Delhi District Court
State vs 1. Nazneen on 20 May, 2014
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) /
ADDL. SESSIONS JUDGE, (NORTHEAST): KARKARDOOMA COURTS,
DELHI
SC 08/2011
FIR 20/2011
PS Crime Branch
Under Section 20 (b) (ii) (C) NDPS Act
ID 02402R0112032011
State Versus 1. Nazneen
D/o Sh. Chand Qureshi,
2. Rashida
W/o Sh. Chand Qureshi,
Both R/o H. No. 11,
Rajeev Gandhi Chaal,
Behind Bahender Police Chowki
Mumbai.
Date of Institution 08.04.2011
Date of hearing final arguments 29.04.2014
Date of judgment 20.05.2014
J U D G M E N T
1. The prosecution' case, as stated in the chargesheet is as under:
(a) On 31.01.2011 at about 6.35 p.m., PW10 SI Satyawan received a secret information from a secret informer at Narcotics Cell, Shakarpur, Delhi that one lady namely Rashida resident of Mumbai and her daughter Nazneen were supplying 'charas' from Delhi to Mumbai.
FIR 20/2011, PS Crime Branch Page1/56
(b) The said secret informer informed that the said ladies alongwith considerable quantity of 'charas' would be proceeding in some conveyance from Bus Stand in front of Nand Nagri, Bus Depot towards Mori Gate Side and they would go Mumbai via Udaipur by road. He informed that at about 7.30 p.m.8.30 p.m., the said ladies with bags containing 'charas' would come near Bus Stand, Nand Nagri and if raided, they could be apprehended with 'charas'.
(c) On being satisfied with the information, at about 6.50 p.m. PW10 SI Satyawan produced the secret informer before PW6 Insp. Vivek Pathak and apprised him about the secret information. PW6 Insp. Vivek Pathak also made requisite enquiry from the secret informer and intimated ACP/N & CP Sh. Bir Singh Yadav about the said secret information through telephone who issued direction to take appropriate action and thereafter, at about 7.05 p.m. PW10 SI Satyawan reduced the secret information in writing vide DD No. 25 Ex.PW4/A and submitted a copy thereof to PW6 Insp. Vivek Pathak.
(d) On the instruction of PW6 Insp. Vivek Pathak, PW10 SI Satyawan constituted a raiding team comprising PW2 W/HC Rama, PW8 HC Rajender Singh, HC Ramesh and Ct. Sohan Pal and briefed them about the secret information.
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(e) At about 7.15 p.m., PW10 SI Satyawan alongwith the raiding team and secret informer, and IO bag, field testing kit and electronic weighing machine left the Office of Narcotics Cell, Shakarpur, Delhi via Government Vehicle DL 1CJ 4367 which was being driven by Ct. Rajender vide departure entry DD No. 26 Ex.PW10/A.
(f) At about 7.50 p.m., PW10 SI Satyawan alongwith the raiding team and the secret informer reached at Bus Stand near Nand Nagri Depot. On the way, PW10 SI Satyawan requested 5 passersby at Geeta Colony cremation ground and Shastri Park, traffic light respectively to join the raiding team after disclosing his identity and the secret information but the said persons proceeded on their way without disclosing their names and addresses after expressing genuine excuses. At about 7.55 p.m., PW10 SI Satyawan positioned the raiding team near Nand Nagri Bus Depot and started waiting for the said ladies.
(g) At about 8.00 p.m., two ladies were seen coming from the side of Gagan Cinema, one of them was wearing a brown colour shawl and another one, green colour shawl. Secret informer identified the lady wearing brown colour shawl as Rashida and the other lady wearing green colour shawl as Nazneen and thereafter, secret informer left the spot.
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(h) When the said ladies reached at Bus Stand near Nand Nagri Bus Depot, PW10 SI Satyawan and other members of the raiding team apprehended them. On enquiry, the name of the lady wearing brown colour shawl revealed as Rashida and the lady wearing green colour shawl as Nazneen. PW10 SI Satyawan introduced himself and other members of the raiding team and informed them that he had secret information that they were carrying 'charas' intending to supply in Mumbai. PW10 SI Satyawan explained them that they had legal rights to be searched in the presence of a Gazetted Officer or a Magistrate and offered them to take search of the members of the raiding team and the Government vehicle. They were explained the meaning of a Gazetted Officer or Magistrate. In this regard, PW10 SI Satyawan served a notice U/s 50 of the NDPS Act on accused Rashida and another notice U/s 50 of the NDPS Act on Nazneen. Original notice U/s 50 of the NDPS Act served on accused Rashida is Ex.PW2/A and the original notice U/s 50 of the NDPS Act served on accused Nazneen is Ex.PW2/B. Both the accused stated that they were illiterate and therefore, PW10 SI Satyawan read over the contents of the said notices to both of them but both the accused refused to be searched in the presence of a Gazetted Officer or a Magistrate. FIR 20/2011, PS Crime Branch Page4/56
(i) PW10 SI Satyawan recorded the refusal of accused Rashida and Nazneen which is Ex.PW2/C and Ex.PW2/D. Accused Rashida and Nazneen signed the respective notice U/s 50 of the NDPS Act and their refusals. Accused Rashida signed in Urdu and accused Nazneen signed in Hindi.
(j) Before proceeding further, PW10 SI Satyawan requested 1012 public persons present at the spot to join the recovery proceedings but they disclosed various excuses and left the spot without disclosing their names and addresses. Thereafter, PW2 W/HC Rama conducted search of accused Nazneen who was carrying a red & black colour bag on her right shoulder. PW2 W/HC Rama had taken the said bag from her and handed it over to PW10 SI Satyawan. PW10 SI Satyawan opened the main zip of the said bag and found one black colour burka and yellow colour salwarsuit therein and two transparent polythene bags tied with tag were kept thereunder. He opened the said polythene bags after removing the tags and they found containing black colour solid round objects. He taken out the said material therefrom and tested them with the field testing kit and it found to be "charas'. PW10 SI Satyawan marked the said polythene bags containing "charas' as Mark A & B. FIR 20/2011, PS Crime Branch Page5/56
(k) PW10 SI Satyawan weighed the said polythene bags containing "charas'. Each polythene bag containing "charas' weighed 3 kilogram. He had taken out two samples of 50 gram 'charas' from each of the said polythene bag and converted them into cloth parcels marked as Mark A1, A2 and B1, B2 respectively and the remaining 'charas' in the polythene bags Mark A & B respectively was tied with a tag and kept in the said red & black colour bag alongwith the said burka and salwarsuit and converted into a parcel marked as Mark C. Form FSL was filled up there and PW10 SI Satyawan affixed his seal having impression "7APS NB DELHI" on the said 5 parcels and FSL Form, and seal after use was handed over to PW2 W/HC Rama. All the said 5 parcels and FSL Form were seized vide seizure memo Ex.PW2/E.
(l) PW2 W/HC Rama conducted search of accused Rashida and taken blue & black colour bag with the accused was carried on her right shoulder and handed it over to PW10 SI Satyawan. PW10 SI Satyawan opened main zip of the said bag and it found containing two ladies suit and seven transparent polythene packets containing black colour substance thereunder. PW10 SI Satyawan opened the tag of all the said seven packets and taken out a portion therefrom for testing. FIR 20/2011, PS Crime Branch Page6/56
(m) On being tested with field testing kit, the said material was found to be 'charas'. All the said seven polythene packets were marked as Mark D, E, F, G, H, I and J and weighed on an electronic weighing scale. Polythene packet Mark D found containing 3 kgm. 'charas' whereas Mark E, F, G, H, I and J found containing 3 kgm., 3 kgm, 2 kgm, 2 kgm, 2 kgm, and 1 kgm. respectively and as such, 16 kgm. 'charas' was recovered from the said blue & black bag. PW10 SI Satyawan taken out two samples of 50 grams 'charas' from each polythene packet and marked them as Mark D1 & D2, E1 & E2, F1 & F2, G1 & G2, H1 & H2, I1 & I2 and J1 & J2. Polythene packets marked as D, E, F, G, H, I and J were tied with tag and kept alongwith the ladies suit in the said blue & black bag which was marked as Mark K. All the parcels, as stated above were converted into cloth parcels and duly sealed with the seal having impression '7APS NB DELHI' after receiving seal from PW2 W/HC Rama and FSL Form was filled and duly sealed. Thereafter, PW10 SI Satyawan seized the said parcels and sealed FSL Form vide seizure memo Ex.PW2/F.
