Delhi District Court
State vs Mahender on 18 September, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDL. SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
FIR no.315/11
U/s 21(b) NDPS Act
PS Palam Village
SC No. 02/02/12
State
Vs.
Mahender s/o Chiranjee
.......... Accused
Challan filed on : 06.02.2012
Reserved for Order on: 03.09.2014
Date of decision: 18.09.2014
JUDGMENT
The facts in brief of prosecution case are that on 27.11.11 secret informer came to PS and informed that one person would come to sell smack at railway line, Raj NagarII and if raid is conducted he can be apprehended and smack can be recovered. DD no.41A was lodged and on the direction of SHO, a raiding party was formed comprising of SI Ranvir Singh, HC Rajesh and Ct. Krishan and they left the spot in State Vs.Mahender FIR No.315/11 Page No. 1 of 31 private car and on the way 56 passers by were asked to join the raiding party out of whom two were named as Attar Singh and Tarun but they all refused showing their inability. It is further the case of the prosecution that at about 9 p.m, accused was seen coming from the side of railway line and he was apprehended on the pointing out of secret informer. He disclosed his name as Mahender. Notice u/s 50 NDPS Act was given to him and accused was also informed about his legal right. It is further the case of the prosecution that search of accused was conducted and one transparent white colour type plastic polythene was recovered from right pocket of wearing pant. On checking some substance of light brown type colour was found which on smelling appearing to be smack. It was weighed and found to be 11 grams. It is further the case of the prosecution that out of the recovered substance, 2 gram smack was drawn as sample and kept in separate plastic polythene and remaining smack was sealed in separate polythene. Both the pullandas were sealed with the seal of RS and counter sealed by SHO with the seal of SSK. Form FSL was filled. Rukka was prepared and case was got registered through Ct. Krishan Kumar. It is further the case of the prosecution that accused was arrested. The case property was deposited in the malkhana State Vs.Mahender FIR No.315/11 Page No. 2 of 31 and thereafter sent to FSL for chemical examination. Report u/s 57 NDPS Act was sent to ACP and after completion of investigation, challan was filed.
2. After supplying the copies of the challan and accompanying documents to the accused persons, arguments on charge were heard and upon finding prima facie case against the accused, the charge against him was framed u/s 21(b) NDPS Act on 12.04.2012 to which the accused pleaded not guilty and claimed trial.
3. The prosecution in support of its case, in all has examined as many as 9 witnesses. PW4 SI Ranvir Singh is the IO and he has deposed that on 27.11.2011 at about 8.18 p.m secret informer came to PS and informed that one person would come to sell smack at Railway Line, Raj NagarII near Old Mehrauli Road and if raided he could be apprehended and smack could be recovered. DD no.41A Ex.PW4/A was lodged and SHO was informed. As per the direction of SHO, a raiding party was constituted consisting of HC Rajesh Kr, Ct. Krishan Kr and they left the spot in private car. On the way 56 passersby were requested to join the investigation, two State Vs.Mahender FIR No.315/11 Page No. 3 of 31 amongst them were Attar Singh s/o Sohan Lal and Tarun s/o Krishan Yadav but they all refused showing their inability. The raiding party team reached at the spot and took their position. He has further deposed that at about 9 p.m one person came from the side of railway line and he was apprehended on the pointing out of secret informer. The facts were brought to the notice of SHO who also reached at the spot. During interrogation, the name of that person revealed as Mahender s/o Chiranji Lal. Accused Mahender was BC of their area. He has further deposed that accused was informed about the secret information and notice u/s 50 NDPS Act was given to him. He was also informed about his legal rights that he can conduct the search of police officials and if he desires, Gazetted Officer or Magistrate can be called. Original copy of notice u/s 50 NDPS Act was given to the accused and accused had given his receiving on the original containing carbon. Accused refused to avail his aforesaid legal rights on the original copy. The contents of the notice were also read over & explained to the accused. The carbon copy of notice is Ex.PW1/B and reply of accused is from point X1 to X1. He has further deposed that SHO conducted the search of raiding party vide memo Ex.PW1/C and no contraband/illegal substances was recovered. State Vs.Mahender FIR No.315/11 Page No. 4 of 31 He has further deposed that he conducted the search of accused and during search one transparent/white colour type plastic polythene was recovered from his wearing right pant pocket. On opening the same, the substance was found to be light brown type and on smelling it was appearing to be smack. The total weight of the same came to be 11 grams out of which 2 gram smack was drawn as sample and kept in separate plastic polythene and remaining