Delhi District Court
State vs . Shakun Singh on 25 February, 2010
IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS
PATIALA HOUSE COURTS : NEW DELHI
Date of Institution: 8/12/2004
Judgment reserved on: 23/2/2010
Date of pronouncement: 25/2/2010
SC No. 125/07
ID No. 02403R05866652004
FIR 62/04
P.S. Nr. Branch
U/s. 21 NDPS Act
State Vs. Shakun Singh
S/o Sh. Ram Pal Singh
R/o. Krishana Garage, Main Road
Neer Jain Petrol Pump, Etah UP
JUDGMENT
1. Prosecution case in brief is that on 19/8/2004 at 10:00 a.m. a secret information was received by SI Brij Pal that Shakun Singh and Arvind Kumar r/o Etah, U.P. involved in supplying of smack in Delhi would come in between 11:00 - 11:30 a.m. to supply smack to someone near the parking of the Kalawati Hospital. This information was conveyed to SHO Insp. P.S. Hooda who after discussing it with the informer, passed on to ACP Sh. Mehar Singh who directed to 1 conduct raid. DD No. 16 regarding secret information was lodged.
2. SI Brij Pal constituted a raiding party comprising of himself, Ct. Shakir Hussain, HC Vinod, HC Satbir Singh and Ct. Kuldeep. They alongwith secret informer left the PS in a govt. vehicle DL1V 3570. He requested some persons to join but none agreed. At 11:15 a.m. he saw a person coming from the side of main entry gate towards OPD parking holding a light yellow colour polythene in his left hand. On the pointing of informer, he was apprehended. He revealed his name Shakun Singh. He was apprised of the information. A notice u/s 50 NDPS Act was served upon him apprising of his legal right to be searched before a Gazetted Officer/Magistrate on which he recorded his refusal. His search was conducted. From the polythene, a packet containing light yellow colour powder was recovered which on testing with the field testing kit gave positive for heroin weighing 1.500 kg. Two samples of 5 grams each were drawn. The samples and the case property were sealed with the seal of 3 APS NB DELHI, form FSL was prepared on the spot on which same seal impression 2 was put. The seal after use was given to HC Vinod. Rukka along with the case property was sent to the Police Station through Ct. Kuldeep. He handed over the rukka to duty officer to record FIR. He produced the case property before the SHO who put his seal of 1 SHO NBR DELHI, called Moharrar Malkhana with register number 19 and got it entered. Search of Arvind was made but he was not found. Further investigation was conducted by SI Yashpal. He prepared the site plan and arrested the accused. From the search of accused, copy of notice u/s 50 NDPS Act was also recovered. The sample was sent to the FSL for analysis. As per the report, the powder was found to contain diacetylmorphine with its purity 5.7%. After investigation, he was sent for trial for offence punishable u/s 21 NDPS Act.
3. On his appearance, after complying with the requirements contemplated under section 207 Cr.P.C and hearing arguments, prima facie case was made out and the charge was framed against the accused under section 21 (c ) of NDPS Act. Accused pleaded not guilty and claimed trial.
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4. To substantiate its allegations against the accused, prosecution examined as many as nine witnesses.
PW1 Ct. Ashok Kumar had taken sample vide RC no.
158/21 from the Malkhana moharrar for depositing it to FSL Rohini. He stated that the sample was not tempered so long it remained in his possession.
PW2 Ct. Kuldeep was the member of raiding party. He had taken the rukka to PS for registration of the case. He proved notice u/s 50 NDPS Act ExPW2/A, seizure memo ExPW2/B. He also identified the case property ExP1 to ExP5.
PW3 H Ct. Gyan Prakash was duty officer. He recorded DD no. 28 ExPW3/A, FIR ExPW3/B on the basis of rukka brought by Ct. Kuldeep and DD no. 33 ExPW3/C. PW4 HC Vinod Kumar remained with IO during the investigation. He had received the seal after use. He proved arrest memo ExPW4/A and the personal search ExPW4/B. PW5 ASI Hasan Raza proved the receipt of two reports u/s. 4 57 NDPS Ex. PW5/A and B, report u/s 42 NDPS Act ExPW5/C in the office of DCP which were entered in register vide entries ExPW5/D to F on which the DCP put his initials.