(n) PW10 SI Satyawan prepared ruqqa Ex.PW10/B and handed it over to PW8 HC Rajender Singh alongwith all the sealed parcels, FSL Forms and carbon copies of seizure memos.
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(o) PW10 SI Satyawan directed PW8 HC Rajender to hand over ruqqa Ex.PW10/B to Duty Officer, PS Crime Branch, Nehru Place, New Delhi and further, to hand over the said sealed cloth parcels, sealed FSL Forms and seizure memos to PW7 Insp. Kuldeep Singh, SHO, PS Crime Branch, Nehru Place, New Delhi.
(p) On 01.02.2011 at 01.00 a.m., PW8 HC Rajender proceeded alongwith ruqqa and the said articles for PS Crime Branch, Nehru Place, New Delhi in Government vehicle bearing registration No. DL 1CJ 4367. At about 2.00 a.m., PW8 HC Rajender handed over ruqqa Ex.PW10/B to PW5 HC Kewla Nand, Duty Officer at PS Crime Branch, Nehru Place, New Delhi who recorded the case FIR Ex.PW5/A, kayami vide DD No. 26 Ex.PW5/B and Bandi Ex.PW5/C, and investigation of the case was assigned to PW9 ASI Rajveer Singh.
(q) At about 2.05 a.m., PW8 HC Rajender handed over the said 20 sealed cloth parcels, two sealed FSL Forms and two carbon copies of seizure memos to PW7 Insp. Kuldeep Singh. PW7 Insp. Kuldeep Singh affixed his seal having impression 'KSY' on all the said sealed cloth parcels and sealed FSL Forms. He enquired FIR number of the case from the Duty Officer and written it on all the said sealed cloth parcels and sealed FSL Forms.
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(r) Thereafter, PW7 Insp. Kuldeep Singh called PW3 HC Jag Narain (MHCM) (inadvertently mentioned as PW2) alongwith Register No. 19 to his office and handed him over all the said 20 sealed cloth parcels, FSL Forms and carbon copies of seizure memos. PW3 HC Jag Narain, MHC(M) made relevant entries in Register No. 19 regarding the deposit of the aforesaid articles vide Ex.PW2/A and Ex.PW2/B. At 3.15 a.m., PW7 Insp. Kuldeep Singh recorded DD entry in that regard vide DD No. 27 dated 01.02.2011 Ex.PW7/A.
(s) On 01.02.2011 at about 2.45 a.m., PW9 ASI Rajveer Singh proceeded towards the spot in Government vehicle No. DL 1CJ 4367 vide departure entry DD No. 2 Ex.PW9/A. At 10.15 a.m., he reached at the spot there PW10 SI Satyawan and other members of the raiding team and both the accused were present. PW10 SI Satyawan handed him over notices U/s 50 NDPS Act, copies of seizure memos and a copy of ruqqa as well as custody of both the accused. He prepared site plan of the place of recovery of contraband at the instance of PW10 SI Satyawan which is Ex.PW9/B. He interrogated accused Nazneen and Rashida and thereafter, arrested them vide arrest memo Ex.PW2/G and Ex.PW2/H respectively and under his instruction, PW2 W/HC Rama conducted personal search of both the accused. FIR 20/2011, PS Crime Branch Page9/56
(t) PW9 ASI Rajveer Singh prepared personal search memo in respect of accused Nazneen and Rashida which are Ex.PW2/J and Ex.PW2/K respectively. He recorded disclosure statement of accused Nazneen and Rashida which are Ex.PW2/L and Ex.PW2/M respectively. At about 6.35 a.m., PW9 ASI Rajveer Singh alongwith accused persons and members of the raiding team returned to PS Crime Branch, Nehru Place, New Delhi.
(u) At about 7.30 a.m., PW9 ASI Rajveer Singh reached at PS Crime Branch, Nehru Place, New Delhi where he obtained a copy of FIR and original ruqqa from PW5 HC Kewla Nand and deposited the articles obtained from personal search of accused persons in the Malkhana with PW3 HC Jag Narain, MHC(M). He recorded statement of PW7 Insp. Kuldeep Singh and PW3 HC Jag Narain, MHC(M). He produced both the accused before Insp. Kuldeep Singh and thereafter, at about 8.20 a.m., he proceeded to Narcotics Cell, Shakarpur, Delhi.
(v) At about 9.00 a.m., PW9 ASI Rajveer Singh reached at Narcotics Cell, Shakarpur, Delhi where he produced both the accused before PW6 Insp. Vivek Pathak. He recorded arrival entry vide DD No. 8 Ex.PW9/C and recorded statement of the witnesses. FIR 20/2011, PS Crime Branch Page10/56 (w) On 01.02.2011, PW9 ASI Rajveer Singh prepared special report U/s 57 NDPS Act regarding arrest of accused persons vide Ex.PW4/C and PW10 SI Satyawan recorded special report U/s 57 NDPS Act regarding seizure memo of contraband vide Ex.PW4/D and submitted the said reports to PW6 Insp. Vivek Pathak who forwarded the said reports to ACP, Narcotics Cell, Shakarpur, Delhi.
(x) During investigation, nothing could be ascertained about Sameer and Arif who had supplied the 'charas' to both the accused. (y) On completion of the investigation, chargesheet U/s 20/29 NDPS Act was filed against both the accused persons. (z) On 27.05.2011, FSL report was filed before the Court.
2. On 27.05.2011, accused Nazneen and Rashida were charged separately U/s 20 (b) (ii) (C) of the NDPS Act to which they pleaded not guilty and claimed trial.
3. The prosecution examined 10 witnesses in support of its case as under:
(i) PW1 HC Dharmender had taken 9 sample parcels marked as Mark A1, B1, D1, E1, F1, G1, H1, I1 and J1 alongwith two FSL Forms to FSL, Rohini on 08.02.2011 vide RC No. 60/21 Ex.PW1/A. Acknowledgment receipt issued by FSL is Ex.PW1/B. FIR 20/2011, PS Crime Branch Page11/56
(ii) PW2 W/HC Rama was a member of raiding team. She has corroborated PW10 SI Satyawan on material aspects like receipt of secret information, apprehension of accused Nazneen and Rashida at Bus Stand near Nand Nagri, Bus Depot, place of recovery of contraband, service of notices U/s 50 NDPS Act upon both the accused as well as recovery of 6 kgm. 'charas' from accused Nazneen and 16 kgm. 'charas' from accused Rashida. She has conducted the personal search of both the accused persons. Seal after use was handed over to her. She has deposed about preparation of samples, affixation of seals on the parcels and preparation of seizure memos. She has deposed about arrest of accused Nazneen and Rashida and she conducted their personal search. She has identified 'charas' recovered from accused Nazneen and Rashida before the Court.
(iii) PW3 HC Jag Narain (wrongly mentioned as PW2) was MHC(M) at PS Crime Branch, Nehru Place, New Delhi. On 01.02.2011, he received 20 sealed cloth parcels and two FSL Forms with the seal having impression '7APS NB DELHI' and 'KSY' alongwith two carbon copies of seizure memos and he made entries in that regard in Register No. 19 which are Ex.PW3/A and Ex.PW3/B (wrongly mentioned as Ex.PW2/A and Ex.PW2/B).
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(iv) PW3 HC Jag Narain, MHC(M) stated that on 08.02.2011, he sent 9 sample parcels alongwith two FSL Forms through PW1 HC Dharmender to FSL, Rohini vide RC No. 60/21 Ex.PW1/A and he made entry in this regard in Register No. 19 Ex.PW3/C (wrongly mentioned as Ex.PW2/C). He stated that on 27.05.2011, he received 9 parcels duly sealed with the seal of 'SSK FSL', through ASI Rajveer Singh and he made entry in this regard in Register No. 19 Ex.PW3/D (wrongly mentioned as Ex.PW2/D). He stated that on 01.02.2011, PW9 ASI Rajveer Singh deposited the articles of personal search of accused Nazneen and Rashida and he made entries in Register No. 19 which are Ex.PW3/G and Ex.PW3/H (wrongly mentioned as Ex.PW2/G and Ex.PW2/H). He stated that till the case property remained in his possession, no one tampered with it in any manner.
