Delhi District Court
State vs (1) Mohd. Zakir S/O. Sh. Istkar Hussain on 20 January, 2015
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI.
Unique ID No. 02402R0304332012
Sessions Case No. 17A/13
Date of Institution: 18.10.12
Date of transfer to this court: 11.07.13
Date on which reserved for orders: 06.01.15
Date of delivery of order: 08.01.15
State v/s (1) Mohd. Zakir S/o. Sh. Istkar Hussain
R/o. Village Rampur Ghana, PS. Rajabpur,
District J.P.Nagar, U.P.
FIR No. 221/12
PS. Crime Branch
U/s. 21 NDPS Act
JUDGMENT:
1. The prosecution case is that on 04.09.12 at about 10.30 am a secret informer came to narcotic cell and gave an information to SI Sunil Jain that two persons namely Zakir & Taufiq, who were R/o. J.P.Nagar, U.P used to bring heroin from Bareli and supply it in Delhi and they were likely to come at Akshardham Metro FIR No. 221/12, PS. Crime Branch Page 1 of 39 St. Vs. Mohd. Zakir Station near foot over bridge between 11.30 am to 12.30 pm. SI Sunil Jain produced the secret informer before Inspector Narcotic cell Vivek Pathak at 10.45 am, who satisfied himself about the secret information and informed ACP/ N & CP Beer Singh through telephone. ACP Beer Singh directed raid and necessary legal action. SI Sunil Jain wrote down the information vide DD No. 17 in rojnamcha register at 11 am. A copy of this DD Entry was produced before Inspector Narcotic cell for compliance of section 42 NDPS Act. SI Sunil Jain constituted a raiding party consisting of himself, HC Rohtash, HC Yogesh, HC Om Prakash and HC Mukesh Kumar. The raiding party alongwith secret informer left in Govt. vehicle no. DL1 CM 4228 driven by Ct. Rajender. The IO was carrying with him the IO Bag, field testing kit and electronic weighing machine. A DD entry no.18 was made before departure at 11.15 am. The raiding team went to spot via Pusta road and Shakarpur Chungi Flyover, and reached the spot at about 11.30 am. On the way SI Sunil Jain requested 5 passerby outside the Police Station and 5 at Ramesh Park Bus Stand to join the raiding party however, all of them left without disclosing their names and addresses. At the spot IO requested 4 persons to join raiding team, FIR No. 221/12, PS. Crime Branch Page 2 of 39 St. Vs. Mohd. Zakir but all of them left without disclosing their names and addresses. When they reached the spot, SI Sunil Jain directed the driver to park the vehicle at a distance of 50 meter from the spot and they all took their positions and started waiting. At about 11.40 am one person wearing black pant and white shirt was seen coming from Noida side walking on footpath and was identified by the secret informer from a distance of 1520 meter as Zakir. Secret informer left the spot. The person waited at a distance of 34 meters from the IO for some time and started to move after 34 minutes. He was apprehended at 11.45 am. IO gave the introduction of raiding team. The person on enquiry told his name as Zakir S/o. Istekar Hussain R/o. Village Rampur Ghana, PS. Rajab Pur, District J.P.Nagar, U.P. SI Sunil Jain told the secret information to him and said that his cursory search was to be conducted and that he had legal right to get his search conducted in presence of a Gazetted Officer or Magistrate and he also had a right to search the vehicle before his search. A notice u/s 50 NDPS Act was given to the accused, who stated that he was not educated though literate and could sign only. His refusal was recorded on the notice by the IO and accused signed the same. SI Sunil Jain again requested 810 FIR No. 221/12, PS. Crime Branch Page 3 of 39 St. Vs. Mohd. Zakir public persons to become part of raiding team but they left without disclosing their names and addresses. IO conducted cursory search of accused and from the front right pocket of his wearing pant one black polythene was recovered, which on checking was found containing a transparent polythene having matiala colour powder. The substance was tested on field testing kit and weighed on electronic weighing machine. It was found to be 500 gms of Heroin. Thereafter, two samples of 5 gms each were drawn. Two pullandas Mark A and B were prepared. Remaining Heroin was given mark C. FSL form was filled and pullandas were sealed with seal of 3 APS NB DELHI, which seal was also affixed on the FSL form and seal thereafter was handed over to HC Rohtash. The pullandas were seized; rukka was prepared, proceedings u/s. 55 NDPS Act were also completed. The pullandas, rukka, FSL Form and copy of seizure memo were sent to PS through HC Yogesh. They were produced before Inspector Palvinder Singh Chahal, who conducted his own proceedings and recorded DD No. 29. Pullandas and documents were deposited with MHC(M). Further investigation was handed over to ASI Mahender Singh, who went at the spot; arrested the accused; prepared the site plan; conducted FIR No. 221/12, PS. Crime Branch Page 4 of 39 St. Vs. Mohd. Zakir personal search of accused and recorded his disclosure statement. Both the IOs prepared their reports u/s. 57 NDPS Act and submitted them with Inspector Narcotic Cell. Sample A was sent to FSL vide RC NO. 546/21 and as per FSL report the sample was found to be of 19.9 % of diacetylmorphine and 18.5.% of Caffeine.
