Delhi District Court
State vs Kaushalaya @ Talla on 19 May, 2011
IN THE COURT OF SMT SARITA BIRBAL: ASJ:
Spl. JUDGE (NDPS ACT): KKD COURTS(EAST): DELHI
S.C. No: 74/07
State Versus Kaushalaya @ Talla
Wife of Sh. Kailash Chand
r/o 32/215, Trilokpuri,
Delhi.
FIR No: 78/07
P.S.: Narcotic Branch
U/s. 21 NDPS Act
Date of submission of charge sheet 18.09.2007
Date on which the judgment was reserved 12.05.2011
Date on which judgment has been delivered: 18.05.2011
JUDGMENT
1. Case of the prosecution, as per the chargesheet under section 173 Cr. P.C. is as follows : On 06.08.2007 while SI Rajbir Singh was present at the police station Narcotic Branch, at about 6 a.m. a secret informer came and informed him that a lady namely Kaushalaya @ Talla deals in supply of smack in puriyas, will get down from a bus at Mayur Vihar PhaseI and would go to her house at Trilokpuri. The said informer was produced before SHO Narcotic Branch who after S.C. No. 74/07 Page 1 of 30 satisfying himself further conveyed the said information to ACP - Narcotic Branch who ordered to conduct a raid. DD No. 5A was reduced in writing in this regard. As per the directions, raiding party consisting of SI Rajbir Singh, Constable Ravinder and W/HC Shiksha was constituted. The said raiding party left the police station in govt. vehicle with electronic weighing scale and the informer. On the way at different points i.e. at Shakarpur red light 5 passersby and at Mayur Vihar PhaseI bus stand 4 persons were requested to join the proceedings but none of them agreed. Raiding party reached the spot and nakabandi was done. It is further alleged that at about 8 a.m. accused was seen coming wearing white colour suit and pink colour salwar with blue chunni. She was apprehended by the police party with the help of W/HC Shiksha. It is also alleged that contents of the secret information were conveyed to the accused and notice under section 50 NDPS Act was served on her apprising her that she has a legal right that she can be searched before a Gazetted Officer or a Magistrate. Accused did not avail of this opportunity. Before commencing further proceedings 67 public persons were requested to join the proceedings but none of them agreed and all went away showing their personal difficulties. On search of accused by W/HC Shiksha, one cloth thaili of matiala S.C. No. 74/07 Page 2 of 30 colour tied with her right side salwar string (naara) containing 125 paper pouches/puriyas (2 pink, 16 yellow, 107 white) all having smack powder was received. The smack lying in all the 125 paper pouches (puriyas) was collected and weighed on electronic weighing machine which came to be total 125 grams. Out of the said contraband two samples of five grams each Mark A & B were taken out. Samples - Mark A & B and the remaining contraband - Mark C were separately packed and sealed with the seal of 2A PS NB DELHI of SI Rajbir Singh. FSL Form was also filled up using the same seal. Seal after use was handed over to W/Head Constable Shiksha. Ruqqa was prepared and sent to the police station through Constable Ravinder for getting the case registered. Case property including samples, FSL Form and copy of seizure memo were also handed over to the said Constable for handing over the same to SHO for depositing with MHCM. Case was registered under section 21 NDPS Act. Case property and the documents were handed over to the SHO who also put his seal "1SHO NBR DELHI" and FIR number on them. Further investigation of this case was entrusted to SI Sunil Jain who also reached the spot. Accused and the documents were handed over to him. The accused was arrested. Sample Mark A was sent to FSL, Rohini for examination. Accused was S.C. No. 74/07 Page 3 of 30 chargesheeted for the offence punishable under sections 21 of the Narcotic Drugs & Psychotropic Substance Act (hereinafter referred as NDPS Act).
2. On receipt of Result from FSL, it was placed on the judicial file. As per FSL report the sample was containing 3.37% diacetylmorphine.
3. Vide order dated 29.10.2007, my ld predecessor framed a charge u/s. 21 (a) of the NDPS Act to which the accused pleaded not guilty and claimed trial.
4. Prosecution has examined nine witnesses in support of its case who are as PW 1 - Head Constable Ishwar Singh; PW 2
- Constable Praveen Kumar; PW 3 - Head Constable Ramesh Chand; PW 4 - ASI Hasan Raza; PW 5 - Inspt. Kharak Singh; PW 6 - SI Sunil Jain; PW 7 - Constable Ravinder; PW 8 - SI Rajbir Singh and PW 9 - W/ASI Shiksha.