PW6 SI Brij Pal was the person who had received the information and led the party. He proved the rukka ExPW6/A, report u/s 57 NDPS Act ExPW6/B, pointing out memo ExPW6/C, DD no. 16 ExPW6/D and DD no 17 ExPW6/E. He identified the case property ExP1 to ExP5.
PW7 SI Yashpal Singh did the investigation after registration of the case. He prepared the site plan ExPW7/A, arrested the accused, prepared personal search memo, recorded his disclosure statement and prepared arrest report u/s 57 NDPS Act.
PW8 Prem Singh Huda was the SHO posted at PS Narcotics branch at that time. He put his seal on the pullandas, called the MHC(M) got the entry made in register no. 19 and recorded DD no. 29 ExPW8/A. He got the sample deposited in FSL Rohini through Ct. Ashok. He stated that two reports u/s 57 NDPS Act regarding seizure Ex. PW5/A and arrest of the accused ExPW5/B were 5 submitted to him by SI Brij Pal and SI Satish Rana which he forwarded to the senior officers.
PW9 ASI Jagat was the moharrar malkhana. He had received the parcels bearing the seal of 3APS NB DELHI and 1SHO NBR DELHI, made entry in register number19. On same day, he had also received personal search of the accused. He proved the entries in the malkhana register ExPW9/A. He stated that on 27/8/04 he had got the sample mark A sent along with form to FSL through HC Harcharan vide RC no 10/21 ExPW9/B but it could not be deposited. Again on 31/8/2004 samples were sent through Ct. Ashok vide RC no. 158/21 to FSL. He made the relevant entries ExPW9/C. He stated that on 25/10/2004 sealed parcel Mark A was deposited with him by Ct Praveen vide ExPW9/D and he handed over the result to IO vide ExPW9/E.
5. Statement of accused U/s 313 Cr.P.C was recorded, wherein he denied the prosecution case and stated that he was falsely implicated in this case. He examined his father Sh. Rampal 6 Singh as defence witness who stated that Arvind Yadav had come in his garage for repair of his gypsy and took his son with him for purchasing some parts. In the evening police officers came and told him they have apprehended Arvind along with smack. Arvind was left by police after taking money however his son i.e. accused Shakun was implicated after lifting from Maharaja Hotel.
6. I have heard the arguments advanced by Ld. APP for the State and Ld. Counsel Sh. Sameer Chandra for the accused.
7. Ld. APP has contended that the prosecution has been able to prove its case to the hilt. All the material witnesses have entered into the witness box and they have fully supported the case of the prosecution and corroborated one another on each and every aspect of the case. Link witness is also found to be in existence and all the relevant documents and entries made in register no. 19 have been duly proved. The FSL report is per se admissible in evidence as per which the sample contained diacetylmorphine with its purity 5.7%. 7
8. Ld. defence counsel per contra argued that the accused has been falsely implicated by lifting from Maharaja Hotel at Paharganj. No independent witness was joined. The accused Arvind Yadav was let off by the police and the case property was planted on the accused. He has also argued that there are material contradictions in the testimony of prosecution witnesses and there is unexplained delay in sending the sample to FSL. The entries in the register were manipulated and it is a fit case where the accused be given benefit of doubt.
9. I have carefully considered the submissions and perused the entire material on record in the backdrop of aforesaid contentions.