2. Accused was charged for being found in possession of 500 gms Heroin and charge u/s. 21 (C) NDPS Act was framed against him. He pleaded not guilty and claimed trial.
3. The prosecution examined 10 witnesses in support of its case.
4. PW1 HC Dilbag Singh was the duty officer. He proved the registration of FIR No. 221/12 based on the rukka sent by SI Sunil Jain through HC Yogesh. The copy of FIR is Ex.PW1/A. He also made an endorsement on the rukka which is Ex.PW1/B. The registration of FIR on the computer was not challenged in cross examination, though it was suggested that the entries were FIR No. 221/12, PS. Crime Branch Page 5 of 39 St. Vs. Mohd. Zakir manipulated and ante dated. PW9 proved the certificate u/s. 65B of Indian Evidence Act proving genuineness and correctness of computer generated copy of FIR. The certificate is Ex.PW9/D.
5. PW10 HC Jag Narain was MHC(M). He deposed that on 04.09.12 he was posted in PS Crime branch as MHC(M). On that day he was called by Inspector Palvinder Singh SHO Crime Branch through duty officer with register no. 19 to his office. SHO handed over three parcels duly sealed with the seal of 3 APS NB DELHI and PSC marked A, B and C, form FSL and carbon copy of seizure memo. SHO had put the FIR number on each pullanda and had signed the same. He made entry at sl. no. 1661. The said entry is Ex.PW9/A. SHO lodged DD No. 29 regarding the proceedings, copy of which is Ex.PW9/B. On the same day in the evening ASI Mahender produced personal search articles of accused, which were deposited in malkhana against entry no. 1661. On 11.09.12 on the directions of SHO, he handed over parcel mark A to HC Harender vide RC No. 546/21 alongwith FSL form for depositing the same at FSL Rohini. Copy of RC is Ex.PW9/C and copy of receipt given by FSL is Ex.PW10/A. FIR No. 221/12, PS. Crime Branch Page 6 of 39 St. Vs. Mohd. Zakir In his crossexamination he admitted that time of proceedings is not mentioned against any entry, however, denied that same was not mentioned to manipulate the entries.
6. PW3 HC Harender has corroborated the evidence of PW10 saying that he received one pullanda and FSL form vide RC No. 546/21 and as per the directions of SHO he deposited the same in FSL Rohini. He had handed over the received copy to MHC(M). His crossexamination was restricted to suggestion that he did not take the case property.
7. PW4 HC Om Prakash is the reader to ACP N & CP. He deposed that on 04.09.12 DD No. 17 was received in the office of ACP N & CP from Inspector Narcotic cell which was entered in diary register vide serial no.2080. The DD was put before ACP Beer Singh who endorsed the same. He identified the handwriting and signature of ACP Beer Singh and proved the DD No.17 which was received in the office. The document is Ex.PW4/A. He further deposed that on 05.09.12 two reports u/s. 57 NDPS Act were received in the office of ACP N & CP vide diary no. 2091 & 2092. FIR No. 221/12, PS. Crime Branch Page 7 of 39 St. Vs. Mohd. Zakir Both were endorsed by ACP Beer Singh. The received copies are Ex. PW4/B and Ex.PW4/C. The original diary register containing entry no. 2091, 2092 were produced. The copy was retained on record and is Ex.PW4/D. Again there is no crossexamination except for suggestions.
8. PW8 Inspector Vivek Pathak deposed that on 04.09.12 at about 10.45 am SI Sunil Jain had come to his office along with secret informer and told him that two persons by the name of Zakir & Taufiq both r/o. J.P.Nagar, U.P.were indulged in sale and supply of heroin in retail and wholesale procuring the same from Bareli and were expected to bring heroin between 11.30 am to 12.30 pm at footover bridge Akshardham Mandir and could be apprehended, if raided. He deposed that after satisfying himself about the information, he conveyed the same to ACP N & CP Sh. Beer Singh on telephone, who directed necessary legal action. The witness further deposed that the information was recorded by SI Sunil Jain vide DD No. 17 (Ex. PW6/A) and he forwarded the same to ACP N & CP. Thereafter, SI Sunil Jain along with raiding team and secret informer left the PS by Govt. vehicle No.DL1CM FIR No. 221/12, PS. Crime Branch Page 8 of 39 St. Vs. Mohd. Zakir 4228 driven by Ct. Rajender vide DD No.18. Copy is Ex. PW6/B. He further deposed that on the same day at about 11.45 am ASI Mahender came to his office along with accused Zakir. He made inquires from accused. On the same day, SI Sunil Jain and ASI Mahender produced their special reports u/s. 57 NDPS Act, which he forwarded to ACP N & CP. Copies of same are Ex. PW 6/C & Ex.PW8/A respectively, having his signatures at point A. In his crossexamination he admitted that the accused was not produced before any Gazetted Officer or Magistrate. The line in crossexamination that he had not told the recording of DD to the ACP office apprars to be a suggestion which was denied in continuation to the suggestion regarding conveying of the information to the ACP office and his directions to take necessary legal action.
