsel argued that there was no reason why the IO did not write the rukka in his own handwriting. In cited judgment the rukka was recorded by the driver of the vehicle, who was not a prosecution witness, as such the preparation of rukka by him could not be proved by him. In the present case all the three witnesses in their respective cross examination stated that the rukka was prepared by HC Mukesh, who himself admitted in his cross examination at page no. 7 that the rukka was in his handwriting. PW 10 as well as IO also stated that the rukka was written by HC Mukesh. The rukka thus was recorded by a member of raiding team who had witnessed the entire recovery proceedings and wrote the rukka at the instance of IO. The facts of the case are not similar to the cited judgment which as such cannot be applied to the present case.
20. Pointing the other contradictions, Ld. Counsel argued that FIR No. 172/10, PS. Crime Branch Page 18of 32 St. Vs. Rehman @ Jiyaurehman PW1 stated that the sample was given to Ct. Mukesh as per directions of SHO while PW 3 said that it was on the directions of Inspector Vivek Pathak. It came in the cross examination of Inspector Kuldeep Singh that the Incharge Narcotic Cell has all the powers of SHO. As such both the SHO and Inspector Vivek Pathak could have directed the sending of the FSL. The contradiction pointed is not of the nature as would render the prosecution case unreliable. Similarly, the non mentioning of RC number in the statement u/s 161 Cr.P.C. is of no relevance since the document itself was tendered in evidence by PW1 and was not challenged.
21. PW 5 stated in his chief that he handed over the rukka and copy of FIR to HC Mukesh for handing over to the IO and in his cross he said that he handed over the same to ASI Rajveer, who is the IO. This is minor confusion in the mind of the witness. The conclusive finding of his evidence is that the documents were given to ASI Rajveer directly or through Ct. Mukesh. PW5 otherwise has come out to be a confused witness as held herein above.
22. Another contradiction pointed out by Ld. Counsel is that PW 7 deposed that the contraband was recovered from right pocket of jeans ( of accused ) while PW 6 and 10 stated that it was recovered from his FIR No. 172/10, PS. Crime Branch Page 19of 32 St. Vs. Rehman @ Jiyaurehman pant. PW 6 and 10 in their chief examination said that the accused was wearing a colourful jersey and blue colour jeans. It is thus clear that when stating the recovery to have been effected from pant, they were referring to jeans which as per their own evidence was worn by the accused.
23. Ld. Counsel argued that PW 7 deposed that the field testing kit was issued to him before 16.12.10 while PW10 stated that the same was got issued on the same date. PW 10 has stated in his cross examination that filed testing kit and electronic weighing machine were taken by the IO from the Malkhana. The IO stated that field testing kit had already been issued to him while electronic weighing machine was got issued on the same date. The answers are not suggesting that issuance meant that there was a difference in issuance and in receiving from malkhana. When was the field testing kit issued to the IO was in his exclusive knowledge and he was the best witness of the fact. So far as MHCM is concerned, it was argued that he did not say in his evidence that the field testing kit or the electronic weighing machine were issued by him to the IO. In a criminal case the witnesses are cited by the prosecution for proving the fact which it wants to be proved by such witnesses. All the witnesses even if they are in knowledge of other aspect of investigation, they per se do not become the witnesses of those FIR No. 172/10, PS. Crime Branch Page 20of 32 St. Vs. Rehman @ Jiyaurehman parts of investigation. If Ld. Counsel wanted to dispute the statement of PW 7 on whether or not MHCM gave him the electronic weighing machine, he was expected to have put a question to MHCM in his cross examination for which he could have recalled MHCM after the evidence of PW7. MHCM having been cited as a witness for registers no. 19 and 21 and having been summoned for that limited purpose, was not expected to have deposed about handing over of electronic weighing machine unless specifically asked. It is not denied that field testing kit as well as electronic weighing machine were with IO at the time of incident, when and how were they obtained has been deposed by him.
24. It was argued that the sample drawn was of 5 gms, however, FSL report says that it was 5.3 gms. The minute difference of point 3 gms can be attributed to different balances used by the IO and the FSL.