substance was kept in separate polythene. Both the pullandas were sealed with the seal of RS and counter sealed with the seal of SHO SSK. Form FSL was filled and seals were put on pullandas and FSL form. He has deposed that seal after use was handed over to Ct. krishan Kumar and SHO handed over his seal to HC Rakesh Kumar. The substance was seized vide seizure memo Ex.PW1/D. He has further deposed that SHO left the spot and went to PS alongwith both sealed pulladas, seizure memo and FSL form. He prepared rukka Ex.PW4/B and handed over to Ct. Krishan Kumar for registration of FIR. He has further deposed that he produced accused to ASI Omkar and informed him about the facts of the case. ASI Omkar prepared the site plan. He returned to PS vide DD no.47 copy of which is Ex.PW4/C. He identified the smack recovered from the accused as Ex.P1 and State Vs.Mahender FIR No.315/11 Page No. 5 of 31 sample substance Ex.P2 and original notice u/s 50 NDPS Act Ex.PW1/G. In cross examination, he has deposed that he cannot tell upto what time the secret informer remained with him in PS. SHO was not present at that time in the PS. He made call to SHO on his mobile no.8750871026 from his mobile 9819297742. The call was made at about 8.20 p.m. The private car no. was MH 12AF 1999 belonging to his relative Mahender Singh. The car was being used by him for the last about one month. He admitted that Mahender is not a witness in this case. They reached at the spot at about 8.45/9.00 p.m. I did not give any notice to public person namely Attar Singh and Tarun. He did not record the reason and the inability of public persons who refused to join the raiding party and investigation. There are residential houses and shops near the spot. He cannot exactly say at what time the accused was apprehended by them after reaching at the spot. The spot is at the distance of about one kilometer from the PS. He did not offer the search of his car which was being used by him to the raiding party. He cannot tell the exact time when the notice u/s 50 NDPS Act was served to the accused. There were only three police officials when the notice was served. He did not offer the search of his car to the accused before taking his search. He State Vs.Mahender FIR No.315/11 Page No. 6 of 31 asked the accused to take search of police party but he refused. He was having small weighing machine to weigh the substance. He did not offer the search of his bag to the members of the raiding party. He cannot say by which mode Ct. Krishan Kumar went to PS with rukka. They finally left the spot at about 11.20/11.25 p.m and reached in PS at about 11.30 p.m. He cannot say by which mode the accused was taken to PS from the spot. It is correct that his mobile phone was not taken by the IO in his possession by which he made a call to SHO. Two copies of the notice u/s 50NDPS Act was prepared by him. He obtained the signatures of the accused only on the carbon copy. He denied the suggestion that he did not go to the spot as stated by him. He denied the suggestion that nothing incriminating was recovered from the possession of accused. The accused was wearing light blue colour shirt and black pant.
4. PW9 ASI Onkar Singh has deposed that he alongwith Ct. Krishan reached at the spot where SI Ranbir handed over him carbon copy of notice u/s 50 NDPS Act and seizure memo of recovered substance and DD no.41A Ex.PW9/A. He prepared the site plan ExPW1/DX.He arrested accused vide memo Ex.PW1/E and conducted his personal State Vs.Mahender FIR No.315/11 Page No. 7 of 31 search vide memo Ex.PW1/F. He has deposed that in personal search of accused Rs.520/ in cash and original notice u/s 50 NDPS Act was recovered. The notice is Ex.PW1/G. After arrest, the wife of accused was informed about his arrest. On 28.11.2011 he prepared report u/s 57 NDPS Act and sent the same to ACP through SHO. The said report is Ex.PW7/B. On 13.12.2011, the sample of the recovered substance was sent to FSL through Ct. Jagbir vide RC no.96/21. In cross examination, he has stated that he was present in the PS on 27.11.11 because his residence is there. The patrolling started on 27.11.11 at 5 p.m. He was alone in the patrolling duty. The distance between the spot and the place where he was handed over the copy of FIR and rukka by Ct. Krishan Kumar is about 1 km. He reached at the spot at about 11.15 p.m. The place of apprehension of accused is surrounded by the residential houses and there is also a Raj Chat Bhandar opposite railway track. He did not ask any residents or any employee of Raj Chat Bhandar to join the investigation due to odd hours of night. He admitted that where the accused was arrested is a thoroughfare. Due to odd hours of night there was no passersby on the road available at that time so, he could not ask any person to join the investigation. The personal search memo was State Vs.Mahender FIR No.315/11 Page No. 8 of 31 shown to the witness with the question that in the notice it was mentioned that the original notice was recovered from the personal search of accused. However, at item no.2 it is written that notice u/s 50 NDPS Act and DD no.41 dated 27.11.11 are mentioned at point DX.