(v) PW4 HC Om Prakash was a reader to ACP, Narcotics Cell, Shakarpur, Delhi. He stated that on 01.02.2011, DD No. 25 dated 31.01.2011 Ex.PW4/A was received in his office and produced before ACP Bir Singh who endorsed it at point A. He brought the diary register containing relevant entry at serial No. 169 regarding receipt of secret information vide DD No. 25 and the said page containing entry at serial No. 169 is Ex.PW4/B. FIR 20/2011, PS Crime Branch Page13/56
(vi) PW4 HC Om Prakash stated that on 01.02.2011, special reports U/s 57 NDPS Act pertaining to seizure of 'charas' and arrest of accused persons were received in the office of ACP vide diary No. 170 and 171. He stated that both the reports were produced before ACP Bir Singh who endorsed both the reports. Reports U/s 57 NDPS Act submitted by PW10 SI Satyawan and PW9 ASI Rajveer Singh are Ex.PW4/C and Ex.PW4/D having signatures of ACP Bir Singh at point A and of Addl. DCP Crime Sanjay Bhatia at point B.
(vii) PW5 HC Kewla Nand was Duty Officer at PS Crime Branch, Nehru Place, New Delhi. On 01.02.2011 at about 2.00 a.m., he received a ruqqa from PW10 SI Satyawan through PW1 HC Rajender and recorded case FIR Ex.PW5/A and recorded Kayami vide DD No. 26 Ex.PW5/B and Bandi vide Ex.PW5/C. In his cross examination, he stated that it took about one and half hour in recording the case FIR.
(viii) PW6 Insp. Vivek Pathak was posted as Inspector at Narcotics Cell, Shakarpur, Delhi. He stated that on 31.01.2011 at about 6.50 p.m., PW10 SI Satyawan alongwith a secret informer reached his office and apprised him about secret information. He forwarded DD No. 25 Ex.PW4/A to ACP, Narcotics Cell, Delhi and directed PW10 SI Satyawan to constitute a raiding team and take further action. FIR 20/2011, PS Crime Branch Page14/56
(ix) PW6 Insp. Vivek Pathak further stated that on 01.02.2011 at about 9.00 a.m., PW9 ASI Rajveer Singh produced accused Rashida and Nazneen before him and he made requisite enquiry from them regarding their arrest. He forwarded special reports U/s 57 NDPS Act Ex.PW4/C and Ex.PW4/D to ACP, Narcotics Cell, Delhi.
(x) PW7 Insp. Kuldeep Singh was posted at SHO, PS Crime Branch, Nehru Place, New Delhi. He stated that on 01.02.2011 at about 2.05 a.m., PW8 HC Rajender Singh produced 20 sealed cloth parcels and two sealed FSL Forms having seal impression '7APS NB DELHI' and two carbon copies of seizure memos. He stated that he affixed his seal having impression 'KSY' on all the cloth parcels and FSL Forms and mentioned FIR number thereupon and thereafter, handed over the said articles to PW3 HC Jag Narain, MHC(M). He stated that he recorded DD No.27 Ex.PW7/A at 3.15 a.m. in that regard. He stated that on 08.02.2011, sample parcels A1, B1, D1, E1, F1, G1, H1, I1 and J1 were sent to FSL, Rohini through PW1 HC Dharmender under his instruction.
(xi) PW8 HC Rajender Singh was a member of the raiding team. He has also corroborated the testimony of PW10 SI Satyawan on material aspects and identified the recovered contraband. FIR 20/2011, PS Crime Branch Page15/56
(xii) PW9 ASI Rajveer Singh was the Investigating Officer of this case. He was posted as Assistant SubInspector at PS Narcotics Cell, Shakarpur, Delhi. According to him, on 01.02.2011 at about 2.45 a.m., he departed from Narcotics Cell, Shakarpur, Delhi vide DD No. 2 Ex.PW9/A for further investigation of the case under the instruction of PW6 Insp. Vivek Pathak in Government vehicle No. DL 1CJ 4367. He stated that at 3.15 a.m., he reached at the spot i.e. Nand Nagri Bus Stand, Wazirabad Road where PW10 SI Satyawan, HC Ramesh, Ct. Sohan Pal and PW2 W/HC Rama and both the accused Nazneen and Rashida were present. He stated that he prepared site plan Ex.PW9/B at the instance of PW10 SI Satyawan and received original notices U/s 50 NDPS Act, copies of seizure memos and ruqqa from him. He stated that he interrogated accused Nazneen and Rashida and thereafter, arrested them vide arrest memo Ex.PW2/G and PW2/H respectively and under his instruction, PW2 W/HC Rama conducted personal search of accused Nazneen and Rashida and thereafter, he prepared personal search memos Ex.PW2/J and Ex.PW2/K respectively. He stated that in the personal search of accused Nazneen and Rashida, carbon copy of notices U/s 50 NDPS Act besides other articles were recovered and he recorded their disclosure statements. FIR 20/2011, PS Crime Branch Page16/56
(xiii) PW9 ASI Rajveer Singh further stated that at about 6.35 p.m., he left the spot for PS Crime Branch, Nehru Place, New Delhi in the Government vehicle and at 7.30 p.m., he reached at PS Crime Branch, Nehru Place, New Delhi were he deposited articles of personal search of accused persons with PW3 HC Jag Narain, MHC(M) and further, at about 8.20 a.m., he left the said police station. He further stated that at about 9.00 a.m., he alongwith PW8 HC Rajender Singh reached at Narcotics Cell, Shakarpur, Delhi where he recorded DD No. 8 Ex.PW9/C regarding his arrival and produced both the accused before PW6 Insp. Vivek Pathak. On the same day, he prepared special report U/s 57 NDPS Act Ex.PW9/E and submitted it to PW6 Insp. Vivek Pathak who forwarded it to senior officers.
(xiv) In his cross examination, PW9 ASI Rajveer Singh stated that the spot was situated in a congested area and there were residential houses and shops near the spot. He stated that no public person was called from the residential area or shops. He stated that all the shops and houses were closed at that time. He stated that no police officials from local police station or PCR passed through the spot.
(xv) PW10 SI Satyawan was the Incharge of raiding team. We will discuss his testimony in detail hereinafter at relevant stage. FIR 20/2011, PS Crime Branch Page17/56
4. Accused Nazneen and Rashida were examined U/s 313 Cr.P.C. All the incriminating evidence appearing against them in the prosecution evidence were put. Accused Nazneen as well as Rashida pleaded innocence and claimed false implication. They stated that all the writing work was done while sitting in the police station and their signatures were obtained on blank papers, some written documents and some printed performas. According to them, police officials lifted them from in front of Old Delhi Railway Station at about 5.00 p.m. and taken to their office. They stated that police officials had taken their mobile phones, wrist watches and gold jewellery and misappropriated the said articles. They stated that no 'charas' was recovered from their possession.
5. I have heard arguments of Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. S.K. Ahluwalia, Advocate for accused Nazneen and Rashida and they have taken me through entire evidence on record.
6. Ld. Addl. PP for the State submitted that the prosecution has been able to prove the charge beyond reasonable doubt. He submitted that PW10 SI Satyawan received the secret information and forwarded the information to the senior officers after taking it down in writing. He submitted that PW10 SI Satyawan constituted the raiding team and FIR 20/2011, PS Crime Branch Page18/56 apprehended accused Nazneen and Rashida with 'charas'. He submitted that the recovered 'charas' was properly weighed and sealed in cloth parcels. He submitted that FSL Forms and seizure memo alongwith the recovered 'charas' in cloth parcels were taken by PW8 HC Rajender Singh to PS Crime Branch, Nehru Place, New Delhi where PW7 Insp. Kuldeep Singh also affixed his seal on the cloth parcels and FSL Forms and deposited the case property with MHC(M). He submitted that notices U/s 50 NDPS Act was duly served upon accused Nazneen and Rashida after explaining them their legal rights to be searched in the presence of a Gazetted Officer or a Magistrate. He submitted that FSL report Ex.PW9/E shows that the sample parcels were received by FSL in intact condition and seal on the FSL Form tallied with seal impression on the sample parcels. He submitted that the prosecution has been able to prove the entire chain from receipt of the information till the examination of the recovered 'charas' by FSL, Rohini. He submitted that the prosecution has been able to prove recovery of 'charas' from accused Nazneen as well as Rashida. He submitted that PW10 SI Satyawan made several attempts to join public witnesses to search and seizure proceedings but none of them agreed and therefore, case of the prosecution cannot be doubted. FIR 20/2011, PS Crime Branch Page19/56
7. Ld. Addl. PP for the State further argued that there is no contradiction in the testimony of prosecution witnesses. He has taken the Court through the depositions of the prosecution witnesses and submitted that there is no infirmity or material contradiction in their depositions. He submitted that Section 50 NDSP Act does not apply as the recovery has been effected from the bags carried by accused Nazneen and Rashida. He argued that accused Nazneen and Rashida were carrying 'charas' to the extent of 6 kgm. and 16 kgm. respectively and therefore, they are liable to be convicted for committing offence U/s 20 (b) (ii) (C) of the NDPS Act.