25. Ld. Counsel argued that PW7 is saying that he gave his report u/s 57 to Inspector Vivek Pathak, however, the same was given to Inspector M.L. Sharma. PW 7 in his examination in chief deposed that he had submitted his report u/s 57 NDPS Act to Inspector Narcotic Cell. It is in his cross examination in answer to the question put to him that he stated that he produced the report before Inspector Vivek Pathak at 09.30 am. It is not clear from the answer whether the question was FIR No. 172/10, PS. Crime Branch Page 21of 32 St. Vs. Rehman @ Jiyaurehman when he produced the report to Inspector Vivek Pathak or to whom did he produce the report. A relevant fact is that on 17/12/10 Inspector M.L. Sharma was Inspector Narcotic Cell while on 16/12/10 Inspector Vivek Pathak was the Inspector Narcotic Cell. The witness having stated that he gave his report to Inspector Narcotic Cell, a confusion in his mind regarding the name, when the position was changed within a day, is only humane.
26. It was additionally argued that the second IO had reached the spot before registration of FIR. The fact however, are not such. PW 5 says that he got the rukka at 03.00 pm. In his cross he says that he gave the original rukka and FIR to ASI Rajbir after one - one an half hour, which could be 04.00 or 04.30 pm. PW 4 ASI Rajveer, the second IO says that he got the further investigation at 04.00 am and he reached the spot at 04. 20 pm. The confusion can be only if it is presumed that the FIR was completed at 04.30 and not 04.00 pm though the witness has given the range of 04.00 to 04.30.
27. It was argued that section 50 NDPS Act, was not duly complied with. I have gone through Ex. PW 6/A and Ex. PW 6/B, the notice and reply of the accused respectively. The notice says that the accused was informed that he had a legal right to get searched in FIR No. 172/10, PS. Crime Branch Page 22of 32 St. Vs. Rehman @ Jiyaurehman presence of Gazetted officer or Magistrate, which could be arranged also. In his reply the accused said that he had understood the meaning of Gazetted office and Magistrate and that he did not want to be searched in presence of any Gazetted officer or Magistrate. The reply is in the handwriting of accused and is signed by him. Both notice and reply are in Hindi. Relying upon the judgment in Vijay Singh Chanduba Jadeja ( supra), Ld. Counsel argued that the prosecuting agency was under liability to have produced the suspect before the nearest Gazetted officer or the Magistrate. In Vijaysinh Chandubha Jadeja Vs. State of Gujrat it was held that : "We also feel that though Section 50 gives an option to the empowered officer to take such person ( suspect) either before the nearest gazetted officer or the Magistrate but in order to impact authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavor should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well". This para as argued by Ld. Addl. PP does not obligate the police officers to necessarily produce the accused before a Magistrate or a Gazetted officer. It merely says that section 50 gives an option to the concerned officer to take the suspect either before Gazetted FIR No. 172/10, PS. Crime Branch Page 23of 32 St. Vs. Rehman @ Jiyaurehman officer or Magistrate. It further says that an endeavor should be made to produce the suspect before the Magistrate at first instance. The judgment does not say that the suspect need to be necessarily produced before a Magistrate or Gazetted officer even if the accused refuses to avail the offer. It merely says that when the option is exercised by concerned officer the endeavor should be to take the suspect before the Magistrate first ( and not Gazetted officer as Magistrate enjoys more confidence). Section 50 provides for an option to the accused and whenever he wants to avail this option, he should be produced before Gazetted officer or Magistrate with first attempt for a Magistrate, however, if the accused refuses to avail the option and still he is produced before Gazetted officer or Magistrate against his wish, the same may tantamount to creating an incriminating evidence against the accused against his wishes as the recovery before the Gazetted officer or Magistrate shall have stronger evidentiary value against the accused. Ld.Counsel as such has not been able to point out any lacuna in the notice; its service or the reply.