10. In this case prosecution has examined three witnesses of recovery i.e PW2, PW4 and PW6 (first investigating officer). Perusal of their testimony reveals that PW6 had received the secret information which he had recorded vide DD ExPW6/D. He had 8 produced the informer before PW8 who after discussing it with the informer passed on to ACP Sh. Mehar Singh. PW5 has stated that the report u/s 42 ExPW5/C was received in the office of DCP on which the DCP had put his initials. The reports ExPW5/C shows that it was forwarded by the SHO on 19/8/2004 vide diary no. 2950 and on the same day ACP put his initials. As per the information, accused Shakun Singh had to come with Arvind Kumar on 19/8/2004 in between 11:0011:30 am. near the parking of Kalawati hospital to supply smack to someone. The information was received at 10:00 a.m. A departure entry 17 ExPW6/E was also made on 19/8/2004 at 10:45 a.m. The prosecution witnesses deposed that they reached at the spot at 11:00 am, waited for the accused who came at around 11:15 a.m. They stated that the accused was apprehended at 11:20 a.m. and after telling him the information and giving him notice ExPW2/A apprising of his legal rights to be searched before a Gazetted Officer or a Magistrate, search of the bag in possession of the accused was taken which contained a polythene which had 1.5 kg. of heroin. They proved the sample proceedings and stated that 9 the case property and the samples were sealed with the seal of 3 APS NB DELHI. PW2 stated that he had taken the rukka ExPW6/A at 2:30 p.m. along with the case property, FSL form and copy of the seizure memo. The endorsement on the rukka shows that it was sent at 2:30 p.m. PW2 stated that he reached at the PS at 2:45 p.m. The FIR ExPW3/B shows that the rukka was received at the PS at 2:45 p.m. PW2 stated that he had produced the case property before the SHO who put his seal of 1 SHO NBR DELHI on the pullandas and the FSL form and called the moharrar malkhana which fact is corroborated by PW8. He stated that he had also put FIR no. on all the parcels and FSL form, called the MHC(M) PW9 with register no. 19, deposited the case property and the samples as per the seizure memo entry of which was made by PW9 under his supervision and to that effect he had lodged DD ExPW8/A. Nothing could be elicited to doubt on their testimony. All the witnesses remained consistent and cogent qua the recovery made from the accused Shakun.
11. PW7 stated that he came at the spot after registration of the 10 case and prepared the site plan ExPW7/A at the instance of PW6. He stated that during investigation he recorded the statement of witnesses, arrested the accused vide arrest memo ExPW4/A and conducted his personal search vide memo ExPW4/B. Memo Ex. Pw4/B shows that the copy of notice u/s 50 NDPS act was recovered from the personal search of the accused. He stated that on interrogation accused made disclosure ExPW4/C, his police custody remand was taken, he was taken to the house of coaccused Arvind where he pointed out the place vide ExPW7/B but accused Arvind was not found. He categorically denied the suggestions that accused did not point out the house of Arvind or accused was falsely implicated by planing the case property on his person, or that accused was lifted from Maharaja Hotel Pahar Ganj or that he did not go to Etah. PW6 stated that he had also gone to Etah to arrest Arvind on the night of 19/8/2004 but he was not found and again he went to Etah with PW7.
12. PW6 stated that after the recovery, he submitted the 11 seizure report u/s 57 NDPS Act ExPW6/B which he forwarded to PW8. Testimony of PW8 and PW5 reveals that the report was sent to the senior offices entry of which was also made in the register. PW7 had sent report of arrest u/s 57 NDPS Act which fact is also proved by PW8 and PW5. As per seizure and arrest report, accused was arrested on 19/8/2004 with 1.5 kg. of heroin.
13. Prosecution have examined link ie namely PW6 who had seized the case property and sealed it, PW2 who had produced the case property and samples along with FSL form before PW8, the SHO PW8 who had put his seal of 1 SHO NBR DELHI and got it deposited in the malkhana, PW9 who had made entry in the register and sent the sample to FSL through PW1. The case property and the samples were also produced in the court. The seals were found intact and no tampering was observed. Thus all the procedural safeguards were followed as guided in the case Ritesh Chakarborty V. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150.