9. PW9 Inspector Palvinder Singh deposed that on 04.09.12, at about 4.20 pm HC Yogesh came to his office and handed over three pullandas mark A, B and C, one FSL form and carbon copy of seizure memo to him. All of above had one seal each of 3 APS NB DELHI marked on them. He put his seal of PSC FIR No. 221/12, PS. Crime Branch Page 9 of 39 St. Vs. Mohd. Zakir on each pullanda and FSL form and wrote FIR number after asking from the duty officer on all pullandas, FSL From and copy of seizure memo and also put his signatures on them. MHC(M) HC Jag Narayan was called by him in his office and the case property and documents were handed over to him, who made an entry in register no. 19. He deposed that he made DD No. 29 in this regard. The copy of DD No. 29 is Ex.PW9/B. He also proved his signatures on entry in register no.19 i.e Ex.PW9/A at point X. On 11.09.12 MHC(M) gave sample A along with FSL form to HC Harender vide RC No. 546/21 for sending to FSL, on his direction.
In his crossexamination he said that he could not give any explanation for sending the sample after about one week.
10. PW5 ASI Mahender Singh deposed that on 04.09.12, at around 6.45 pm on receiving of further investigation, he went to the spot by Govt. vehicle driven by HC Rajender and reached there at 7 pm where he met SI Sunil Jain, HC Om Prakash, HC Mukesh, HC Rohtash and accused Zakir. SI Sunil Jain handed over the documents prepared by him and custody of the accused to him. He prepared the site plan Ex. PW5/A at the instance of SI Sunil Jain FIR No. 221/12, PS. Crime Branch Page 10 of 39 St. Vs. Mohd. Zakir and recorded the statement of HC Rohtash. He arrested accused Zakir after brief interrogation vide memo Ex. PW5/B and conducted his personal search vide memo Ex. PW 5/C and recorded his disclosure Ex. PW 5/D. From the personal search of the accused one carbon copy of the notice u/s. 50 NDPS Act and cash Rs. 1040/ were recovered. After completing the investigation they all returned to Crime Branch, Malviya Nagar, where he deposited the personal search articles of the accused with MHC (M). He produced accused before Inspector Vivek Pathak. He prepared the report u/s. 57 NDPS Act and submitted the same before Inspector Vivek Pathak. The office copy of the report is Ex.PW4/C having his signature at point B. He had filed the challan and also the FSL result Ex. PX, received later on.
The witness identified carbon copy of notice u/s. 50 NDPS Act in the name of accused Zakir and said that the same was recovered from the personal search of the accused along with other articles. The copy of notice is Ex. PW 5/P1. His cross examination is restricted to the suggestions on the facts. The witness denied all the suggestions except the one regarding non joining of public witnesses. He admitted that accused was not FIR No. 221/12, PS. Crime Branch Page 11 of 39 St. Vs. Mohd. Zakir produced before SHO Crime Branch (he having produced him before Inspector Narcotic Cell).
11. PW6 SI Sunil Jain, PW7 HC Rohtash and PW2 HC Yogesh are the witnesses of recovery.
12. PW6 SI Sunil Jain has deposed that on 04.09.12 at about 10.30 am one secret informer came to Narcotics Cell and informed him that two persons namely Zakir and Taufiq both R/o. J.P.Nagar, U.P. were involved in the supply of heroin in Delhi after procuring from Bareli. They were likely to come near footover bridge opposite Akshardham Metro Station between 11.30 am to 12.30 pm to supply heroin to someone. He interrogated the informer and thereafter, produced him before Inspector Vivek Pathak at about 10.45 am, who also satisfied himself and thereafter, conveyed the information to ACP N & CP Sh. Beer Singh on telephone, who directed to conduct raid. He recorded DD No.17 (Ex.PW6/A) and submitted true copy of the same to Inspector Vivek Pathak for forwarding to ACP.