28. It was argued that there was delay of 7 days in sending the samples to the FSL alleging that the delay being against the NCRB guidelines, should be read against the prosecution case. In support of his contention Ld. Counsel relied upon the judgment of Hon'ble Delhi High FIR No. 172/10, PS. Crime Branch Page 24of 32 St. Vs. Rehman @ Jiyaurehman Court in Matlub Vs. State, 67 (1997) DLT 372, wherein the Hon'ble Delhi High Court held that the sample needs to be sent to FSL without delay and if the samples were dispatched with delay and no explanation was given, the tempering with the sample can be inferred.
To counter this argument Ld. Addl. PP relied upon the judgment of Hon'ble Supreme Court in Ajmer Singh Vs. State of Haryana, 2010 (2) SCR 785. In the said matter the Hon'ble Supreme Court upheld the order of Hon'ble Delhi High Court on the issue of ignoring the delay in sending the sample, the delay being of 15 days, and holding that the statements of witnesses and report of FSL shows that the sample was received in a sealed cover and there was no tempering of the sample. He also argued that in Ramesh Kumar Rajput @ Khan Vs. State of Nct of Delhi MANU/DE/0786/2008 and in Bilal Ahmed Vs. State 2011 III AD (Crl.) DHC 293, the delay of 13 days and 59 days respectively was ignored.
From the cited judgments the ratio which can be drawn is that to safeguard the possible tempering, the sample should be sent to FSL at earliest preferably in 72 hours, however, if there is a delay there is an onus on the prosecution to show that there was no tempering with the case property and the sample. If the prosecution satisfies that there was no tempering, the delay is to be ignored, however, in the event of a FIR No. 172/10, PS. Crime Branch Page 25of 32 St. Vs. Rehman @ Jiyaurehman doubt, the benefit has to be given to the accused. No such tempering has been proved and so the delay is to be ignored.
29. It was argued by Ld. Counsel for the accused that no public person was joined though available. It is settled law that nonjoining of public witnesses itself cannot become a ground for acquittal if the case of prosecution is otherwise not doubtful. Hon'ble Supreme Court in Ramesh & Anr Vs State of UP AIR 2009 SC 2741, held that if the public witnesses do not become available, it is not the fault of the investigating agency.
In Sumit Tomar Vs State of Punjab Criminal Appeal no 16901691 of 2012 decided on 19/10/2012 it was held:
"In a case of this nature, it is better if the prosecution examines atleast one independent witness to corroborate its case. However, in the absence of any animosity between the accused and the official witnesses, there is nothing wrong in relying on their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by prosecution, there is no animosity established on the part of the official FIR No. 172/10, PS. Crime Branch Page 26of 32 St. Vs. Rehman @ Jiyaurehman witnesses by the accused in defence and we also do not find any infirmity in the prosecution case.
In view of the above discussion, we hold that though this is desirable to examine independent witness, , however, in absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with."
In Rohtas versus State of Haryana JT 2013 (8)SC 181, the Hon'ble Supreme Court again held:
" where all the witnesses are from the 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 are either interested in the investigating or the prosecuting agency from the victim and the vigilante."
In Gian Chand Vs. State of Haryana Criminal Appeal no 2302 of 2010 dated 23/07/2013 " it was held that mere non joining of an independent witness FIR No. 172/10, PS. Crime Branch Page 27of 32 St. Vs. Rehman @ Jiyaurehman where the evidence of the prosecution witnesses may be found to be 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".
The judgments cited by the Ld. counsel lay down the rule of prudence but in view of the other cited judgments since the accused has not taken any plea of animosity and has not stated why the police officials would have falsely implicated him, nonjoining of public witnesses does not become a ground for acquittal of the accused as the case of the prosecution is otherwise proved on all material aspects. So far as the rule of prudence laid down under the judgments cited by Ld. Counsel, the evidence of the witnesses on the aspect has been carefully perused. All the witnesses have corroborated each other on when and where public witnesses were asked to join and how many was there number. There is not much cross examination on the persons and places except for a few general questions.