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14. Ld. counsel has contended that due compliance u/s 50 NDPS Act was not made. PW4 has stated that the notice ExPW2/A and the disclosure statement ExPW4/C are in the handwriting of the same person i.e. PW6 which is not possible as PW7 has stated that he had recorded the disclosure statement. I do not agree with Ld. counsel as PW6 has specifically stated that he had recorded the disclosure statement on the instructions of PW7. So aforesaid documents could be possible in the handwriting of one person.
15. Ld. counsel has further argued that as per PW9 and the malkhana register no.19 ExPW9/A the sample mark A was sent on 27/8/2004 through HC Harcharan but this fact was denied by PW8. PW7 did not say that the sample was sent on 27/8/2004. Ld counsel further argued that on the copy of the register no. 19 supplied to the accused date of 27/8/2004 is mentioned but when PW9 came in the witness box he has given the copy of the entry bearing the date of 31/8/2004. So possibility of manipulation and tampering with the case property cannot be ruled out. I find the contentions sans merit. Entry 13 ExPW9/D i.e. the document filed with the charge sheet shows the date at the bottom of the signature of the MHCM as 27/8/2004 but on the body the date of 31/8/2004 has been mentioned. PW1 has stated that he had taken the samples on 31/8/2004. PW8 has stated that the samples were sent on 31/8/2004 which fact is also apparent from the FSL report. Admittedly there is an overwriting in date from 27/8/2004 to 31/8/2004 but looking into the testimony of prosecution witnesses coupled with other documents no doubt is left in my mind that the sample was sent on 31/8/2004. At no stage of proceedings even during evidence it was highlighted that the case property and the samples were tampered with in any manner. Ld. counsel during arguments placed reliance on the cases State of Rajasthan vs. Daulat Ram 1080 SCC (Crl.) 683, Mehandi Hassan vs. State 1996 JCC 653, Ghanshyam vs. State 1994 JCC 240, Rahis Ahmed vs. State 1994 JCC 96, Abdul Ghafar vs. The state 1996 JCC 497, Kedarnath Malik vs. state 2001 CrI. L.J. 1307, Dayanand vs. State of Haryan 2005 (2) JCC (narcotics) 186 to contend that since HC Harcharan was not examined so the link witnesses is missing and 14 chances of tampering with the case property cannot be ruled out.
16. It is no doubt true that HC Harcharan was not examined but the entries made in the malkhana register and the testimony of PW9 would show that the sample could not be deposited on 27/8/2004 since by the time he reached there, the lab was closed. Testimony of PW1 and the FSL report show that when the sample was received on 31/8/2004, its seal was intact. In these facts, non examination of HC Harcharan can not be taken as fatal to the case of the prosecution. Further the case laws supra relied by the defence counsel supra are distinguishable on facts. In State of Rajasthan (Supra), the samples changed several hands before reaching to public analysis and none of them was examined. In Mehandi Hassan (Supra) the link witnesses were not examined. In Ghanshyam (Supra) there was mystery as to when and by whom the CFSL form was delivered at the CFSL, in Rahis Ahmad (Supra) the Ct. through whom the sample and CFSL form were sent was not examined. In Abdul Gaffar (Supra) no entry was shown that the sample was sent to CFSL with 15 the CFSL form. In Kedar Nath (Supra) there was no evidence to show that the contraband articles were kept in proper custody before its production. In the present case all the link witnesses have been examined. The FSL report, testimony of PW1 and PW9 and the entries made in the malkhana register would show that the FSL form along with the sample was sent to the lab.
17. Ld counsel pointed out that as per the FSL report the sample and the FSL form contain the seal PS NB 3A DELHI and SHO NBR 1 DELHI but the testimony of prosecution witnesses and the record reveal that the sample was sealed with the seal of 3 APS NB DELHI and 1 SHO NBR DELHI. Ld. counsel further stated that as per the prosecution 5 grams was taken as sample but FSL report shows the weight of the sample as 4.4 grams with polythene. Further there was delay of about 12 days in sending the sample.