PW2 HC Yogesh deposed that on 04.09.12 he was FIR No. 221/12, PS. Crime Branch Page 12 of 39 St. Vs. Mohd. Zakir called by SI Sunil Jain at about 11.15 am, who prepared a raiding party consisting of him, HC Rohtash, HC Om Prakash, HC Mukesh and the IO himself. The fact has been corroborated by PW6 & PW7. Thereafter, PW2 deposed that SI Sunil Jain collected IO bag, field testing kit & electronic weighing scale and the raiding team alongwith secret informer went to the spot in the Govt. vehicle no. DL 1 CM 4228 driven by Ct. Rajender DD No. 18 was recorded in this regard by SI Sunil Jain, which is Ex.PW6/B. He is corroborated by PW6 and PW7 on this aspect and all have said that the team with secret informer left at 11.15 am vide DD No. 18, Ex.PW6/B. The witnesses deposed that on the way to the spot, the IO PW6 stopped after coming out of the PS Shakharpur and requested 5 persons to join the investigation, who all refused to oblige and left without disclosing their names and addresses. In between at Ramesh Park Bus Stand again he requested 5 persons but they did not agree to join the investigation. At the spot also IO had requested 5 public persons but none agreed to join the investigation. SI Sunil Jain corroborated by PW2 & PW7 deposed that the raiding team reached at the spot at 11.30 am, where the driver was asked by him to wait at a distance of 50 FIR No. 221/12, PS. Crime Branch Page 13 of 39 St. Vs. Mohd. Zakir meters. After some time, one person came at the spot, the secret informer pointed towards him identifying him as Zakir. The person waited for 34 minutes and thereafter started to leave and at that time, he was apprehended by the IO with the help of raiding team. The witnesses deposed that the IO disclosed his identity and identity of the raiding team members to the accused. The accused disclosed his name as Zakir S/o. Ishtekar Hussain, who was identified by all the three witnesses in the court. IO told him regarding the secret information received by him and that his search was to be conducted. He also said that he told the accused about his legal rights regarding search that his search was to be conducted and if he wanted his search could be conducted before a Gazetted Officer or a Magistrate. He also said that he had explained the meaning of Gazetted Officer and Magistrate to the accused and had also offered the search of raiding team member and the vehicle to the accused. PW2 deposed that the accused was told his legal rights. Thereafter, IO prepared notice u/s. 50 NDPS Act, carbon copy of which was served upon accused Zakir. The notice is Ex.PW2/A. The accused refused to avail all the offers given by the IO and his refusal, which was recorded by the IO as FIR No. 221/12, PS. Crime Branch Page 14 of 39 St. Vs. Mohd. Zakir the accused was illiterate, has been proved as Ex.PW2/B. The IO has deposed that he had told to the accused the meaning of Gazetted Officer and Magistrate as he told that he was illiterate and after understanding the meaning and reading over the contents of notice to him, he told that he did not want to be searched in presence of Gazetted Officer or Magistrate. He deposed that he had noted down the reply and the same was read over to accused, which he signed at point X ( on Ex.PW2/B).
The witness in his crossexamination denied that there were spaces between the signatures and the point where the content of documents end,(Ex.PW2/B and C) which indicate that the signatures of the accused were obtained on blank papers.
PW2 & 3 were not crossexamined on the aspect of notice at all.
PW6 deposed that after serving the notice upon accused, he again requested 810 public persons who were present at the spot but none joined the investigation and left without disclosing their identity. He deposed that he took the search of the accused and found one black colour polythene from the right pocket of the pant worn by accused. On opening which transparent FIR No. 221/12, PS. Crime Branch Page 15 of 39 St. Vs. Mohd. Zakir polythene tied with rubber band containing matiala colour powder was recovered. The substance recovered was checked on field testing kit and was found to be heroin weighing 500 gms in all. The IO took out two samples of 5 gms each and prepared pullandas mark A & B and put the remaining heroin in pullanda mark C. He deposed that he filled the FSL form and put his seal of 3 APS NB DELHI on all the pullandas and form FSL. Thereafter, he seized the pullandas and form FSL vide memo Ex.PW2/C. He deposed that he prepared the rukka (Ex.PW6/E) and gave the same alongwith the pullandas A, B & C, FSL Form and carbon copy of seizure memo to PW2 HC Yogesh with the direction to hand over the rukka to DO and remaining articles to the SHO concerned.
13. PW2 has corroborated the evidence on recovery aspect and also handing over of pullandas and documents. He also deposed that after the accused refused to get searched in presence of Gazetted Officer or Magistrate, the IO had requested public persons to join investigation but they refused. He corroborated the evidence of IO on the fact of search conducted and matiala colour powder recovered from the search of accused. IO deposed that FIR No. 221/12, PS. Crime Branch Page 16 of 39 St. Vs. Mohd. Zakir PW2 left the spot in the Govt. Vehicle at 3.15 pm.
14. PW7 HC Rohtash has deposed in same terms as PW6 and PW2. He has specifically stated that after giving notice to the accused, IO had requested 810 public persons to join the recovery proceedings but they had refused and had left without disclosing their identity. IO had searched the accused and from the right side pocket of his wearing pant a black colour polythene further containing a transparent polythene was recovered, which was containing matiala colour powder. No question whatsoever was put to the witness on the aspect of recovery. His deposition regarding notice u/s. 50 NDPS Act was also not challenged. He as well as PW6 stated that the IO i.e PW6 had stopped for 23 minutes to explain the facts to public witnesses who were asked to join the investigation. PW7 specifically said that the facts were not explained separately to the public persons. He deposed that the road from PS to spot has heavy traffic but the traffic does not jam. He said that the bus stand was at a distance of ½ km from the spot, while PW6 said that the distance was about 57 meters, however, both of them stated that the residential colony was at a distance of FIR No. 221/12, PS. Crime Branch Page 17 of 39 St. Vs. Mohd. Zakir ½ km.
15. SA was recorded wherein the accused stated that he was innocent and was lifted from the house of his relative at Bhajanpura and that he was falsely implicated in this case. He also deposed that no other case was pending against him.
16. Accused led defence evidence and examined one Nizam as DW1, who claimed to be relative of accused. He deposed that police personnels had come to his house and asked about Zakir. He called Zakir out and they took accused stating that he was being taken for some enquiry. Later on he came to know that he has been implicated in this case.