5. Out of these examined witnesses PW 7 - Constable Ravinder; PW 8 - SI Rajbir Singh and PW 9 - W/ASI Shiksha are the material witnesses of recovery.
6. Remaining witnesses were associated with the investigation of this case.
7. PW 3 - Head Constable Ramesh Chand is the duty S.C. No. 74/07 Page 4 of 30 officer of the case who proved copy of FIR as Ex.PW3/A. His endorsement on the ruqqa is Ex. PW 3/B. He further submitted that after recording the FIR at 4.30 pm, the investigation was handed over to SI Sunil Jain.
8. PW 6 - SI Sunil Jain is the IO of the case who reached the spot as further investigation of this case was entrusted to him and he arrested the accused, prepared site plan and also conducted further proceedings. He also recorded statement of W/HC Shiksha at the spot.
9. PW 5 Inspt. Kharak Singh, SHO, Narcotic Branch stated that on 06.08.2007 at about 6.15 am SI Rajbir Singh came to his office and produced the secret informer who gave information about the accused. The said information was conveyed to ACP Narcotic Branch Sh. Rajesh Deo on telephone at his residence. The secret information was reduced into writing by SI Rajbir vide DD No. 5A and he forwarded the same to senior officers in compliance of provision of Section 42 NDPS Act. He further stated that at about 2.30, pm Ct. Ravinder produced before him sealed parcels mark A,B, C, copy of seizure memo and form FSL on which he affixed his seal "1 SHO NBR DELHI" and put FIR number and then deposited the parcels and other articles with MHCM in intact S.C. No. 74/07 Page 5 of 30 condition. This witness further stated that he forwarded the reports Ex.PW4/C and Ex.PW4/D under section 57 NDPS Act produced by SI Rajbir Singh and SI Sunil Jain to the senior officers.
10. PW 1 - Head Constable Ishwar Singh, MHCM, proved the entries Ex.PW1/A to Ex.PW1/D effected in malkhana register. He also deposed that on 06.08.2007 at about 2.55 p.m. Inspt. Kharak Singh called him alongwith register no. 19 in his office and handed over him the three parcels (A, B and C) sealed with the seal of "2A PS NB DELHI" and "1 SHO NBR DELHI", form FSL having same seal impressions of "1SHO NBR DELHI"
and "2A PS NB DELHI" and entry was lodged by him at serial no.
714 in register no. 19 regarding deposition of these articles in the malkhana. He further deposed that on 22.08.2007, he handed over one sample parcel A and Form FSL in intact position to Constable Praveen vide R/C no. 71/21 and Constable Praveen deposited the same with FSL, Rohini.
11. PW 2 - Head Constable Praveen Kumar deposed that on 22.08.2007 he had taken one sample parcel, form FSL duly sealed with the seal of "2A PS NB DELHI" and "1SHO NBR DELHI" to FSL, Rohini and deposited the same in intact condition.
12. PW 4 - ASI Hasan Raza from the office of ACP S.C. No. 74/07 Page 6 of 30 Narcotic Branch deposed that on 06.08.2007 a report u/s 42 NDPS Act - Ex. PW4/A sent by SI Rajbir Singh was received in the office of ACP vide diary entry Ex.PW4/B. This witness also deposed that on 07.08.2007, two reports under section 57 NDPS Act - Ex. PW4/C and Ex. PW4/D were received in the office of ACP vide diary entries Ex. PW4/E and Ex.PW4/F.