5. Mutatis mutandis PW1 HC Rakesh, PW2 Ct.Krishan Kumar have deposed to the same effect on all the material facts as per version of PW4 IO SI Ranvir Singh, therefore, it will be a futile exercise to discuss their testimony here for the reason of brevity.
6. PW3 Ct. Jagbir Singh Nain has deposed that on 13.12.2011 he had taken exhibits to FSL alongwith FSL form vide RC no.96/21 copy of which is Ex.PW3/A.
7. PW5 ASI Jagdish Rathee has deposed that he recorded DD no.35A which is Ex.PW5/A. He also recorded FIR of this case and copy of FIR is Ex.PW5/B. He has further deposed that he recorded DD no.46A copy of which is Ex.PW5/D. State Vs.Mahender FIR No.315/11 Page No. 9 of 31
8. PW6 Ct. Rakesh is the computer operator who typed the FIR no.351/11.
9. PW7 HC Rajender Kumar has deposed that report u/s 57 NDPS Act was received in ACP office on 28.11.2011 and it was put up before ACP. He has brought the entry register bearing no.5754 copy of which is Ex.PW7/A and report is Ex.PW7/B.
10. PW8 Insp.Satyavir Singh has deposed that on 27.11.2011 he instruct SI Ranvir to conduct raid and at about 9 p.m he was told that accused has been apprehended. He went to the spot where a notice u/s 50 NDPS Act was served upon accused and he was also informed about his legal rights but accused did not incline to avail his legal rights. He took the search of raiding party and he did not find any contraband in their search. He prepared seizure memo of search Ex.PW1/C. The search of accused was taken by SI Ranbir and one white colour plastic panni was recovered which was found to be smack weighing 11 grams. He has further deposed that two gms of smack was taken as sample and sealed with the seal of RS. Form FSL was filled. He affixed his seal of SSK. He State Vs.Mahender FIR No.315/11 Page No. 10 of 31 handed over his seal to HC Rakesh Kumar. He has further deposed that FSL form, both the pullandas and seizure memo were handed over to him. He proceeded to the PS. He called MHCM with register no.19. In the meantime, rukka was also brought to the duty office and FIR was registered. He called duty officer in his officer. He deposited the aforesaid pullanda, FSL form and copy of seizure memo with MHC(M) after filling the particulars of FIR on the aforesaid articles. MHCM made entries in register no.19. He has further deposed that ASI Onkar Singh put up before him a report u/s 57 NDPS Act which was sent to ACP through diary register. He identified the case property.
11. PW8 HC Rattan Singh has deposed that he made entry with regard to deposit of case property in malkhana. The copy of relevant entry is Ex.PW8/A. He further deposed that on 13.12.2011, one pullanda & FSL form was sent to FSL through Ct.Jagbir vide RC no.96/21 Ex.PW8/B and acknowledgment handed over to him is Ex.PW8/C.
12. The statements of accused u/s 313 Cr.PC was recorded wherein the accused has stated that he has not State Vs.Mahender FIR No.315/11 Page No. 11 of 31 committed any offence. Police has planted the alleged case property upon him falsely. He was lifted by the police from his house on 27.11.11 at about 7.30 p.m. Thereafter the case was fixed for final arguments.