In his crossexamination he admitted that he did not give any complaint to anyone regarding false implication of accused. He admitted that he had met accused in the JC, however, even after that he did not make any complaint.
17. Ld. Addl. PP argued that secret information was received whereafter the senior officers were informed and information was FIR No. 221/12, PS. Crime Branch Page 18 of 39 St. Vs. Mohd. Zakir also recorded in writing, DD regarding which has been proved without any dispute. The recovery witnesses have proved service of notice u/s. 50 NDPS Act and also the refusal of accused. The recovery and quantity have been proved by corroborative evidence of PW2, 6 & 7. PW2, 5 & 6 have corroborated each other on arrest and search. The case property remained untempered and PW9 Inspector Palvinder Singh has proved the receiving of sealed case property and other documents. The prosecution has proved its case with corroborative evidence on all the parts of investigation.
18. Ld. Counsel for accused argued that the accused is illiterate and could not read the contents of section 50 NDPS Act. He argued that section 50 was not complied with. There is a delay of more than a week in sending the sample to the FSL. The accused was picked from the house of his relative. He further argued that the raiding team had started at 11.15 am and reached the spot at 11.30 am in between they stopped at three places, which could have taken 15 minutes, therefore, they could not have reached the spot in 15 minutes. The evidence of PW SI Sunil Jain and PW7 is contradictory regarding the location of Bus Stop. No FIR No. 221/12, PS. Crime Branch Page 19 of 39 St. Vs. Mohd. Zakir sincere efforts was made to join the public witnesses.
19. Ld. Addl. PP has argued in rebuttal that delay cannot be considered fatal for prosecution case unless the defence is able to point out any tempering with the sample. In this regard he relied upon the judgment of Hon'ble Supreme Court in Ajmer Singh Vs. State of Haryana 2010, (2) HCR 785 and Bilal Ahmed Vs. State 2011 III AD (Crl. ) (DHC) 293.
20. The main defence of accused is that section 50 NDPS Act was not duly complied with. It was argued that section 50 required strict compliance and mere information given to the accused did not serve the purpose.
All the three recovery witnesses have stated that accused was informed that he had a legal right to be searched in presence of a Gazetted Officer or a Magistrate and he was also told that he had a right to search raiding team members and the Govt. vehicle. The IO specifically stated that he had explained to the accused the meaning of Gazetted Officer and Magistrate. This oral evidence is FIR No. 221/12, PS. Crime Branch Page 20 of 39 St. Vs. Mohd. Zakir in corroboration with the documentary evidence Ex. PW5/P1 & Ex.P2/A i.e carbon copy of the notice and original notice u/s. 50 NDPS Act respectively. Ld. Counsel has not been able to point out how notice u/s. 50 is not as per the requirement of section 50. As per notice it was also told to the accused that the Gazetted Officer or Magistrate could be arranged at the spot also and that he could be searched in their presence. He was told that it was his legal right. Ld. Counsel has taken a plea that reply is written in technical terms, which is not the language of the accused and therefore, it cannot be said to have been written as per the version of the accused.
Admittedly, the reply to the notice is not in the handwriting of the accused. It has been written by the IO, who claims that the refusal was as per what was conveyed to him. A document when it is prepared cannot be written in exact terms as the conversation takes place for instance, while arguing Ld. Counsel argued that "11.15 pe nikle 11.30 pe nahi pahuch sakte, teen jagah ruke 15 minute waste ho gaye", however while recording the arguments it will be written in proper language as has been discussed hereinabove. The reply thus conveys the gist of FIR No. 221/12, PS. Crime Branch Page 21 of 39 St. Vs. Mohd. Zakir what the accused said and not his words in verbatim. A suggestion was given to the witness that there was space between signatures and points where the content of document end, which indicates that his signatures were obtained on blank paper. Perusal of record, however, shows that there is no such space in the document. The signatures are as near the end of the contents as possible at both the points. The possibility of later tempering is ruled out since the writing also does not appear to be varying in space or congested or leaving unnecessary space in the entire notice.
The contents of the notice are self explanatory that accused was told that he had a legal right to be searched in presence of Gazetted Officer or Magistrate and that an arrangement in this regard could be made. There is absolutely no contradiction in the evidence of prosecution witnesses regarding the manner of service of notice U/s. 50 NDPS Act or regarding the information conveyed to the accused. There is no crossexamination of the witnesses regarding the contents of the notice or the manner of service thereof not even of the information provided to the accused regarding his legal right. There is as such no strength in the argument that section 50 was not complied with. FIR No. 221/12, PS. Crime Branch Page 22 of 39 St. Vs. Mohd. Zakir
21. Ld. Counsel argued that considering the fact that police vehicle had stopped thrice on way, the distance could not be covered in 15 minutes. PW6 in his crossexamination stated that the distance between the spot and the Narcotics Cell office was about 35 km. The witness also stated that vehicle stopped at the places to enquire from public person for 23 minutes. The stoppage was at 2 places and not three places as argued. Considering the small distance, reaching there in 15 minute despite stopping at two places for 6 minutes was not impossible moreso when the witnesses stated that the traffic on the road was not jammed all the times.