13. All the recovery witnesses i.e. PW 7 - Constable Ravinder; PW 8 - SI Rajbir Singh and PW 9 - W/ASI Shiksha deposed that on 06.08.2007 at about 6 a.m. the secret informer came to SI Rajbir Singh and informed him that a lady namely Kaushalaya @ Talla deals in supply of smack in pouches(puriyas), will get down from the bus at Mayur Vihar PhaseI and would go to her house at Trilokpuri. DD no. 5 A, Ex.PW4/A was recorded in this regard and that in pursuance to the said secret information raiding party consisting of SI Rajbir Singh, Constable Ravinder, head Constable Devender and W/HC Shiksha was organised. These witnesses further stated that at about 8 a.m. accused was seen coming wearing white colour suit and pink colour salwar with blue chunni. She was apprehended by the police party with the help of W/HC Shiksha. All these witnesses further stated that contents of the information were conveyed to the accused and notice under S.C. No. 74/07 Page 7 of 30 section 50 NDPS Act - Ex.PW6/DA was served on the accused apprising her about the legal right to give her search in the presence of Gazetted Officer/Magistrate. Accused did not opt for the same and replied as Ex.PW7/A. They further stated that on search of the accused a cloth thaili containing total 125 grams smack lying in 125 paper puriyas tied with naara on right side of her salwar was recovered. These witnesses further deposed that from the recovered contraband two samples of five grams each were taken out. The samples and the remaining contraband were separately packed and sealed with the seal of "2A PS NB DELHI" by SI Rajbir Singh. FSL Form was also filled in using the same seal and these articles were seized vide a memo Ex.PW7/B. All these witnesses further stated that a ruqqa Ex.PW8/A was prepared by SI Rajbir and was sent to the police station through Constable Ravinder for getting the case registered. They have further deposed that all the pullandas, FSL Form and copy of the seizure memo were also handed over to Ct. Ravinder for handing over the same to the SHO. SI Rajbir (PW8) in cross examination deposed that he was using the mobile no. 9811091704.
14. All these witnesses further identified case property produced in the court during evidence as Ex. P1 to P 3 as recovered S.C. No. 74/07 Page 8 of 30 from the possession of accused.
15. PW 8 - SI Rajbir Singh and PW 9 - W/HC Shiksha are also witnesses to the arrest of accused by SI Sunil Jain (PW 6) to whom further investigation of this case was entrusted.
16. In the statement recorded under section 313 Cr.P.C. the accused denied the case of prosecution and stated that she is innocent and no such crime was ever committed by her. Accused further stated that she has been implicated falsely in this case after lifting her from her house.
17. Accused opt to lead evidence in his defence.
18. DW1 Israr Babu deposed about the mobile no. 9811091704 was registered in the name of one R.S. Bhati r/o Quarter No. 2, Type4 H, PS Preet Vihar, Krishna Nagar, Delhi and ownership proof of the said mobile is Ex.DW1/A.
19. I have heard Ld. Addl. P.P. for the State and Sh. S.N. Qureshi, Advocate for accused and have perused the record.
20. Ld. Addl. PP for the State submitted that prosecution has been able to prove its case against the accused. He also submitted that statements of all the prosecution witnesses are consistent with each other and their statements cannot be disbelieved merely on the ground that no independent public S.C. No. 74/07 Page 9 of 30 witness of recovery proceedings was examined. He also submitted that all the mandatory provisions stipulated under NDPS Act have been complied with and thus, accused is liable to be convicted.
21. On the other hand, Ld counsel for the accused submitted that accused has been falsely implicated in this case after lifting from her house and the alleged recovery of smack from her possession is planted one. It is also contended that prosecution has not complied with the provisions enumerated under section 42, 50, 57 of NDPS Act. He further contended that alleged secret information received by SI Rajbir Singh was not specific. He also submitted that no arrival entry of raiding party members in the police station on 06.08.2007 has been proved on record by the prosecution to show that they were on duty on that day. He also submitted that there is overwriting in the arrest memo of accused regarding the time of arrest of accused. He also submitted that accused was allegedly apprehended from the public place and despite availability no public persons was examined by the prosecution which also create doubt about the prosecution case. He submitted that accused is liable to be acquitted.
22. I have given my consideration to the contentions of ld. Addl PP for the State and ld counsel for the accused. S.C. No. 74/07 Page 10 of 30
23. As far as the contention of ld. counsel for accused regarding non compliance of provisions of Section 42 is concerned, Sec. 42 reads as follows : "42. Power of entry, search, seizure and arrest without warrant or authorisation (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of any of the department of the Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or S.C. No. 74/07 Page 11 of 30 forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,
(a) enter into and search any building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks propers, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information S.C. No. 74/07 Page 12 of 30 in writing under subsection (1) or records ground for his belief under the proviso, thereto, he shall within seventytwohours send a copy thereof to his immediate official superior."