8. Sh. S.K. Ahluwalia, Advocate for accused Nazneen and Rashida submitted that the prosecution has failed to prove its case. He submitted that there are several legal lacunae in the case of the prosecution. He submitted that weight of sample parcels examined by FSL is different from the weight of the sample parcels allegedly taken by PW10 SI Satyawan. He submitted that none of the sample parcel examined by FSL weighed 50 grams. He stated there is no explanation for variation in the weight of the sample parcels. He submitted that senior officers who received report U/s 57 of the NDPS Act has not been examined to prove the said reports.
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9. Ld. defence counsel submitted that in the absence of examination of ACP Bir Singh, the prosecution has not been able to prove that he actually received the report U/s 42 (1) and Section 57 of the NDPS Act. He submitted that mere production of the register containing an entry regarding receipt of the said reports in the office of ACP, Narcotics Cell, Shakarpur, Delhi is not a compliance of Section 42 (1) and Section 57 of the NDPS Act. He submitted that report U/s 57 of the NDPS Act was not sent within 72 hours after seizure of contraband and arrest of accused persons to senior officers and therefore, case of the prosecution is shrouded in suspicion. He submitted that no public witness was associated in recovery and seizure proceedings despite availability and therefore, it has rendered of the case of the prosecution is doubtful.
10. Ld. defence counsel further submitted that there are material contradiction regarding the time of recording of FIR and arrival of PW9 ASI Rajveer Singh at the spot. He submitted that PW2 W/HC Rama stated that IO ASI Rajveer Singh reached at 3.15 a.m. whereas PW5 HC Kewla Nand stated that he had taken one and half hour in recording FIR and that he had received ruqqa at about 2.00 a.m. and therefore, it was not possible for IO to reach at spot at 3.15 a.m. FIR 20/2011, PS Crime Branch Page21/56
11. Ld. defence counsel further submitted that it is quite unusual that no police official or PCR Van passed through the spot despite the fact that the raiding team remained there for 1011 hours. He submitted that no police official from local police station was involved in the search, seizure and arrest of the accused persons. He submitted that no Gazetted Officer or public witness was associated by the raiding team to prove authenticity of seizure proceedings.
12. Ld. defence counsel further submitted that Section 50 of the NDPS Act has not been complied with. He submitted that such stereo type compliance cannot withstand scrutiny of law. He submitted that both the accused persons are illiterate. He submitted that accused Rashida understands Urdu language only. He submitted that accused Nazneen could sign in Hindi but otherwise, she is not conversant with Hindi language. He submitted that notice U/s 50 of the NDPS Act was prepared in Hindi which is not the language of the accused persons and therefore, there is no notice U/s 50 of the NDPS Act was served upon accused persons in law. He submitted that reading of notices U/s 50 of the NDPS Act Ex.PW2/A and Ex.PW2/B clearly shows that the refusal of the accused persons is verbatim same. He submitted that no two persons can state verbatim similar words.
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13. Ld. defence counsel further submitted that the refusal recorded as Ex.PW2/C and Ex.PW2/D show that technical words were used in the recording of the refusal which are not used by a common man and therefore, it is evident that the refusal was recorded by the police as per their convenience. He submitted that such technical word cannot be spoken by such illiterate persons. He submitted that the notice U/s 50 of the NDPS Act was not served upon the accused persons in accordance with law.
14. Ld. defence counsel further submitted that PW2 W/HC Rama has stated that everything written on the sample parcels on the date of production before the Court was written at the spot. He submitted that FIR number and particulars of the case were written before registration of the FIR and it can be logically inferred that the accused persons have been framed in this case and the entire proceedings were conducted in police station. He submitted that accused persons were going to Jodhpur and Seemapuri is not a station falling on that route and therefore, the defence that accused persons picked up from Old Delhi Railway Station is highly probable. He submitted that there are material contradiction in the depositions of witnesses and the police misappropriated amount and jewellery seized from accused persons. FIR 20/2011, PS Crime Branch Page23/56
15. Ld. defence counsel further submitted that the prosecution has neither placed the FSL Form on the Court file nor summoned the concerned file from FSL containing FSL Form and in that eventuality, the Court has not the opportunity to compare the seal affixed on the sample parcels with the seal appearing on the FSL Form. He submitted that no FSL Form was filled or sent to FSL, Rohini. He submitted that there is mentioned of forwarding letter and not FSL form in the FSL report. He submitted that relevant register regarding issuance of electronic weighing machine to PW10 SI Satyawan not produced. He submitted that there is no such machine available in the police station to measure 22 kgm. of 'charas'. He submitted that the police has fabricated the record by creating fictitious entries in order to false implicate the accused persons.
16. Ld. defence counsel finally submitted that seal was not handed over to an independent witness and it renders the case of the prosecution doubtful as chances of tinkering with the sample parcels cannot be ruled out. He submitted that sample parcels were not sent to FSL within 72 hours of seizure. He submitted that Ct. Sohan Pal who had prepared ruqqa not examined by the prosecution. He submitted that PW2 W/HC Rama was not present at the spot.
FIR 20/2011, PS Crime Branch Page24/56
17. I have carefully examined the evidence on record in the light of arguments submitted by Ld. Addl. PP for the State and Sh. S.K. Ahluwalia, Advocate for accused Nazneen and Rashida. I have also carefully considered the case law referred by Ld. defence counsel.
18. PW10 SI Satyawan was the Incharge of the raiding team. He had received secret information regarding the fact that accused persons were supplying 'charas' from Delhi to Mumbai and they would come at 7.30 p.m.8.30 p.m. at Bus Stand near Nand Nagri Bus Depot. He had recorded the secret information vide DD No. 25 Ex.PW4/A and constituted the raiding team comprising PW2 W/HC Rama, PW8 HC Rajender Singh, HC Ramesh and Ct. Sohan Pal. It would be appropriate to have a glance of his depositions in detail.
19. PW10 SI Satyawan stated that on 31.01.2011, he was posted as SubInspector at Narcotics Cell, Shakarpur. He stated that on that day, at about 6.35 p.m., one secret informer met him in his office and informed him that accused Rashida, resident of Mumbai and her daughter Nazneen, who were supplying 'charas' in Mumbai after procuring it from Delhi, would come at Nand Nagri Bus Stand, near Nand Nagri Bus Depot between 7.30 p.m. to 8.30 p.m. He stated that he made enquiries from the secret informer.
FIR 20/2011, PS Crime Branch Page25/56
20. PW10 SI Satyawan further stated that after satisfying himself, he produced the secret informer before PW6 Insp. Vivek Pathak and briefed him regarding the secret information. He stated that PW6 Insp. Vivek Pahtak also made enquiry from the secret informer and after satisfying himself, he informed ACP, N&CP Sh. Bir Singh on phone, who directed him to conduct the raid. He stated that on the directions of PW6 Inspector Vivek Pathak, he recorded DD No. 25 Ex.PW4/A at about 7.05 p.m. and submitted a copy thereof to PW6 Insp. Vivek Pathak. He proved DD No. 25 dated 31.01.2011 Ex.PW4/A and it bears his signature at point C.
21. PW10 SI Satyawan further stated that PW6 Insp. Vivek Pathak directed him to conduct the raid and to constitute a raiding team. He stated that he prepared a raiding team comprising PW8 HC Rajender Singh, HC Ramesh, PW2 W/HC Rama and Ct. Sohan Pal and explained the secret information to the members of the raiding team. He stated that he had collected the IO bag, field testing kit and electronic weighing machine and left the Narcotics Cell along with the secret informer by Government vehicle No. DL 1CJ 4367 which was being driven by Ct Rajinder. He stated that they left Narcotics Cell, Shakarpur at about 7.15 p.m. FIR 20/2011, PS Crime Branch Page26/56
22. PW10 SI Satyawan further stated that he recorded DD No. 26 Ex.PW10/A regarding departure from the police station. He stated that they reached near Nand Nagri Bus Depot via Pushta Road, Gandhi Nagar, Shastri Park red light, Khajoori Chowk, Loni flyover, Mandoli Chungi flyover at about 7.50 pm. He stated that on the way, he requested 5 passersby near Geeta Colony Shamshan Ghat, 5 passersby after crossing Shastri Park red light to join the raiding party but none of them agreed and they left without disclosing their names and addresses. He stated that after reaching at the spot, he requested 5 public persons to join the raiding team but they refused and left the spot without disclosing their names and addresses.