22. It was next argued by Ld. Counsel that accused was picked from his relative's house and not arrested from the spot as shown in the prosecution case. The accused, however, has not been able to prove his plea in as much as there is a contradiction coming out in the place of his suggested arrest in the suggestion given to the witnesses, his statement u/s. 313 Cr.P.C and the address mentioned by the DW1 in his evidence. The accused claimed that he was arrested from Bhajanpura; DW1 did not tell the name of FIR No. 221/12, PS. Crime Branch Page 23 of 39 St. Vs. Mohd. Zakir place from where the accused was arrested, however, his own address mentioned against his name is of Bhagirathi Vihar. It was not clarified if Bhagirathi Vihar is in Bhajanpura or not. Bhagirathi Vihar as per google maps is in Gokul Pur and not Bhajanpura. Despite having met the accused in judicial custody after his arrest, the witness did not choose to inform any Sr. Police officer or court, which creates a doubt regarding his version.
23. Ld. Counsel has argued that there is delay of more than a week in sending the sample to the FSL alleging that the delay being against the NCRB guidelines, should be read against the prosecution case.
To counter this argument Ld. Addl. PP relied upon the judgment of Hon'ble Supreme Court in Ajmer Singh Vs. State of Haryana, 2010 (2) SCR 785. In the said matter the Hon'ble Supreme Court upheld the order of Hon'ble Delhi High Court on the issue of ignoring the delay in sending the sample, the delay being of 15 days, and holding that the statements of witnesses and report of FSL shows that the sample was received in a sealed cover and there was no tempering of the sample. He also argued that in FIR No. 221/12, PS. Crime Branch Page 24 of 39 St. Vs. Mohd. Zakir Ramesh Kumar Rajput @ Khan Vs. State of Nct of Delhi MANU/DE/0786/2008 and in Bilal Ahmed Vs. State 2011 III AD (Crl.) DHC 293, the delay of 13 days and 59 days respectively was ignored.
From the cited judgments the ratio which can be drawn is that to safeguard the possible tempering, the sample should be sent to FSL at earliest preferably in 72 hours, however, if there is a delay there is an onus on the prosecution to show that there was no tempering with the case property and the sample. If the prosecution satisfies that there was no tempering, the delay is to be ignored, however, in the event of a doubt, the benefit has to be given to the accused.
24. Coming to the facts of the case, the accused has not been able to show that during the period of seven days any tempering was done with the sample. PW6 deposed that he prepared the pullandas A, B & C and affixed his seal of 3 APS NB DELHI. He was not crossexamined on the aspect of seal at all. Thereafter, PW2 deposed that he took the sealed sample alongwith other articles/documents having seal of 3 APS NB DELHI and gave FIR No. 221/12, PS. Crime Branch Page 25 of 39 St. Vs. Mohd. Zakir them to SHO PW9. There is absolutely no crossexamination of the witness on the facts deposed by him regarding taking of sealed parcels from the spot till handing over to SHO. PW9 Inspector Palvinder Singh deposed that he received the sample A and other articles having seal of 3 APS NB DELHI in his office at 4.20 pm. He was not questioned on the issue of seal at all nor on the timing mentioned by him. Inspector Palvinder Singh deposed that he called the MHC(M) and gave the sample etc. to him after putting his own seal of PSC, FIR No. and particulars of case on them. He was again not questioned on this aspect in his cross except for the suggestion that he did not affix his seal. PW10 corroborated PW 9 and stated that he got sample Mark A etc. from Inspector Palvinder Singh and they were having seals of 3 APS NB DELHI and PSC. He also proved the relevant entries as also the DD made by SHO regarding the proceedings ( Ex.PW9/B). Apart from the fact that time was not mentioned against the entries no suggestion was given to this witness in his crossexamination. PW3 HC Harender deposed that on 11.09.12 date corroborated by PW9 and PW10 he was handed over the pullanda having seals of 3 APS NB DELHI and PSC vide RC no. 546/21 which he took to the FSL and FIR No. 221/12, PS. Crime Branch Page 26 of 39 St. Vs. Mohd. Zakir deposited. The RC having number 546/21 and the details has been proved by PW9 & 10 as Ex.PW9/C without any challenge. The acknowledgment card has also been tendered in evidence as Ex.PW10/A. FSL report says that sample having one seal of 3 APS NB DELHI and one of PSC was received on 11.09.12. The link from the spot till the arrival of FSL has been proved by the prosecution by aforesaid five witnesses, who have not been cross examined on the aspect of possible tempering at all. The delay therefore, cannot be read against the prosecution.
25. It was argued that there was contradiction in the testimony of PW6 & 7 in as much as PW6 said that the bus stand was at a distance of 57 meter while PW7 said that it was at a distance of ½ km. Both the witnesses have admitted that there is a bus stand near the spot. They have also stated that Akshardham Metro Station was at some distance from the spot though the distance told is different. Since these distances are not measured, the confusion regarding the exact distance when the witnesses have admitted that the places were nearby, has to be ignored. FIR No. 221/12, PS. Crime Branch Page 27 of 39 St. Vs. Mohd. Zakir
26. Ld. Counsel argued that the remnant of testing material were not saved. In every case there will always be something which shall remain undone, however, unless the things which are not done clearly establish the defence of accused or point out towards falsity of prosecution case, they cannot be accepted as grounds for doubting the prosecution case.