24. PW 8 - SI Rajbir Singh deposed that on 06.08.2007 at about 6 a.m. the secret informer came in the PS and informed him that accused who supplies smack/heroin in puriyas would come at Mayur ViharI by bus and and would go to her house at Trilokpuri. He deposed that secret informer was produced before SHO concerned who further conveyed this information to ACP Rajesh Deo on telephone, he recorded secret information vide DD no. 5A Ex.PW4/A and handed over the copy of the same to the SHO. His testimony is corroborated with the statement of SHO Inspt. Kharak Singh(PW5) who also deposed that SI Rajbir, after receiving the secret information produced the secret informer before him and he further conveyed this information to ACP Rajesh Deo on telephone. He also deposed that copy of DD No. 5A was produced before him by SI Rajbir Singh which he further forwarded to senior officers. The testimonies of SI Rajbir Singh(PW8) and Inspt. Kharak Singh (PW5) are further corroborated with the statement of ASI Hasan Raza, from the office of ACP who deposed that on 06.08.2007, a S.C. No. 74/07 Page 13 of 30 copy of report u/s 42 NDPS Act Ex.PW4/A was received in the office of ACP. Thus, consistent and corroborated statements of these three witnesses show that the provisions of Section 42 NDPS Act was duly complied with by the prosecution. In Karnail Singh V. State of Haryana [2009 (4) C.C. Cases (SC) 1] constitution Bench of Hon'ble Supreme Court held as follows:
"... the compliance with the requirements of Sections 42 (1) and 42 (2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior my get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
While total noncompliance of requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42."
25. Even if for the sake of arguments, it is presumed that provisions of section 42 NDPS Act have not been complied with, alleged search of accused was conducted on a road, section 42 NDPS Act is applicable only when the seizure of contraband is S.C. No. 74/07 Page 14 of 30 made from any building, enclosed place or conveyance. This distinction between section 42 & 43 of the NDPS Act was recognised by Constitution Bench of Hon'ble Supreme Court in case of State of Punjab V. Baldev Singh [1999 (6) SCC 172]. In this regard, reference can also be made to judgments reported as Gurdev Kaur Vs. State of Haryana [2002 Crl L.J. 3016 - Punjab & Haryana High Court]; Nasir Ganibhai Shaikh and Anorther Vs. State of Gujrat [2004 Crl L.J. 5049 - Gujrat High Court] and R. Mayilvahanam Vs. Intelligence Officer [2008 Crl L.J. 4425 - Karnatka High Court]. In view of the above, I am of the view that contention raised by the ld defence counsels that section 42 NDPS Act has not been complied with is of no help to the accused.
26. As far as the contention of ld. defence counsel regarding non compliance of section 50 NDPS Act is concerned, the evidence on record would show that the provisions of Section 50 NDPS Act have been duly complied with. Ld. counsel for the accused contended that in the alleged notice u/s 50 NDPS Act Ex.PW6/DA, it is not mentioned that the accused can take search of the govt. vehicle and of raiding party members. He also submitted that the carbon copy of notice allegedly served upon the accused S.C. No. 74/07 Page 15 of 30 Ex.PW6/G does not bear the signature of accused whereas the original notice Ex.PW6/DA bears her signatures. He submitted that under these circumstances, it is not established that the notice u/s 50 NDPS Act was served upon the accused.
27. Section 50 NDPS Act reads as follows : [50. Conditions under which search of persons shall be conducted (1) When any officer duly authorised under section 42 is about to search any persons under the provisions of section 41, section 42 or section 43, he shall, if such persons so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) when an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to S.C. No. 74/07 Page 16 of 30 the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973.
(6) After a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessiated such search and within seventytwo hours send a copy thereof to his immediate official superior.] [50A. Power to undertake controlled delivery The Director General of Narcotics Control Bureau constituted under subsection (3) of section 4 or any other officer authorised by him in this behalf, may, notwithstanding anything contained in this Act, undertake controlled delivery of any consignment to
(a) any destination in India;
(b) a foreign country, in consultation with the competent authority of such foreign country to which such consignment is destined, in such manner as may be prescribed.]"