13. I have heard the final arguments from the Ld. Counsel for the accused as well as Ld. Addl.PP for the State. Ld. Addl.PP for the State has drawn the attention of the court on the statements of witnesses and their cross examinations and stated that the prosecution has proved its case beyond reasonable doubts. It is submitted that all the relevant provisions have been complied with by the prosecution. So, accused may kindly be convicted.
14. Ld. Counsel for the accused has also drawn the attention of the court on the testimonies of witnesses and pointed out various contradictions. He has submitted that there is no public witness associated by the police at the time of seizure of alleged smack. Ld. Counsel submitted that there is delay in sending the samples to FSL. It is further submitted that IO of this case has not explained the notice u/s 50 NDPS Act to the accused and that it was prepared in the PS. Ld. State Vs.Mahender FIR No.315/11 Page No. 12 of 31 Counsel has submitted that the accused may kindly be acquitted in this case as the case of the prosecution is doubtful.
15. Dealing with the first contention of the Ld. Counsel regarding contradictions in the statements of witnesses, In case law State of Rajasthan Vs. Kalki, AIR 1981 SC 1390 their Lordships have observed that in the deposition of witnesses there are always normal discrepancies, however honest and truthful they may be. It was further observed that these discrepancies are due to normal errors of observations, normal errors of memory, due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence and the like. It was also observed that material discrepancies are those which are not normal and are not expected of a normal person. The infirmities pointed out, in my considered opinion, keeping in view the observations made by their Lordships of Supreme Court, cannot be said to be material or significant which go to the root of matter, particularly, when basic facts have been proved from the documents proved on record.
16. Another contention of the Ld. Counsel is that no State Vs.Mahender FIR No.315/11 Page No. 13 of 31 public witness was associated by the police at the time of seizure of smack. The present case hings solely on the testimony of official witnesses. The court has to presume that official acts are performed in due course of law. It will not be correct approach to suspect the integrity of police officials. Their testimonies has to be appreciated like any other witness. However, it is rule of caution that Court should scrutinize the testimony of police officials with utmost care and caution to assure itself of its credibility. The lack of cautious approach is likely to cause miscarriage of justice. In case Law Munshi & Ors Vs. State 20(1981) DLT(SN) 26 it has been observed that public generally hesitate to associate with police therefore the police has to take help of person known to them or the complainant. In case Natho Singh Vs. State, AIR 1973 SC 2763 it has been held that evidence of police officials cannot be discredited in the absence of the hostility to the accused. In case State Vs. M.M.Methew, AIR 1978 SC (1571) it was held that evidence of police officials cannot be branded as highly interested only on the ground that they are interested in the success of their case. In Appa Bhai Vs. State of Gujarat AIR 1988 SC 696 it has been held that civilized people are generally insensitive when a crime is committed in their State Vs.Mahender FIR No.315/11 Page No. 14 of 31 presence. They keep themselves away from the court unless it is inevitable and they try to avoid to involve themselves. In 'Ajmer Singh vs. State of Haryana', 2010 (2) SCR 785, the Supreme Court held that it is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witness is not absolute. If the police officer is unable to join any public witness after genuine efforts, the recovery made by the police officer would not be vitiated. The Hon'ble Supreme Court held that in such circumstances, the Court will have to appreciate the relevant evidence to determine whether the evidence of a police officer is believable so as to place implicit reliance thereon. In the present case, the raid was conducted between 9 to 10.00 p.m. PW4 SI Ranvir Singh, IO of the case, has stated that on the way he had requested 56 passersby to join the investigation and they were duly informed about the secret information but only two amongst them disclosed their names as Attar Singh s/o Sohan Lal and Tarun s/o Sh. Krishan and rest refused to tell their names but they all including the above persons refused to join the raiding party showing their inability and they all went away. He has stated