It was argued that no prior arrangement was made with the Gazetted Officer, it is a relevant fact that the office of ACP, who is Gazetted Officer was intimated about the secret information. Since it was only an information which could or could not have resulted into recovery and arrest, the prior arrangement having not been made cannot be accepted as a ground for acquittal. As argued by Ld. Addl. PP several informations are received by the police officers, there cannot be a beforehand stock arrangement with Gazetted Officers or Magistrates unless the information is found true and correct.
27. The record reveals that due procedure was followed by the investigating officers. The secret information itself was recorded and communicated to the ACP. The DD entry as well as FIR No. 221/12, PS. Crime Branch Page 28 of 39 St. Vs. Mohd. Zakir copy, which was sent to the ACP and produced before him, have been proved by the corroborative evidence of PW4, 6 & 8. Ld. Counsel argued that section 42 has not been complied with, however, he could not point out any lacuna in the compliance. PW6 deposed that he recorded the DD no.17 and gave a copy thereof to PW8 Inspector Vivek Pathak, who deposed that the copy was in fact prepared and produced before him and was sent by him to the ACP N & CP on same date. PW4 reader of ACP N & CP has proved the received DD entry which was received at the office on 04.09.12 itself vide entry at serial no. 2080 Ex.PW4/A. The prosecution has also proved that after the arrest of accused a report regarding seizure as well as arrest was prepared by both the respective IOs and that the documents were sent to ACP N & CP through Inspector Vivek Pathak. The preparation and sending of DD has not been challenged by the accused in the cross examination of PW6. PW8 was also not questioned regarding forwarding of the DD to ACP office except for the suggestions given The crossexamination of reader was also regarding the time only and the date was not challenged. The documents were received at ACP office within 24 hours thus stands admitted. FIR No. 221/12, PS. Crime Branch Page 29 of 39 St. Vs. Mohd. Zakir
28. The prosecution has proved notice u/s. 50 NDPS Act. The notice is written in Hindi and it is stated that the same was read over to the accused. The objections thereto have been dealt with in detail hereinabove.
29. Three prosecution witnesses with their corroborated evidence have proved that they had gone in the govt. vehicle alongwith driver and secret informer to the spot and had waited for the accused before he arrived and was pointed at by the secret informer. The accused was apprehended when he started to leave. The prosecution has proved through the evidence of three witnesses that a notice u/s.50 NDPS Act was given to the accused who was explained that he had legal right to get searched in presence of Gazetted officer or Magistrate. He was also informed about the secret information which the IO had with him. He also understood the meaning of Gazetted Officer and Magistrate. The fact is also written in the reply to notice which is Ex.PW2/B. The accused had refused to search the raiding team member and the police vehicle as has been deposed by PW2, 6 & 7 and is also FIR No. 221/12, PS. Crime Branch Page 30 of 39 St. Vs. Mohd. Zakir written in the notice Ex.PW5/P1 and Ex.PW2/A. After his refusal, which was also recorded in Hindi as per his version and was signed by him, the cursory search of accused was taken by IO. The witnesses have deposed that from the search of the accused a black polythene further containing transparent polythene containing matiala colour powder was recovered from the right pocket of his wearing pant. The witnesses have deposed that the substance was checked with the help of field testing kit and was found to be Heroin. All the witnesses have corroborated each other on this aspect and the fact was not challenged in crossexamination of PW2, PW6 & PW7 specifically. The witnesses categorically stated that the case property was weighed and total quantity was found to be 500 gms. The prosecution has thus successfully proved that 500 gms of Heroin was recovered from the person of the accused, which Heroin was tested by the field testing kit at the spot itself. Thereafter, the recovery witnesses have deposed about the drawing of the samples and preparation of pullandas. The witnesses have again not been crossexamined on this aspect except for one question put to them that the remnants of tested material was not saved. How the same would have helped the FIR No. 221/12, PS. Crime Branch Page 31 of 39 St. Vs. Mohd. Zakir defence is not explained since charge is framed not on the basis of the field testing but on the basis of FSL result. And if the defence pleads false implication, how difficult it would have been for the IO to have planted the testing material , if he were already planting the case property. The argument of the defence has no merit. The witnesses have proved that two samples were drawn and put in pullandas Mark A & B and seal of 3 APS NB DELHI was put on Mark A, B and the remaining Heroin was put in pullanda mark C. FSL form was filled and seal of 3 APS NB DELHI was put on it also.