27. SI Rajbir Singh (PW 8) and other members of raiding party W/ASI Shiksha (PW9), Ct. Ravinder (PW7) deposed S.C. No. 74/07 Page 17 of 30 that after apprehension of accused at the spot, she was explained about her legal rights that her search can be taken before a Gazetted Officer or a Magistrate but she refused for the same. They also deposed that notice u/s 50 NDPS Act, Ex.PW6/DA was served upon the accused and her reply Ex.PW7/A was recorded by SI Rajbir Singh on her dictation as she stated that she is illiterate. As per recovery witnesses notice u/s 50 NDPS Act, Ex.PW6/DA and reply Ex.PW7/A both bear the signature of accused in Hindi. Accused also not disputed her signatures on notice,Ex.PW6/DA and its reply.
28. During arguments ld. Addl. PP submitted that firstly notice u/s 50 NDPS Act and its carbon copy were prepared and thereafter carbon copy was served upon accused and then her signature was obtained on the original notice u/s 50 NDPS Act in token of her service with notice and due to this reason carbon copy Ex.PW6/G does not bear the signature of accused. I have seen the documents Ex.PW6/A and Ex.PW6/DA. The explanation given by ld. Addl. PP for the state be liable to be accepted. Apart from this considering the uniform statements of prosecution witnesses, I am of the view that the non signing of carbon copy of notice by the accused is of no help to the accused.
29. In Prabha Shankar Dubey Vs. State of M.P. S.C. No. 74/07 Page 18 of 30 [(2004) 2 SCC 56] the Hon'ble Supreme Court took the view that whether the requirement of section 50 has been met is a question which is to be decided on the fact of each case and there can not be any sweeping generalization and/or a straitjacket formula.
30. In Krishna Kanwar Vs. State of Rajasthan [(2004) 2 SCC 608], this question again came up for consideration before the Hon'ble Supreme Court and it was noted that there is no specific form prescribed or initiated for conveying the information required to be given under section 50 of the NDPS Act. The Hon'ble Supreme Court inter alia held as under:
"What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in presence of the officers named in the Section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there can not be any sweeping generalization and/or straitjacket formula."
31. In view of above discussion, I am of the view that the contention of ld. counsel for accused that the mandatory provisions of 50 NDPS Act shave not been complied with is without S.C. No. 74/07 Page 19 of 30 any substance.
32. The contention of ld. counsel for accused that mandatory provisions of Sec. 57 have not been complied with is also of no help to the accused. Section 57 NDPS Act reads as follows :
" Report of arrest and seizure Whenever any person makes any arrest or seizure, under this Act, he shall, within fortyeight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior".
33. PW 8 SI Rajbir Singh deposed in his testimony that he prepared report u/s 57 NDPS Act Ex.PW8/B regarding search and seizure of contraband and submitted to the SHO concerned. SI Sunil Jain also deposed he also prepared report under section 57 NDPS Act Ex.PW6/A regarding arrest of accused and produced the same before SHO through his reader. The testimonies of these two witnesses are corroborated with the statement of Inspt. Kharak Singh, SHO(PW5) who deposed that on 07.08.2007 these two reports under section 57 NDPS Act were produced before him by SI Rajbir Singh (PW 8) and SI Sunil Jain (PW 6) which he further forwarded to the office of ACP office. ASI Hasan Raja (PW 4) S.C. No. 74/07 Page 20 of 30 from the office of ACP Narcotic Branch brought the summoned records and deposed that on 07.08.2007 two reports under section 57 NDPS Act were received in the office of ACP which were further forwarded to DCP. Thus, statements of relevant prosecution witnesses show that provisions of section 57 NDPS Act have also been complied with and the contention of ld. counsel for accused is without any force.
34. It is next contended by ld. counsel for accused that accused was lifted from her residence and the telegram was also sent by the accused at about 11.30 am on that day i.e. 06.08.2007 to Hon'ble Chief Justice Delhi High Court and Commissioner of Police in this regard. Alleged telegram has not been proved on record by the accused. Even otherwise, as per the prosecution case, the accused was apprehended at about 8 am from the spot with the smack. The alleged telegram if any, appears to have been sent only for creating the defence in favour of accused. Possibility of knowing about the apprehension of accused with the contraband by her family members and thereafter sending the alleged telegram to the authorities for creating defence in her favour cannot be ruled out. Further in this regard no suggestion was put to SI Rajbir (PW8), SI Sunil Jain(IO) and Inspt. Kharak Singh (SHO) during S.C. No. 74/07 Page 21 of 30 their cross examination. The accused is also silent about this defence in her statement u/s 313 Cr.PC. Under these circumstances, this defence seems to be an afterthought and of no help to the accused.