in cross examination that he did not give any notice to public persons namely Attar Singh and Tarun and State Vs.Mahender FIR No.315/11 Page No. 15 of 31 no action was taken against them. He did not know the work of Attar Singh and Tarun. There are residential houses and shops near the spot at some distance. Attar Singh and Tarun are the residents of nearby. He does not know their addresses. PW8 Insp.Satyaveer Singh has stated in cross examination that there are residential houses, shops at some distance from the spot. He asked 45 shopkeepers to join the proceedings but none agreed. No notice was given to them. One of the public person was namely Radhey Shyam and another Krishan Kumar. PW9 ASI Onkar Singh, who is second IO has stated in cross examination that it is correct that where the accused was arrested by him that is a thoroughfare. Due to odd hours of night there was no passersby on the road available at that time so, he could not ask any person to join the investigation. Admittedly, PW8 has come to the spot after registration of FIR and he arrested the accused. PW1 HC Rakesh Kumar and PW2 Ct. Krishan Kumar have also deposed regarding requesting 56 passersby to join the raiding party and that Attar Singh and Tarun disclosed their names but they also refused to join the investigation. In the instant case, there are no cogent and valid reasons to discard/ suspect the testimony of the police officials who had no prior acquaintance with the accused and did not nurture any State Vs.Mahender FIR No.315/11 Page No. 16 of 31 grievance against him. Accused had no familiarity with any of the member of the raiding team. The accused did not give reasonable and plausible explanation about his presence on that day at the spot. This fact remained unexplained by the accused in his statement recorded u/s 313 Cr.PC. In 313 statement, accused has deposed that he was lifted from his house on 27.11.11 at about 7.30 p.m. and falsely implicated in this case. But accused has failed to lead any defence to show that he was lifted from his house on 27.11.11 at about 7.30 p.m or that he was not available at the spot. In the absence of prior enmity or animosity, members of raiding team unaware about the accused antecedents, were not expected to falsely rope him in this case. In view of the above authorities, I am of the view that keeping in view the general disinclination on the part of the people at large to join the police investigation, it cannot be said that there was any avoidance or evasion on the part of first IO in joining independent witnesses. No ulterior motive was assigned to the police officials for falsely implicating the accused. I am, therefore of the view that nonjoining of the independent public witnesses in the factual matrix of the case was beyond the control of the police and it is not a circumstance to raise suspicion about the motives of the police officials. State Vs.Mahender FIR No.315/11 Page No. 17 of 31
17. It is further contented that there is delay in sending the samples to FSL. Considering the evidence on record, the recovery was effected on 27.11.11. PW3 Ct.Jagbir Singh has taken the samples to FSL on 13.12.2011. At the time of taking the pullandas from MHCM, the same were found duly sealed as he has deposed that the exhibits were sealed with the seal of RS and SSK. FSL result Ex.PX confirms that the parcel1 was sealed with the seal of RS and SSK when received in FSL office. As per evidence, the seals after use were handed over to HC Rakesh Kumar and Ct. Krishan Kumar. Ld. Defence counsel has failed to put any question to HC Rakesh Kumar & Ct. Krishan Kumar as to when the seals were returned by them or any question to SI Ranvir (PW4) and Insp.Satyavir(PW8) as to when they took back their seals from the said police officials. It is on record that case property was deposited in malkhana 27.11.2011 as deposed by PW8 Insp. Satyaveer Singh and entry to this effect was also made through MHCM PW1 HC Rattan Singh. The copy of entry is Ex.PW8/A. I have perused the said entry. After 27.11.2011, the case property was not taken out by anyone till 13.12.2011, the date when it was sent of FSL. The pullandas were bearing two seals of 'RS' and State Vs.Mahender FIR No.315/11 Page No. 18 of 31 'SSK'. There is no evidence that after deposit of case property in malkhana, it was again opened or taken back. So, there will be no affect on the case of the prosecution. The samples were sent to FSL on 13.12.11 and recovery was effected on 27.11.11. In case law Lama Tamang Vs. State of NCT of Delhi, 2006(3) JCC Narcotic 197 it has been observed that the report given by FSL without any adverse comment is sufficient'.