23. PW10 SI Satyawan further stated that after reaching near Nand Nagri Bus Depot, they had taken position at about 7.55 pm and started waiting for the accused persons. He stated that at about 8.00 pm, two ladies having one bag each on their shoulder and one of them had covered herself with a shawl of brown colour and the other with the green colour shawl, were coming towards the bus stand. He stated that the secret informer identified the lady wearing green colour shawl as Nazneen and the other lady wearing brown colour shawl as Rashida and thereafter, the secret informer left the spot. FIR 20/2011, PS Crime Branch Page27/56
24. PW10 SI Satyawan further stated that they apprehended accused Rashida and Nazneen. He stated that he disclosed his identity and identity of the members of the raiding team to them. He stated that he disclosed the secret information to the accused persons and informed them that they were suspected to having 'charas' with them. He stated that he explained to both the accused their legal rights and informed them that if they wanted, their search could be conducted in the presence of a Gazetted officer or a Magistrate. He stated that he informed the accused persons that they could search members of the raiding team and the Government vehicle prior to their search. He stated that both the accused refused the offer and thereafter, he prepared notices U/s 50 NDPS Act. He stated that a carbon copy of the notice was served upon the accused Rashida and thereafter, upon the accused Nazneen. He stated that the accused persons stated that they were illiterate and therefore, he read over the contents of the said notices to both of them but they refused the offer. He stated that he recorded their refusal on the original notices U/s 50 NDPS Act and the accused persons signed the said notices as well as their refusals. Original notices U/s 50 NDPS Act which were served upon accused Rashida and Nazneen are Ex.PW2/A and Ex.PW2/B. FIR 20/2011, PS Crime Branch Page28/56
25. The refusal of accused Rashida is Ex.PW1/C and refusal of accused Nazneen is Ex PW 2/D bearing their signatures at point B respectively. PW10 SI Satyawan stated that he requested 1012 public persons who were present at the spot to join the investigation but they refused and left the spot without disclosing their identity. He stated that PW2 W/HC Rama conducted search of accused Nazneen. He stated that accused Nazneen was carrying a red & black colour bag on her right side shoulder. He stated that PW2 W/HC Rama had taken the said bag from shoulder of accused Nazneen and handed him over. He stated that he opened the main zip of the said bag and found one black colour Burka and yellow colour suit salwar, and two transparent polythene bags containing black colour round objects thereunder. He stated that he had taken out the said articles and tested it with the field testing kit and found it to be 'charas'. He stated that he marked both the polythene packets as A & B and weighed the said packets on an electronic weighing scale and it came to be 3 kg each. He stated that he had taken out 50 grams each from both the said packets after breaking pieces from each round 'charas' and kept them in two small transparent polythene packets, and the said samples were marked as Mark A1 & A2 and B1 & B2 respectively.
FIR 20/2011, PS Crime Branch Page29/56
26. PW10 SI Satyawan further stated that the remaining 'charas' Mark A and B was kept in the said red & black colour bag alongwith the said salwarsuit and burka and converted into a cloth parcel Mark C. He stated that he filled Form FSL at the spot and affixed his seal having impression '7APS NB DELHI' on the said five parcels and on the FSL Form. He stated that seal after use was handed over to PW2 W/HC Rama and the said sealed parcels and FSL Form were seized vide seizure memo Ex PW 2/E.
27. PW10 SI Satyawan further stated that thereafter, PW2 W/HC Rama conducted search of accused Rashida who was carrying blue & black colour bag on her shoulder and handed him over the said bag. He opened the zip of the said bag and found two ladies suits and 7 transparent polythene packets containing black colour material thereunder. He opened the said packets and had taken out small pieces from the said packets and tested them with field testing kit and found it to be 'charas'. He stated that the said 7 polythene packets were marked as D, E, F, G, H, I & J and weighed on an electronic weighing scale, Mark D was found to be 3 kg, Mark E found to be 3 kg, Mark F found to be 3 kg, Mark G found to be 2 kg, Mark H found to be 2 kg, Mark I found to be 2 kg and Mark J found to be 1 kg.
FIR 20/2011, PS Crime Branch Page30/56
28. PW10 SI Satyawan further stated that as such, total 16 kg 'charas' was recovered from the possession of accused Rashida. He stated that he had taken out two samples of 50 grams each from each of the said packets after breaking the round shaped 'charas' and kept them in two transparent polythene packets and marked them as Mark D1, D2, E1, E2, F1, F2, G1, G2, H1, H2, I1, I2 and J1, J2. He stated that the remaining polythene packets containing 'charas' were kept in the said bag along with the said ladies suits and converted into a cloth parcel Mark K. He stated that Form FSL was filled and all the said parcels Mark D1, D2, E1, E2, F1, F2, G1, G2, H1, H2, I1, I2, J1, J2 & K were sealed with the seal of '7APS NB DELHI' after taking the seal from PW2 W/HC Rama and one seal was also affixed on the Form FSL. He stated that all the said parcels and Form FSL were seized vide seizure memo Ex.PW2/F and seal after use was handed over to PW2 W/HC Rama. PW10 SI Satyawan stated that he prepared a ruqqa Ex.PW10/B in the hand writing of Ct. Sohan Pal and handed it over to PW8 HC Rajender Singh alongwith all the sealed parcels, FSL Forms and carbon copies of the seizure memos with the direction to hand over ruqqa to the Duty Officer and other articles to SHO PS Crime Branch, Nehru Place, Delhi.
FIR 20/2011, PS Crime Branch Page31/56
29. PW10 Satyawan further stated that at about 01.00 am, PW8 HC Rajender left the spot with the ruqqa and the aforesaid articles in Government vehicle driven by Ct Rajinder for PS Crime Branch, Nehru Place, New Delhi. He stated that at about 3.15 am, PW9 ASI Rajveer Singh reached at the spot in the said Government vehicle and he handed him over the custody of the accused persons and the documents. He stated that PW9 ASI Rajveer Singh prepared the site plan Ex.PW9/B at his instance and after interrogation, he arrested accused Nazneen and Rashida vide arrest memo Ex.PW2/G and Ex.PW2/H and thereafter, PW2 W/HC Rama conducted personal search of the accused persons vide personal search memo Ex.PW2/J and Ex.PW2/K. He stated that in the personal search of accused Nazneen, one carbon copy of the notice U/s 50 NDPS Act and cash amount of Rs.430/ were recovered and in the personal search of the accused Rashida, one carbon copy of the notice U/s 50 NDPS Act and cash amount of Rs.300/ were recovered.
30. PW10 SI Satyawan further stated that at about 9.00 a.m., both the accused were produced before PW6 Inspector Vivek Pathak at Narcotics Cell, Shakarpur. He stated that on 01.02.2011, he prepared report U/s 57 NDPS Act Ex.PW10/C. FIR 20/2011, PS Crime Branch Page32/56
31. PW10 SI Satyawan identified the 'charas' recovered from accused Nazneen before the Court. One black & red colour raxine bag sealed in a cloth parcel was produced before the Court. It contained two transparent polythene packets i.e. Mark A Ex.P1 & Mark B Ex.P2. It also contained one yellow colour ladies suit and burka. He identified the sample parcel Mark A1 & B1 which were sent to FSL, Rohini for chemical analysis containing remnants of the sample parcels which are Ex.P7 & Ex.P10. Sample parcels Mark A2 & Mark B2 were also identified by him which are Ex.P9 & Ex.P12.
32. PW10 SI Satyawan has identified the 'charas' recovered from accused Rahida before the Court. One black & blue colour raxine bag sealed in a cloth parcel was produced before the Court. It contained two ladies suit and 7 polythene pockets containing parcels Mark D to J and exhibited as Ex.P13 (collectively). He identified sample parcels Mark D1, E1, F1, G1, H1, I1 and J1 produced in sealed condition which were sent to FSL for chemical analysis. The said sample parcels are exhibited as Ex.P17, Ex.P19, Ex.P21, Ex.P23, Ex.P25, Ex.P27, and Ex.P29. Sample parcels Mark D2, E2, F2, G2, H2, I2 and J2 were also produced in sealed condition before the Court which are exhibited as Ex.P31, Ex.P32, Ex.P33, Ex.P34, Ex.P35, Ex.P36 and Ex.P37. FIR 20/2011, PS Crime Branch Page33/56
33. PW10 SI Satyawan subjected to cross examination by the defence. The defence has failed to elicit any contradiction much less then material contradiction in his cross examination. He withstood the litmus test of cross examination. His testimony is credible and inspires the confidence of the Court.