35. As far as contention regarding overwriting in the arrest memo of accused is concerned, considering the uniform statements of prosecution witnesses, I am of the view that the alleged overwriting in the arrest memo of accused Ex.PW6/B by the IO is also of no consequence.
36. It is next contended that the accused was allegedly apprehended at a public place and despite availability, no public persons was examined by the prosecution in this case. It is well settled that the police officials are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scrutinize their statements very closely in order to form an opinion whether they are reliable and trustworthy.
37. In Ajmer Singh V. State of Haryana [(2010) 3 Supreme Court Cases 746], the Hon'ble Supreme Court observed as follows : "We can not forget that it may not be S.C. No. 74/07 Page 22 of 30 possible to find independent witness at all places, at all time. The obligation to take public witness is not absolute. If after making efforts which the court considered in the circumstances of the the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and recovery made would not be necessarily vitiated. The court will have to appreciate relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evualating their evidence".
38. In Dharam Pal V. State of Punjab [(2010) 9 Supreme Court Cases 608], the Hon'ble Supreme Court held as follows : "The case of the prosecution can not be rejected only on the ground that independent witnesses have not been examined, in case on appraisal of the evidence on record the court finds the case of the prosecution to be trustworthy. It has come in the evidence of the prosecution witnesses that an attempt was made to join person from public at the time of search but none was available. In the face of it mere absence of independent witnesses at the time of search and seizure will not render the case of the prosecution unreliable".
S.C. No. 74/07 Page 23 of 30
39. In judgment reported as Govt of NCT of Delhi Vs Sunil (2001) 1 SCC , 652 it is held that :
"It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police record are untrustworthy. As a preposition of law the presumption should be other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect S.C. No. 74/07 Page 24 of 30 signatures of independent persons in the documents made contemporaneous with such actions."
40. Reference can also be made to a judgment reported as Gyan Chand & another Vs. State and another (2005 Crl L. J. 3228 Hon'ble Allahabad High Court), wherein it has been laid down that the court has to assess worth of such evidence from the facts available on record and if these statements inspire confidence, it has to be accepted by the court for purpose of conviction of accused.
41. In the present case the recovery witnesses including SI Rajbir Singh who was the head of the raiding party deposed that on the way from the police station to the spot, public persons were requested to join the raiding party but none agreed and all went away showing their personal difficulties. W/HC Shiksha (PW9) also deposed during her cross examination that public persons have their genuine problems as they had to go to their workplace/office and they were in hurry. The recovery witnesses also deposed that even after apprehension of accused, public persons were asked to join the proceedings but none of them agreed and went away without disclosing their names and addresses showing their personal S.C. No. 74/07 Page 25 of 30 difficulties. The statements of the material witnesses are fully corroborated with each other without any contradictions that no public persons agreed to join the recovery proceedings. The reluctance of public persons to join the proceedings in criminal cases is well known and usually they do not come forward to become a part of investigation. Under these circumstances, I do not find any reason to disbelieve the consistent statements of prosecution witnesses that no independent/public witnesses was joined at the time of search and seizure proceedings of contraband from the possession of accused.
42. The contention of ld. counsel for the accused that the secret information is not specific has also no merits. SI Rajbir Singh (PW8) has categorically deposed that on 06.08.2007 at about 6 am, secret informer came to him and disclosed that accused Kaushalaya @ Talla who supplies smack in puriyas would get down from the bus at Mayur Vihar PhaseI and would go to her house at Trilokpuri. The statement of SI Rajbir Singh (PW8) is corroborated with the statement of Inspt. Kharak Singh, SHO(PW5) who also deposed about receiving of secret information by SI Rajbir (PW8). Further, accused was apprehended from the spot in pursuance of secret information. Under these circumstances it is not understood S.C. No. 74/07 Page 26 of 30 as to how the secret information was not specific.
43. Inspt. Kharak Singh (PW 5) deposed during his cross examination that he used to check the rojnamacha of police station daily and all the raiding party members were on duty on the day of incident i.e. 06.08.2007. As stated above the statements of recovery witnesses are consistent to each other about the apprehension of accused at the spot with smack. Under these circumstances, this plea is also of no help to the accused.