18. Delay in sending parcel to the FSL is not fatal especially when as per the FSL report, the seals are intact and tallied with the specimen seals. In State of Rajasthan vs. Daul @ Daulat Giri 2009 (14) SCC 387 it was held that "1. The factual scenario goes to show that Jaswant Singh (PW.1), the I.O., seized the articles on 15/6/1995. The search memo is Ex. P.4 and the specimen impression of the seal Ex. P.5. PW1 deposited the seized articles and sample with Bhanwarlal (PW.8) who was the Malkhana InCharge in the Malkhana register in Ex.P.15A. PW.8 handed the material to Surendera Singh (PW.5) for depositing the sample in FSL. PW5 reached the Superintendent of Police office and gave the samples to Jamnalal at 10.00 a.m. and received back the samples from State Vs.Mahender FIR No.315/11 Page No. 19 of 31 Jamnalal at 5.00 p.m. and also obtained forwarding letter which is Ex. P.12 and is dated 20/6/95. PW5 submitted the samples to FSL and obtained acknowledgment receipt it is Ex. P.13. The role of Jamnalal is very limited; that is receiving sample at 10.00 a.m. and handing samples back at 5.00 p.m. It is not understandable as to how the nonexamination of Jamnalal in any way affected the veracity of the prosecution version. The High Court came to an attempt and unsustainable conclusion that because Jamnalal was not examined "possibility of the sample having been tampered with could not be ruled out". The conclusion is unsustainable in view of the FSL report which clearly stated that the seals were intact and matched with the specimen seals."
19. In Hardip Singh vs. State of Punjab 2008 (8) SCC 557 it was held that "16. So far as the question of delay in sending the samples of opium to the Forensic Science Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of the appellant stands proved and established by cogent and reliable evidence led in the trial. PW 5 has categorically stated and asserted about the recovery of State Vs.Mahender FIR No.315/11 Page No. 20 of 31 opium from the possession of the appellant, which fact is also corroborated by a higher officer, namely, SS Mann, DSP who was also examined at length during the trial. The said recovery was effected in the presence of the said SS Mann, DSP, as senior police officer, who also put his seal on the said parcels of opium.
17. The then Station House Officer, Inspector Baldev Singh, who was examined as PW 1, was posted at Police Station Ajnala on the date of occurrence. He received the said samples of opium along with case material, being produced before him by PW 5. It has come on evidence that Inspector Baldev Singh kept the entire case property with him till it was deposited in the office of the Chemical Examiner, Amritsar on 30.9.1997 through ASI Surinder Singh,(PW3). It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the appellant. In that view of the matter, delay of about 40 days in sending the State Vs.Mahender FIR No.315/11 Page No. 21 of 31 samples did not and could not have caused any prejudice to the appellant. The aforesaid contention,therefore, also stands rejected".
20. Once the original Malkhana register is produced in the Court by PW8 HC Rattan Singih, which is seen and returned and copy thereof exhibited as Ex. PW8/A, copy of RC is Ex.PW8/B and case property deposit receipt Ex.PW8/C and when PW8 as well as PW3 Ct.Jagbir Singh have stated that till the case property remained in their possession no one tempered the same, there is no mandatory requirement to produce the FSL form, especially when the seals have been found to be intact. The samples have been deposited on 13.12.2011 by PW3 Ct.Jagbir. He was crossexamined by the counsel for the accused but no explanation was sought either from him or IO of this case that the samples were sent after delay of about 15 days. In view of the settled legal principle that if the testimony of the witness has to be discredited, the relevant fact should be put to him so that he gets the chance to offer the explanation but it has not been done in this case. In State of U.P. vs. Nahar Singh 1998 (3) SCC 561 it was held that "13. It may be noted here that part of the statement of PW1 was not cross State Vs.Mahender FIR No.315/11 Page No. 22 of 31 examined by the accused. In the absence of cross examination on the explanation of delay, the evidence PW1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of crossexamining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned: (1) to test his veracity (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
21. 14. The often quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6. The Reports 67 clearly elucidates the principle underlying those provisions. It reads "I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that State Vs.Mahender FIR No.315/11 Page No. 23 of 31 imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses. This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing".
22. Coupled with the fact that the FSL report Ex.PX clearly mentioned that the seals were intact, it can be said that the prosecution has been able to prove the link evidence. In the present case in hand, there is no evidence or the suggestion from the Ld. Defence counsel that the case property was State Vs.Mahender FIR No.315/11 Page No. 24 of 31 tempered with during the period it was lying in malkhana. The seals were intact when the samples were deposited in FSL. There is also no question from the Ld. Counsel to any witness that there is delay in sending the samples to FSL. In view of the above case laws,I am of the view that delay in sending the samples is not fatal to the prosecution in the present case.