34. PW10 SI Satyawan was corroborated by PW2 W/HC Rama on material aspect. PW2 W/HC Rama has corroborated PW10 SI Satyawan on the factum of receiving secret information, time and place of recovery of the contraband, recovery of 6 kg 'charas' from accused Nazneen and 16 kg. 'charas' from accused Rashida. She had taken the bags from both the accused persons and handed them over to PW10 SI Satyawan. She has also corroborated PW10 SI Satyawan in so far as the fact that he had apprised both the accused persons about their right to be searched in the presence of a Gazetted Officer or a Magistrate. She has also proved notice U/s 50 NDPS Act Ex. PW2/A which was served upon accused Rashida and notice U/s 50 NDPS Act Ex.PW2/B which was served upon accused Nazneen. She has also proved that PW10 IO SI Satyawan had explained the contents of the said notices to both the accused and recorded their refusal since they stated themselves illiterate. She has proved refusal of both the accused. FIR 20/2011, PS Crime Branch Page34/56
35. PW2 W/HC Rama has also corroborated PW10 SI Satyawan regarding the fact that 50 grams of 'charas' was taken out from each polythene packet Mark A & B recovered from accused Nazneen and Mark D1 to J1 recovered from accused Rashida which were duly sealed in a cloth parcel in her presence and marked as Mark A1, A2 & B1, B2 and Mark D1 to J1 & D2 to J2. She has identified the recovered 'charas' which was produced before the Court. She conducted persons search of both the accused and proved personal search memo Ex.PW2/J and Ex.PW2/K wherein carbon copy of notices served upon accused Nazneen and Rashida were also recovered. She was subjected a searching cross examination but she withstood the acid test of cross examination. As regards discrepancies, as pointed out by Ld. defence counsel in her cross examination, it can be stated that they are either inconsequential or minor in nature. The Court will address the discrepancies as pointed out by the defence separately by dealing with the contentions separately.
36. PW8 HC Rajender Singh was a material witness. He was a member of the raiding team. He has also materially corroborated PW10 SI Satyawan regarding recovery of 'charas' from both the accused persons.
FIR 20/2011, PS Crime Branch Page35/56
37. PW8 HC Rajender Singh had taken ruqqa to PS Crime Branch, Nehru Place for registration of FIR as well as the recovered 'charas' in 20 cloth parcels alongwith sealed FSL Forms and carbon copies of seizure memos to PW7 Insp. Kuldeep Singh. In his depositions, it has come on record that he had handed over the said articles to PW7 Insp. Kuldeep Singh in intact condition at PS Crime Branch, Nehru Place. PW7 Insp. Kuldeep Singh as well as PW3 HC Jag Narain have proved that the said 20 sealed pulandas, sealed FSL Forms and carbon copies of seizure memos were received by PW7 Insp. Kuldeep Singh who affixed his seal having impression 'KSY' on the said 20 sealed parcels and two FSL Forms and deposited the said articles alongwith carbon copies of seizure memos with PW3 HC Jag Narain, MHC(M).
38. PW3 HC Jag Narain, MHC(M) has proved that the said 20 sealed pulandas were remained with him in intact condition and on 08.02.2011 sample parcels Mark A1, B1, D1, E1, F1, G1, H1, I1 and J1 alongwith two FSL Forms having the seal impression of '7APS NB DELHI' and 'KSY' were sent to FSL vide RC No. 60/21 Ex.PW1/A. FSL report Ex.PW9/D further shows that the said 9 sealed parcels were received by FSL on 26.04.2011 were received by FSL in intact condition and seals tallied with the specimen seals as per FSL Forms. FIR 20/2011, PS Crime Branch Page36/56
39. FSL report Ex.PW9/D has proved that exhibits A1, B1, D1, E1, F1, G1, H1, I1 and J1 were found to be 'charas (cannabis'). It further shows that the remnants of the said exhibits were sealed with the seal of 'SSK FSL DELHI'. The said 9 sample parcels were produced before this Court on 30.09.2011 with the seal having impression 'SSK FSL DELHI'.
40. The prosecution has also proved that on 01.02.2011, PW10 SI Satyawan submitted special report U/s 57 NDPS Act Ex.PW10/C regarding recovery of 'charas' and PW9 ASI Rajveer Singh special report U/s 57 NDPS Act Ex.PW9/E regarding arrest of the accused persons to PW6 Insp. Vivek Pathak who had forwarded it to ACP/N & CP and Addl. DCP Crime which are Ex.PW4/C and Ex.PW4/D respectively. PW4 HC Om Prakash has proved that the report regarding receipt of secret information i.e. DD No. 25 Ex.PW4/A and special reports U/s 57 of the NDPS Act Ex.PW4/C and Ex.PW4/D were received in the ACP Office, Narcotics Cell, Shakarpur, Delhi and duly seen by ACP Bir Singh and Addl. DCP Crime Sanjay Bhatia. PW4 HC Om Prakash has produced original register containing relevant entry at serial No. 169 regarding receipt of DD No. 25 dated 31.01.2011 and the relevant entries Ex.PW4/B. FIR 20/2011, PS Crime Branch Page37/56
41. PW4 HC Om Prakash has also proved that special report U/s 57 NDPS Act were received in the Office of ACP vide diary No. 170 and 171 and the relevant page containing the said entries is Ex.PW4/B.
42. It is thus, clear that the secret information was duly recorded and forwarded to senior officer as provided U/s 42 of the NDPS Act.
43. The prosecution has been able to prove that on 31.01.2011 at about 8.00 p.m., in front of Bus Stand near Nand Nagri Bus Depot, PW10 SI Satyawan alongwith his team comprising PW2 W/HC Rama, PW8 HC Rajender Singh, HC Ramesh and Ct. Sohan Pal apprehended accused Nazneen and recovered 6 kgm. 'charas' from her possession and further, apprehended accused Rashida and recovered 16 kgm, 'charas' from her possession. The prosecution has proved that the recovered 'charas' including sample parcels were duly sealed and FSL Forms were duly filled and sealed at the spot and remained in intact condition till the time the said recovered 'charas' including sample parcels were produced before the Court.
44. The prosecution has also been able to prove that special report regarding apprehension of accused persons and recovery of 'charas' from their possession was duly forwarded to senior officers of police within 48 hours as provided U/s 57 of the NDPS Act.
FIR 20/2011, PS Crime Branch Page38/56
45. So far as contention that the weight of the sample parcels was 50 grams each but the the weight of the sample parcels as detailed in FSL report Ex.PW9/D is different and therefore, there is sufficient ground to infer that the sample parcels sent to FSL were not the sample parcels taken by the police from the recovered 'charas' is concerned, it can be stated that the weight of sample parcels as stated in FSL report ranges from 44.41 grams to 47.95 grams. Such minor variation in the weight of the sample parcels cannot be a reason to doubt the veracity of the case of the prosecution. Electronic machine used by the police for weighing the sample parcels cannot be as accurate as the weighing machine used by the FSL. Such variation in the weight of sample parcels are inconsequential. In 'Madan Lal & Anr. v. State of Himachal Pradesh', (2003) 7SCC 465, Hon'ble Supreme Court observed in the para No. 17 of the Judgment as under:
Coming to the plea that there was reduction in weight of the samples sent for analysis and there was tampering, it has to be noted that this aspect has also been considered by the Trial Court which has recorded the reasons for rejecting the same. It has been noted that the seals were intact and there was no tampering. The view has been endorsed by the High Court. On considering the reasoning indicated that there was very minimal and almost ignorable variation in wright, we find no reason to interfere with the findings.FIR 20/2011, PS Crime Branch Page39/56
46. So far as contention that the senior officers who received report U/s 57 of the NDPS Act has not been examined to prove the said reports is concerned, it can be stated that PW4 HC Om Prakash has produced the original register containing entry at serial No. 170 and 171 regarding receipt of special report Ex.PW4/C and Ex.PW4/D. He has clearly deposed that the said reports were produced before Sh. Bir Singh, ACP, Narcotics Cell and Addl. DCP Crime Sh. Sanjay Bhatia who signed the said reports at point A & B respectively. He has not been cross examined by the defence. His testimony regarding receipt of the said special report Ex.PW4/C and Ex.PW4/D in the ACP Office on 01.02.2011 vide diary No. 170 and 171 Ex.PW4/B remained unchallenged. PW6 Insp. Vivek Pathak has also deposed that he had forwarded the reports Ex.PW4/C and Ex.PW4/D to senior officers on 01.02.2011 and identified his signatures at point C. Therefore, no exception can be taken for nonexamination of ACP Sh. Bir Singh and Addl. DCP Crime Sh. Sanjay Bhatia in the Court. There is sufficient material on record from which it can be reasonably inferred that the said reports Ex.PW4/C and Ex.PW4/D were duly forwarded by PW6 Insp. Vivek Pathak and produced before ACP Bir Singh and Addl.