44. The defence witness (DW1) Sh. Israr Babu, Nodal Officer from Vodafone, Essar Mobile Services Ltd. Okhala deposed that the mobile no. 9811091704 was registered in the name of one Mr. R.S. Bhati. He also deposed that the call details of this mobile number is not available in his office as the call details of all the mobile phones are maintained for one year as per D.O.T. guidelines. During cross examination SI Rajbir Singh (PW8) deposed that this number was being used by him at the relevant time. In the absence of any call detail record, the testimony of DW1 is of no help to the accused.
45. Considering the evidence on record, the prosecution has proved beyond doubt that the accused was found in possession of contraband i.e. smack.
45. As per the prosecution case, total quantity of smack recovered from the accused was 125 grams. As per FSL report S.C. No. 74/07 Page 27 of 30 Ex.PW6/F, the sample of smack was found to contain 3.37% diacetylmorphine. In view of law laid down by Hon'ble High Court in Ansar Ahmed & Ors. V. State (Govt of NCT of Delhi (123 (2005) Delhi Law Times 563); NCT of Delhi V. Ashif Khan @ Kalu [2009 (2) RCR (Crl.) 267]; E. Micheal Raj V Intelligence Officer, Narcotic Control Bureau, 2008 (2) RCR (Criminal) 597 and Ouseph V. State of Kerala [2004 (4) SCC 446], the total quantity of diacetylmorphine in the smack recovered from accused was 4.21 grams, which is a "small quantity", as per the entry no. 56 of notification issued by Central Government in exercise of the powers conferred under clause (viia) and (xxiiia) of Section 2 of Narcotic Drugs and Psychotropic Substances Act.
46. In view of above discussion, the prosecution has been able to prove its case beyond reasonable doubts against the accused namely Kaushalaya @ Talla that she was found in possession of 4.21 grams diacetylmorphine, a contraband, which is a small quantity. Hence, accused is convicted under section 21 (a) of the NDPS Act.
Announced in the open court on 18.05.2011 (Sarita Birbal) ASJ: Spl. Judge(NDPS Act):
KKD Courts: Delhi.
S.C. No. 74/07 Page 28 of 30 IN THE COURT OF SMT SARITA BIRBAL: ASJ:
Spl. JUDGE (NDPS ACT): KKD COURTS(EAST): DELHI S.C. No: 74/07 State Versus Kaushalaya @ Talla Wife of Sh. Kailash Chand r/o 32/215, Trilokpuri, Delhi.
FIR No: 78/07
P.S.: Narcotic Branch
U/s. 21 NDPS Act
Order on Point of Sentence
1. The convict - Kaushalaya @ Talla has been convicted under section 21 (a) of the NDPS Act.
2. I have heard Sh. Ahmed Khan, ld. Substitute Addl. PP for the State and Sh. S.N. Qureshi, Advocate for the convict and also convict on the point of sentence.
3. It is submitted by the convict that she is an old aged sick lady and has to look after her widow daughter inlaw with her three minor children. Convict prayed that lenient view be taken against her while awarding sentence. She stated that she wants to lead a life of a good citizen.
4. On the other hand, ld Substitute Addl. PP submits that S.C. No. 74/07 Page 29 of 30 convict be sentenced with maximum punishment as prescribed under law as recovery of contraband i.e. smack was effected from the possession of convict.
5. As per the report of the Ahlmad, convict has already remained in judicial custody for a period of two months and 23 days in the present case. The recovered quantity of smack is small quantity.
6. Keeping in view the facts and circumstances of the case, and the period for which convict - Kaushalaya @ Talla has already remained in judicial custody during the trial of this case, convict is sentenced for the the period already undergone by her in judicial custody in this case and also to pay a fine of Rs. 2,000/ and in default of payment of fine SI for two months for the offence punishable u/s 21 (a) NDPS Act.
7. Copy of the judgment and order on sentence be supplied to the convict, free of costs.
8. Case property be confiscated to the State, after the expiry of period of revision/appeal, if any.
File be consigned to Record Room.
Announced in the open court (Sarita Birbal)
on 19.05.2011 ASJ: Spl. Judge (NDPS Act):
KKD Courts: Delhi.
S.C. No. 74/07 Page 30 of 30