23. Another contention of the Ld. Counsel is that IO of this case has not explained the notice u/s 50 NDPS Act to the accused and that it was prepared in the PS. PW4 SI Ranvir Singh has stated that accused was informed about the facts of the aforesaid secret information relating to smack and a notice u/s 50 NDPS Act was served upon the accused vide DD no.41A and he was informed about his legal rights that they had secret information that he is in possession of smack and his search is to be conducted and that if he desires he could be produced before any Gazetted officer or a Magistrate and their presence can be secured at the spot and if he desires he can also conduct the search of the raiding party and the vehicle with the police. Original copy of notice u/s 50 NDPS Act was given to the accused and accused had given his receiving on the original containing carbon. Accused refused to avail his aforesaid legal State Vs.Mahender FIR No.315/11 Page No. 25 of 31 right on the original copy of the notice with carbon copy and his acceptance of the notice and his refusal to avail his legal rights was written by him on his narration as he told that he is illiterate. He has further deposed that the contents of notice u/s 50 NDPS Act was read over and explained to him. The carbon copy of the notice is Ex.PW1/B and reply of the accused is from X1 to X1 written by him on the direction of accused. Similar is the statement of PW1 HC Rakesh Kumar, PW2 Ct.Krishan Kumar and PW8 Insp.Satyaveer Singh regarding service of notice u/s 50 NDPS Act upon the accused. I have also perused their cross examinations. No question has been put to PW8 in this respect. PW4 has stated that he cannot tell the exact time when the notice u/s 50 NDPS Act was served to the accused. There were only three police officials when the notice was served. He did not offer the search of his car to the accused before taking his search. He offered the accused to take search of the police party but he refused. PW2 Ct. Krishan Kumar has stated that he had signed on the notice u/s 50 NDPS Act at about 9.45 p.m. He had gone through the contents of notice u/s 50 NDPS Act. It is correct that there is no mention of search of car in the notice. PW1 has denied the suggestion of Ld. Counsel that no notice u/s 50 NDPS Act was served upon State Vs.Mahender FIR No.315/11 Page No. 26 of 31 the accused. On perusal of the statement of PW4 SI Ranvir who served the notice u/s 50 NDPS Act, it is revealed that no suggestion has been put to him by the Ld. Defence counsel that he has not served any notice u/s 50 NDPS Act to accused. In consideration of the evidence on record, I have also perused the notice Ex.PW1/B. On perusal of the same it is revealed that the accused has been given an option to be search in the presence of Gazetted Officer of Magistrate. But he refused from point X1 to X1 on the notice. PW4 has clearly stated that the notice was explained to accused. Accused has put his thumb impression on the notice. Further, in personal search conducted by PW9 ASI Onkar Singh (second IO) a sum of Rs.520/in cash alongwith original notice u/s 50 NDPS Act was recovered. The said notice is Ex.PW1/G. I have perused the personal search memo Ex.PW1/F wherein at sr.no.2 it is clearly mentioned that notice u/s 50 NDPS Act was recovered alongwith other papers/cash. No suggestion has been put by the Ld. Defence counsel to PW9 ASI Onkar Singh that he did not recover any notice in the personal search of accused.No question has been put any of the witness of investigation by the Ld. Defence counsel that the notice was not read over and explained to accused. Recovery of notice u/s 50 NDPS Act State Vs.Mahender FIR No.315/11 Page No. 27 of 31 during personal search conducted by PW9 ASI Onkar Singh (second IO) clearly establish that the notice Ex.PW1/B was duly served upon accused by PW4 SI Ranvir Singh. The thumb impression of the accused is available on the notice. In my view, there is sufficient compliance of sec.50 NDPS Act. The contention of the Ld. Counsel, is therefore not well founded.