DCP Crime Sanjay Bhatia on 01.02.2011 and signed by them. FIR 20/2011, PS Crime Branch Page40/56
47. As regards contention that no public witness was associated in recovery and seizure proceedings despite availability is concerned, it can be stated that PW10 SI Satyawan has clearly deposed that he may efforts to associate independent witnesses at Geeta Colony Shamshan Ghat, Shastri Park Red Light and at Nand Nagri Bus Depot but they refused to join the raiding team. PW2 W/HC Rama as well as PW8 HC Rajender Singh has also corroborated him on this aspect. In 'Ramswaroop v. State (Government of NCT of Delhi), Crl. Appl. No. 1327/2010 decided on 21.05.2013, Hon'ble Supreme Court while dealing with an argument that the seizure had taken place as a crowded place but the prosecution chose not to examine any independent witness and in the absence of corroboration from independent witnesses the evidence of only police officials should not have been given credence to, has observed as under:
"7. To appreciate the first limb of submissions, we have carefully scrutinized the evidence brought on record and perused the judgment of the High Court and that of the Trial Court. It is noticeable that the evidence of PW7, namely, Ritesh Kumar, has been supported by Balwant Singh, PW5, as well as other witnesses. It has come, in the evidence of Ritesh Kumar that he had asked the passerby to be witnesses but none of them agreed and left without FIR 20/2011, PS Crime Branch Page41/56 disclosing their names and addresses. On a careful perusal of their version we do not notice anything by which their evidence can be treated to be untrustworthy. On the contrary it is absolutely unimpeachable. We may note herewith profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. Vs. Anil Singh, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the Court and therefore, the prosecution case cannot be doubted for non examination the independent witnesses.
8. At this juncture a passage from State Govt. of NCT of Delhi Vs. Sunil and another is apt to quote:
(a) 21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during postindependent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a propositions of law the presumption should be the other way around. That official acts of the police have been regularly FIR 20/2011, PS Crime Branch Page42/56 performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case.
It the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
9. In Ramjee Rai and others Vs. State of Bihar, it has been opined as follows:
10. Keeping in view the aforesaid authorities, it can safely be stated that in the case at hand there is no reason to hold that nonexamination of the independent witnesses affect the prosecution case and, hence, we unhesitatingly the submissions advanced by the learned counsel for the appellant". FIR 20/2011, PS Crime Branch Page43/56
48. Recently, in 'Asif Khan @ Kallu Vs. The State of NCT of Delhi', Crl. Appeal. No. 1122/12 decided on 29.04.2014; Hon'ble High Court has observed as under:
11. There is no doubt that the recovery has been made from the accused at public place. The investigating officers have duly explained that they had asked several persons to join the investigation but all of them had refused. There is no doubt that today in the society there is apathy in the public. Even if somebody is lying in an injured condition, people just look at the injured and walk away. It is very seldom that people stop and try to help the injured or make an effort to remove the person to a nearby hospital. This Court as well as the apex Court has been crying about the insensitivity of public in catena of cases. It is a hard fact that nobody wants to get involved into police cases.
People are becoming on lookers. When they are asked to witness anything they just show their difficulty and try to stay away. In view of this apathy of the public, the police have to act on their own. It, thus, cannot be said that because public persons were not made a witness, the entire proceedings are vitiated.
49. Ld. defence counsel contended that there are material contradiction regarding the time of recording of FIR and arrival of PW9 ASI Rajveer Singh at the spot in question.
FIR 20/2011, PS Crime Branch Page44/56
50. PW8 HC Rajender Singh stated that he had left the spot alongwith ruqqa and samples, sealed FSL Forms and copies of seizure memos at 01.00 a.m. and he reached at PS Crime Branch, Nehru Place, New Delhi at 2.00 a.m. PW5 HC Kewla Nand stated that he received the ruqqa at about 2.00 a.m. He stated in his cross examination that he had taken 11/2 hour in recording the FIR. PW9 ASI Rajveer Singh stated that at about 2.45 a.m., he left for further investigation of the case vide DD No. 2 Ex.PW9/A and reached at the spot at 3.15 a.m. It is seen that PW9 ASI Rajveer Singh proceeded from Narcotics Cell, Shakarpur under the instruction of PW7 Insp. Kuldeep Singh and by that time, FIR was being recorded at PS Crime Branch, Nehru Place, New Delhi. PW9 ASI Rajveer Singh collected the copy of FIR and ruqqa at about 7.30 a.m. at PS Crime Branch, Nehru Place, New Delhi. Therefore, the defence cannot derive any benefit from the fact that the FIR was finally recorded at 3.30 a.m. i.e. before the time when PW9 ASI Rajveer Singh reached at the spot.
51. As regards contention that it was unusual no police official or PCR Van passed through the spot despite the fact that raiding team remained at the spot for 1011 hours is concerned, it can be stated that such absence of police officials from local police station or PCR Van FIR 20/2011, PS Crime Branch Page45/56 is not sufficient to doubt the otherwise credible evidence of the members of the raiding team regarding recovery of the contraband from the possession of the accused persons. Moreover, there is no reason either attributed or demonstrated to show that the police officials had any animosity or illwill against the accused persons.
52. So far as contention that no endeavour was made by the raiding team to produce the accused persons before a Magistrate or a Gazetted Officer is concerned, it is seen that the accused persons had not opted to be searched in the presence of a Gazetted Officer or a Magistrate.
53. So far as contention that the accused persons were illiterate and could understand Urdu language only and therefore, the notice U/s 50 NDPS Act as well as refusal recorded in Hindi is not a compliance of Section 50 of the NDPS Act. It is seen that accused Nazneen had signed her refusal as well as notice U/s 50 of the NDPS Act Ex.PW2/B and Ex.PW2/D in Hindi. Though, accused Rashida signed the said notice and her refusal Ex.PW2/A and Ex.PW2/C in Urdu but she has not stated in her statement U/s 313 Cr.P.C. that she did not understand her legal rights and the contents of the legal notice U/s 50 of the NDPS Act. She has also not stated that she could understand Urdu language only and not conversant with Hindi. FIR 20/2011, PS Crime Branch Page46/56
54. Accused Nazneen has also not stated in her statement U/s 313 Cr.P.C. that the contents of the notice U/s 50 of the NDPS Act Ex.PW2/B were not read over to him and she could not understand her legal rights regarding search in the presence of a Gazetted Officer or a Magistrate. She has also not stated that the refusal Ex.PW2/D was not recorded in the words spoken by her. This argument is squarely applies to the case of accused Rashida as well. There is sufficient evidence on record to the effect that PW10 SI Satyawan had apprised accused Nazneen and Rashida about their legal rights to be searched in the presence of a Gazetted Officer or a Magistrate and he recorded their refusal before subjecting them to search. Perusal of the notice U/s 50 NDPS Act Ex.PW2/A and PW2/B clearly shows that accused persons were apprised about their legal rights to be searched in the presence of a Magistrate and a Gazetted Officer and therefore, there is no violation of the provision contained in Section 50 of the NDPS Act.