Inspector Palvinder Singh has also deposed that pullandas A, B & C, FSL form when produced before him had the seal of 3 APS NB DELHI on them and he had put his seal of PSC on each of the pullandas as well as FSL form. PW10 corroborated the evidence of Inspector Palvinder Singh and stated that he was handed over pullandas and FSL form as also the carbon copy of seizure memo and that the pullandas and form FSL had seals of 3 APS NB DELHI and PSC on them. It is thus proved that the samples and case property sealed by SI Sunil Jain had reached the malkhana on 04.09.12 at 4.20 pm with intact seals. The reaching of FIR No. 221/12, PS. Crime Branch Page 32 of 39 St. Vs. Mohd. Zakir sample to the FSL has been discussed hereinabove while discussing the aspect of delay in sending the sample. It thus stands proved that the seals were intact and were tallied with specimen till it reached FSL and the opinion on the sample given by FSL was that the sample contained 19.9 % of diacetylmorphine and 18.5.% of Caffeine.
30. It was argued that no public person was joined in the investigation. It is settled law that nonjoining of public witnesses itself cannot become a ground for acquittal if the case of prosecution is otherwise not doubtful. I am placing my reliance upon the judgment of Hon'ble Supreme Court, in Ramesh & Anr Vs State of UP AIR 2009 SC 2741, wherein it was held that if the public witnesses do not become available, it is not the fault of the investigating agency.
In Sumit Tomar Vs State of Punjab Criminal Appeal no 16901691 of 2012 decided on 19/10/2012 it was held:
"In a case of this nature, it is better if the prosecution examines atleast one independent witness to corroborate its case. However, in the FIR No. 221/12, PS. Crime Branch Page 33 of 39 St. Vs. Mohd. Zakir absence of any animosity between the accused and the official witnesses, there is nothing wrong in relying on their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also do not find any infirmity in the prosecution case.
In view of the above discussion, we hold that though this is desirable to examine independent witness, , however, in absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with."
In Rohtas versus State of Haryana JT 2013 (8)SC 181, the Hon'ble Supreme Court again held:
" where all the witnesses are from the FIR No. 221/12, PS. Crime Branch Page 34 of 39 St. Vs. Mohd. Zakir police department. Their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency from the victim and the vigilante."
In Gian Chand Vs. State of Haryana Criminal Appeal no 2302 of 2010 dated 23/07/2013 it was held that mere non joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, credit worthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.
In view of the cited judgments and above discussion since the accused has not taken any plea of animosity and has not stated why the police officials would have falsely implicated him, nonjoining of public witnesses does not become a ground for acquittal of the accused since the case of the prosecution is otherwise proved on all material aspects. FIR No. 221/12, PS. Crime Branch Page 35 of 39 St. Vs. Mohd. Zakir
31. There is no reason to disbelieve the prosecution case, which has been proved as per law against accused Zakir. Accused Zakir is held guilty for having committed the offence u/s. 21 (C) of NDPS Act. Let accused Zakir be heard on the point of sentence. Announced in the open court on 08.01.15 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI FIR No. 221/12, PS. Crime Branch Page 36 of 39 St. Vs. Mohd. Zakir IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ ASJ02 (EAST), SPL. JUDGE (NDPS) KARKARDOOMA COURTS, DELHI.
Unique ID No. 02402R0304332012 Sessions Case No. 17A/13 State v/s (1) Mohd. Zakir S/o. Sh. Istkar Hussain R/o. Village Rampur Ghana, PS. Rajabpur, District J.P.Nagar, U.P. FIR No. 221/12 PS. Crime Branch U/s. 21 (C) NDPS Act Pr: Sh. Ajit Kumar Sriwastawa, Ld. Addl. PP for the State.
Convict Md. Zakir produced from JC.
Sh. Sarfaraz Asif, Ld. Counsel for convict.
ORDER ON SENTENCE:
1. Accused Md. Zakir has been convicted by order/judgment of this court dt. 08.01.15.
2. Arguments heard on point of sentence.
FIR No. 221/12, PS. Crime Branch Page 37 of 39 St. Vs. Mohd. Zakir
3. Ld. Counsel for the convict has argued that convict is a family person having responsibility of his family. Ld. Counsel has requested for taking a lenient view on the ground that convict has suffered the ordeal of trial as he is in custody since the day of his arrest. He prays that minimum sentence provided in the law be given to the convict.
4. Ld. APP prays for imposition of severe punishment as such kind of offences are on the rise in the society. He has argued that recovery effected from convict falls within the commercial quantity.
5. Keeping in view the facts and circumstances of the case, since the commercial quantity of heroin has been recovered from the possession of the convict, he cannot be convicted for anything less than the minimum prescribed punishment for the offence. The convict is sentenced to undergo Rigorous Imprisonment for a period of 10 years u/s. 21 (C) of NDPS Act and also directed to pay a fine of Rs.1,00,000/ in default of payment of fine, he shall FIR No. 221/12, PS. Crime Branch Page 38 of 39 St. Vs. Mohd. Zakir undergo SI for one year.
6. The period of detention already undergone by him during investigation, inquiry or trial may be set off against the sentence awarded in this case, in view of section 428 Cr.PC.
7. A copy of this order as well as of judgment be given to convict free of cost. Copy be also sent to Jail Superintendent for information and necessary action.
Announced in the open court on 20.01.15 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI 20.01.15 FIR No. 221/12, PS. Crime Branch Page 39 of 39 St. Vs. Mohd. Zakir