18. I have gone through the documents as well as the evidence. The round seal was used for sealing the sample. The 16 description on the seal in the seizure form and that in the FSL report is the same. The error may be in reading. I do not find any addition or omission in the alphabets or the number used in the seal. Ld APP has stated that the samples are sent after getting priority letter. The submissions made by the Ld. prosecutor carries weight as in the cases registered by Delhi Police, the priority letter is obtained from the crime branch before sending sample. As regards variation in weight, the samples at the spot were taken in open condition. It is not the case of the prosecution that physical balance was used at the spot. However in the laboratory the samples were weighed with physical balance so minor difference in weight is quite possible. I get my support in my contention from the case Noor Aga Vs. State of Punjab & Anr 2008 VII AD (SC) 435 and Geeta Lama Tamang vs. State 2006 (3) JCC (Narcotics) 197 where it was held that a slight difference in weight and colour may not be held to be so crucial as to disregard the entire prosecution case. As regards variation in colour, as per the recovery memo, the colour of the case property was light yellow but when it was produced in the court it was found to be of 17 brownish yellow. It is manifest that the case property was produced in the witness box on 4/5/2005 i.e. after about 1 year. The PW1 correctly identified the case property as ExP1 to ExP5. The case property was also produced during the evidence of other witnesses. They had also identified the same. The slight variation in colour is quite possible due to change in atmospheric condition and passage of time. In my view, it depends on individual visualization how he takes the colour. Minor variation in colour does not indicate that there was tampering.
19. As regards joining of public witness, it has been stated by prosecution witnesses that passerby were requested and even at the spot some persons were requested but none agreed so it cannot be said that no effort was made by the investigation agency. Joining public person is a rule of caution not the rule of law. If the testimony of police officials is consistent and cogent, it can become the basis of the conviction of the case. The possibility and availability of a public witness for joining investigation is a fanciful myth like meeting of the 18 sky at the horizon. The near you go, the far it becomes and the ultimate meeting point never reaches. The public witness now a days has become a rare commodity. No one is ready to join police investigation either because of the fear of the accused or because of the inconvenience to be suffered in attending the courts. In Delias Christopher v. Customs 2004(3) JCC 147 it was held "It is true that public witnesses inspire more confidence and enable the court to return findings with added confidence but the law is well settled that a conviction may be based on the testimonies of official witnesses even.
20. In this case PW6 has stated that he on the night of 19/8/2004 had gone to the house of Arvind. He has stated that he had taken permission from the SHO but PW8 states that PW6 did not go there nor took any permission from him. Further there is no record on file to show that he had gone to the house of accused Arvind on 19/8/2004 night. PW7 did not say that on 19/8/2004 PW6 had gone to Etah. The question is that whether this fact would weaken the case of 19 the prosecution. My answer is no as the above act relates to subsequent proceeding after the recovery and arrest of the accused Shakun. The documentary evidence as well as the testimony of other prosecution witnesses which corroborate one and another clearly prove that 1.5 kg. of heroin was recovered from the accused on 19/8/2004 when he was apprehended at 11:45 a.m. at the parking of Kalawati Hospital.
21. Ld. counsel has contended that the accused was lifted from Maharaja Hotel at Paharganj where he had come with accused Arvind. The police party let off Arvind after taking money and planted the case property on him. Ld. counsel stated that DW1 has corroborated this fact and his testimony cannot be brushed aside merely because he is a defence witness. In support of his contention, he relied upon the case State of Haryana vs. Ram Singh 2002 (1) JCC 385.