24. I have considered the evidence on record. On the basis of evidence, I come to the conclusion that all the witnesses specially PW1 HC Rakesh Kumar, PW2 Ct. Krishan Kumar, PW4 SI Ranvir Singh and PW8 Insp.Satyavir Singh have corroborated the statements of each other regarding recovery of smack from accused Mahender weighing 11 grams with polythene. PW4 SI Ranvir Singh has stated that he recorded DD no.41A, Ex.PW4/A regarding the information and the fact of secret information was brought to the notice of SHO. So, there is sufficient compliance of sec.42 of NDPS Act. Rukka was prepared and sent to PS through Ct.Krishan Kumar for registration of FIR. PW8 Insp.Satyaveer was present at the spot and pullandas, form FSL were handed over to him and he took the same and deposited in Malkhana. He has State Vs.Mahender FIR No.315/11 Page No. 28 of 31 specifically stated that he put his seal on pullanda and FSL form at the spot. He went to PS where he put the FIR number on the documents and deposited the case case property in malkhana. PW8 HC Rattan Singh has corroborated his version that Insp.Satyaveer deposited the pullandas in malkhana with FSL form against which he made entry vide Ex.PW8/A. No suggestion has been put to PW8 Insp.Satyaveer that he did not put his seal on the pullandas or that he did not deposit the same in malkhana. So, there is compliance of sec.55 of NDPS Act. PW9 ASI Onkar Singh has stated that he prepared the report u/s 57 NDPS Act and sent the same to ACP through SHO. PW8 Insp. Satyaveer has stated that ASI Onkar put up a report u/s 57 NDPS Act before him on which he made his endorsemnt Ex.PW7/B and sent the same to ACP Dabri. The prosecution has also examined PW7 HC Rajender Kumar from ACP office who deposed that report u/s 57 NDPS Act was received in the office which was put up before ACP Sh Mahender Singh and entry in this respect was made in register at sr.no.5754 copy of which is Ex.PW7/A and report received is Ex.PW7/B. I have perused the cross examination of PW8 Insp. Satyaveer and PW9 ASI Onkar but no question has been put to PW9 that he did not send the report to SHO and no question has been put to State Vs.Mahender FIR No.315/11 Page No. 29 of 31 PW8 Insp.Satyaveer that he did not forward the same to ACP office. The evidence on record clearly indicate that report u/s 57 NDPS Act was duly sent to ACP office which was received there vide Ex.PW7/A. In view of the corroborative evidence, there is compliance of sec.57 of NDPS Act. So, there is sufficient compliance of provisions of NDPS Act in this case. The testimonies of witnesses could not be shattered by the Ld.counsel for accused in cross examination. Accused has taken the plea in his statement recorded u/s 313 Cr.PC that he has been falsely implicated in this case by the police. But he has failed to lead any evidence in this respect. He even did not specify as to why he has been falsely implicated in this case. Further, neither accused nor his family members have lodged any complaint to any authority regarding his false implication. In my view, the accused has taken such a plea only for the sake of plea but he could not prove the same. Accordingly, the prosecution has proved its case that on 27.11.2011 at about 9.00 p.m, at railway line opp. Raj Chat Bhandar, Raj NagarII, Palam, New Delhi 11 grams of smack with polythene was recovered from accused Mahender. Even if it is assumed that the weight of the polythene was 1 grams, even then it can be safely held that the smack of intermediate quantity was State Vs.Mahender FIR No.315/11 Page No. 30 of 31 recovered from the accused. Report of FSL Ex.PX confirms that the recovered substance was found to contain Diacetylmorphine (ii) 6monoacetylmorphine (iii) Acetylcodeine (iv) Papaveerine and (v) Acetaminophen.
25. In consideration of my above discussions, I am of the view that the prosecution has successful in proving that smack in intermediate quantity was recovered from accused Mahender. I, therefore, hold accused Mahender guilty for the commission of offence punishable u/s 21(b) of NDPS Act and convict him thereunder.
Announced in the open Court on 18.09.2014.
(SURESH CHAND RAJAN) ADDL.SESSIONSJUDGE/ SPECIAL JUDGE(NDPS) (South West District) Dwarka Courts/ NEW DELHI State Vs.Mahender FIR No.315/11 Page No. 31 of 31