30. The prosecution has proved that the received secret information was recorded as Ex. PW 2/A and was communicated to the Sr. Officers vide Ex. PW 2/B without any delay. The recovery witnesses FIR No. 172/10, PS. Crime Branch Page 28of 32 St. Vs. Rehman @ Jiyaurehman have duly proved that 320 gms of Heroin was recovered from the possession of accused after the accused refused to be searched in presence of Gazetted officer or Magistrate vide Ex. PW 6/B in his handwriting and bearing his signature. The duly drawn sample ( Ex. P1) was sent to FSL vide RC no. 451/21/10 ( Ex. PW1/C), which says that the sample alongwith FSL form was sent to FSL, as has been deposed by PW3. The FSL report says that sample alongwith forwarding letter (FSL form) was received by them and the seal on the sample tallied with the sample seal. It was concluded that sample contained 9.91% of Diacetyl morphine. The accused has not been able to disprove the case of the prosecution on any of the issue raised by him.
31. In view of above, the accused is convicted u/s 21 (C) of the NDPS Act found in possession of 320 gms of Heroin.
Announced in the open court on 02/06/2015 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI/02/06/2015 FIR No. 172/10, PS. Crime Branch Page 29of 32 St. Vs. Rehman @ Jiyaurehman IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ ASJ02 (EAST), SPL. JUDGE (NDPS) KARKARDOOMA COURTS, DELHI.
Unique ID No. 02402R0100872011
Sessions Case No. 49A/13
State v/s Rehman @ Jiyaurehman
S/o Sh. Habibulah
R/o HNo.62, Ward No. 22,
Mirdhan Mohalla VPO & PS Faridapur,
Distt Barreilly, U.P.
FIR No. 172/10
PS. Crime Branch
U/s. 21/29 NDPS Act
Pr: Sh. Ajit Kumar Sriwastawa, Ld. Addl. PP for the State.
Convict Rehman produced from JC.
Sh. Amit Gupta, Ld. Counsel for convict.
ORDER ON SENTENCE:
1. Accused Rehman has been convicted by order/judgment of this court dt. 02/06/15.
2. Arguments were heard on point of sentence.
FIR No. 172/10, PS. Crime Branch Page 30of 32 St. Vs. Rehman @ Jiyaurehman
3. Ld. Counsel for the convict has argued that convict is having responsibility of his family. He had unmarried sisters. He himself is unmarried and has responsibility of the sisters. He is the sole bread earner. The percent of contraband was only 9.9 %. Ld. Counsel has requested for taking a lenient view on the ground that convict has suffered the ordeal of trial as he is in custody since the day of his arrest.
4. Ld. APP prays for imposition of severe punishment as such kind of offences are on the rise in the society. He has argued that recovery effected from convict falls within the commercial quantity.
Hon'ble Supreme Court in Sevaka Perianal etc. Vs. State of Tamil Nadu (1991 (3) SCC 471) held that it is the duty of every court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed etc. Hon'ble Supreme Court in 2008 X AD (SC) 645 Siriya @ Shrilal Vs. State of MP, held that " Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. In each case there should be proper balance of aggravating and mitigating circumstances in an appropriate manner."
FIR No. 172/10, PS. Crime Branch Page 31of 32 St. Vs. Rehman @ Jiyaurehman
5. Keeping in view the facts and circumstances of the case, since the commercial quantity of Heroin has been recovered from the possession of the convict, he cannot be convicted for anything less than the minimum prescribed punishment for the offence. The ends of justice would be subserved if the convict is sentenced to undergo Rigorous Imprisonment for a period of 10 years u/s. 21 (C) of NDPS Act and also directed to pay a fine of Rs. 1,00,000/ in default of payment of fine, he shall undergo SI for six months.
6. The period of detention already undergone by him during investigation, inquiry or trial may be set off against the sentence awarded in this case, in view of section 428 Cr.PC.
7. A copy of this order as well as of judgment be given to convict free of cost. Copy be also sent to Jail Superintendent for information and necessary action.
Announced in the open court on 04/06/15 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI/04/06/15 FIR No. 172/10, PS. Crime Branch Page 32of 32 St. Vs. Rehman @ Jiyaurehman