22. I have gone through the testimony of DW1 and the 20 documents filed by him. DW1 has stated that on 17/8/2004 accused had gone with Arvind Yadav in his Indica car HR 01 Q 2836. On the morning of 20/8/2004 he had talked to Shakun Singh who told him that the parts would be available in the morning and they would come back in the evening. He has stated that on that day in the evening one qualis came in which some official of Narcotics branch were present who told him that they have apprehended accused Arvind with smack, they gave the key of the car at the PS Puluya Etah but his son was arrested after lifting form Maharaja Hotel. Perusal of his testimony shows that he was not present the spot when the accused was arrested. He had made complaint after 7/8 days of incident. He could not say where the accused was on 19/8/2004 at 11:20 a.m. The accused did not examine the SHO PS Pulya whom the key of the Indica was allegedly given nor any memo was produced in evidence by this witness. Perusal of the document ExDW1/H shows that on 20/8/2004 DW1 had gone to the house of Arvind Yadav from where he came to know that on 19/8/2004 the police had taken Arvind Yadav in his Indica car however Arvind Yadav managed to escape. 21 On 20/8/2004 a qualis came at his garage in which his son and the police officials of NR. Branch were present who told him that they had apprehended the accused Arvind with the smack. The question arises when the police had apprehended Shakun on 19/8/2004 why Arvind would phone on 20/8/2004 in the morning that they would come in the evening. The accused could have left the place when the police party had come with the accused Arvind. The story given by PW Ram Pal does not inspire confidence in view of the testimony of other prosecution witnesses which remained consistent and cogent. No doubt the evidence tendered by the defence witness cannot always be termed to be a tainted one but it is equally settled that his evidence is to be considered with caution. The facts of the case coupled with the evidence and the documents lead to the irresistable conclusion that it was the accused who had illegally acquired or procured the heroin for the purposes of trafficking.
23. Further the accused failed to rebut the two statutory presumptions in favour of the prosecution u/s 35 and 54 of the Act. 22 In the case of Madan Lal v. State of HP 2003 (3) JCC 1330 it was held that once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act is given a statutory recognition of this position because of presumption available in law and similar is the position in terms of Section 54 where also presumption is available to be drawn for possession of illicit articles.
24. In this case the accused was found in possession of 1.5 kg. of heroin with its purity 5.7 % . Thus in view of the law laid down in the case of Ansar Ahmad vs. State 2005 (4) RCR (Cr.) 393 the net recovery of diacetylmorphine comes to 87.5 grams which is less than the commercial quantity.
25. For the reasons stated above, I am of the view that prosecution has proved its case against the accused Shakun Singh beyond reasonable doubt I therefore convict him of the offence 23 punishable u/s 21 (b) of NDPS Act Announced in open Court on this 25th day of February, 2010 Sanjiv Jain Spl Judge NDPS : New Delhi Patiala House Courts 24 IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS, NEW DELHI ORDER ON SENTENCE 1 Vide separate judgment accused Shakun Singh has been convicted for the offence punishable u/s 21 (b) NDPS Act. 2 I have heard Ld. counsel Sh. Sameer Chandra for the convict and Ld. APP for the State on the point of sentence.
3 The convict has remained in custody for about two years and two months. He is aged about 30 years, pursuing graduation and except this case he does not have any criminal involvement. He is earning his livelihood by working with his father at his workshop. His father is physically challenged person. The case pertains to the year 2004. 4 On the basis of FSL report, the actual quantity of diacetylmorphine comes to 87.4 grams which is less than the commercial quantity.
25 5 The purpose of punishment to reform and rehabilitate the offender. Even after getting enlarged on bail, he did not resort to such practice and has come out of it reformed. Seeing his age and antecedents I am not inclined to further incarcerate him. 6 Keeping in view his age, antecedents, facts and circumstances of the case I sentence Shakun Singh to undergo Rigorous Imprisonment for a period of two years and two months and to pay fine of Rs.25,000/ in default thereof to undergo Simple Imprisonment for a period of six months. He is given benefit of section 428 CR.P.C. The case property be confiscated to state after the expiry of period of appeal or revision.
Bail bond is cancelled, surety is discharged.
File be consigned to Record Room.
Announced in open Court on this 26th day of February, 2010 Sanjiv Jain Spl Judge NDPS : New Delhi Patiala House Courts 26