55. Even otherwise, the recoveries in the present case were made from bags carried by accused Nazneen and Rashida and as such, Section 50 of the NDSP Act is not applicable. Reference can be made to 'Ramswaroop v. State (Government of NCT of Delhi)' (supra) as FIR 20/2011, PS Crime Branch Page47/56 under:
13. We have referred to the aforesaid decisions as the learned counsel has strenuously urged that the provision, being mandatory, there has to be strict compliance. But a significant one, in the case at hand 32 bags of poppy straw powder weighing 64 kgs. had been seized from the person of the accusedappellant. It has been established by adducing cogent and reliable evidence that the bags belonged to the appellant. In Ajmer Singh v. State of Haryana, (2010) 3 SCC 746; the appellant was carrying a bag on his shoulder and the said bag was searched and contraband articles were seized. While dealing with the applicability of Section 50 of the NDPS Act, two learned Judges referred to the decisions in Madan Lal v. State of H.P., (2003) 7 SCC 465 and State of H.P. v. Pawan Kumar, (2005) 4 SCC 350, and came to hold as follows: a. Thus, applying the interpretation of the word "search of person" as laid down by this Court in the decision mentioned about, to facts of the present case, it is clear that the compliance with Section 50 of the Act is not required. Therefore, the search conducted the investigating officers and the evidence collected thereby, is not illegal.
Consequently, we do not find any merit in the contention of the learned counsel of the appellant as regards the noncompliance with Section 50 of the Act.
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14. Tested on the bedrock of the aforesaid dictum, the contention, so assiduously raised, that there has been noncompliance of Section 50 of the NDPS Act is wholly sans substance.
56. In so far as the contention that FSL Forms were not produced by the prosecution nor the concerned record containing FSL Forms summoned from FSL, Rohini is concerned, it can be stated that FSL report Ex.PW9/D clearly shows that FSL, Rohini received 9 sealed parcels marked as Mark A1, B1, D1, E1, F1, G1, H1, I1 and J1 and seals were intact and tallied with the specimen seals as per forwarding letter (FSL Form). FSL, Rohini could not have tallied the seals appearing on the said 9 sample parcels if FSL Forms having seal impression were not forwarded to FSL, Rohini. Mere fact that the word "forwarding letter" has been used in the FSL report would not mean that FSL Forms were not sent to FSL, Rohini. Dealing with such contention in the case of Bilal Ahmad Vs. State reported as 2011 (1) JCC 27, Hon'ble High Court of Delhi has held as under: "10. I also do not find any merit in the contention that the form FSL was not deposited in the malkhana or that the same was not sent to the CFSL. PW3 Inspector Jeevan Singh has stated that the form FSL was filled and the pulanda was taken into possession vide Seizure Memo Ex. PW3/A. He took the pulanda and the FSL form in his possession along with the FIR 20/2011, PS Crime Branch Page49/56 seizure memo and deposited the pulanda and FSL form along with a copy of the seizure memo in the malkhana on 2nd May, 1999 at around 10 p.m. The testimony of PW3 Inspector Jeevan Singh also finds support from the testimony of PW9 Bhagmal Singh who also states that the samples and pulanda were deposited with him duly sealed with the seal of R.K. and J.S. He made the entry in register No. 19, Ex. PW9/A. The contention that the form FSL was not sent to CFSL Chandigarh, is unfounded. The CFSL report Exhibit PX states that "Seals were intact, and tallied with specimen seals impressions". The seals on the samples cannot be tallied except with the specimen seals on the FSL form. Thus, even without specifically stating that form FSL has been received with the samples, this endorsement clarifies that the form FSL was received. Delay in sending parcel to the CFSL is not fatal especially when as per the CFSL report, the seals are intact and tallied with the specimen seals. In State of Rajasthan v. Daul @ Daulat Giri MANU/SC/0881/2009 : 2009 (14) SCC 387 it was held:
1. The factual scenario goes to show that Jaswant Singh (PW1), 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 (PW8) 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. PW.5 reached the Superintendent of Police office and gave the samples to Jamnalal at 10.00 a.m. and received back the samples from Jamnalal at 5.00 p.m. and also obtained forwarding letter which is FIR 20/2011, PS Crime Branch Page50/56 Ex. P.12 and is dated 20/6/95. PW.5 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.
57. In the present case, as it has already been discussed above, the recovered 'charas' and FSL Forms were duly sealed after recovery of 'charas' at the spot and they were produced before PW7 Insp. Kuldeep Singh who also affixed his seal thereupon and deposited the case property with PW3 HC Jag Narain, MHC(M) and recorded DD No. 27 Ex.PW7/A in that regard. PW3 HC Jag Narain, MHC(M) has proved that he had received the 20 parcels and two FSL Forms duly sealed with seals having impression '7APS NB DELHI' and 'KSY' and he made entry in register No. 19 Ex.PW2/A and Ex.PW2/B. PW1 HC Dharmender had taken the sample parcels and two FSL Forms duly sealed with the said seals and deposited with FSL, Rohini on 08.02.2011. FSL report Ex.PW9/D also proves that 9 sample parcels FIR 20/2011, PS Crime Branch Page51/56 alongwith FSL Forms were received by FSL, Rohini and as such, there is nothing on record to show that the said sample parcels were tempered at any point of time till they were produced before Court.
58. As regards contention that FIR number and particulars of the case were written on the sample parcels at the spot before registration of the FIR and therefore, possibility of tampering and the fact that the proceedings were conducted in the police station cannot be ruled out is concerned, it can be stated that such inference cannot be raised in the presence of evidence of PW7 Insp. Kuldeep Singh and PW10 SI Satyawan. PW7 Insp. Kuldeep Singh has clearly stated that he put FIR number and his seal having impression 'KSY' on all the cloth pulandas and the FSL Forms and thereafter, he handed over all the sealed pulandas, FSL Forms and seizure memos to PW3 HC Jag Narain, MHC(M). DD No. 27 dated 01.02.2011 Ex.PW7/A also proved that PW7 Insp. Kuldeep Singh had put FIR number 20/11 on the cloth parcels, two FSL Forms and two carbon copies of seizure memos and put his seal of 'KSY' on the said 20 cloth parcels and two FSL Forms and thereafter, called HC Jag Narain, MHC(M) with register No. 19 to his office and handed him over the case property for being deposited in the Malkhana. No suggestion was made to PW7 Insp. Kuldeep FIR 20/2011, PS Crime Branch Page52/56 Singh that the said 20 sealed cloth parcels and two FSL Forms were having FIR number when they were produced before him by PW8 HC Rajender Singh. No such suggestion was made to PW10 SI Satyawan.
59. Furthermore, no such suggestion that FIR number was put on the said cloth parcels at the spot was made to PW8 HC Rajender Singh. PW9 ASI Rajveer Singh is the most material witness. He had prepared the cloth parcels and affixed his seal thereupon. He filled FSL Forms and affixed his seal thereon. However, no suggestion was made to him that the FIR number was written at the spot before handing over the same to PW8 HC Rajender Singh for bing taken to PW7 Insp. Kuldeep Singh at PS Crime Branch, Nehru Place, New Delhi.
60. As regards contention that the seal after use was not handed over to an independent person and no memo was prepared either at the time of handing over seal to PW2 W/HC Rama nor at the time of receiving it back is concerned, it can be stated that there is no rule of law that the seal should be handed over to an independent person or that a memo should be prepared in that regard. In Fatima Bibi v.
Inspector of Custom, CRA No. 11DB of 2010, decided on 26.03.2013 /MANU/PH/0183/2013; Hon'ble High Court of Punjab & Haryana FIR 20/2011, PS Crime Branch Page53/56 held in para 28 of the judgment that "Handing over of seal to the third person is a matter of prudence and not of law".
61. As regards contention that the sample parcels were not sent to FSL, Rohini for chemical analysis within 72 hours of seizure as per NCB guidelines is concerned, it can be stated that mere delay of 4 days without any material on record to show that there was any tampering with the sample parcels is not sufficient to doubt the prosecution case. In the case at hand, there is sufficient evidence from the time of seizure till it was received by FSL, Rohini that the sample parcels were in intact condition and seals thereupon were not tempered. In Asif Khan @ Kallu v. State (supra), Hon'ble High Court has held in para No. 7 of the judgment that the delay in sending the sample was well explained and there was no evidence to suggest that during this period, there was any tampering of the sample. In Hardeep Singh v. State of Punjab; (2008) 8 SCC 557, Hon'ble Supreme Court has held that delay of about 14 days in sending the sample did not and could not have caused any prejudice to the appellant. In Bilal Ahmad v. State (supra); Hon'ble High Court of Delhi has held in the para No. 10 of the judgment that delay in sending parcel to the CFSL is not fatal especially when as per the CFSL report, the seals were intact and FIR 20/2011, PS Crime Branch Page54/56 tallied with the specimen seal. Therefore, contention regarding delay in sending samples to FSL, Rohini is rejected.
62. As regards contention that accused persons were picked up from Old Delhi Railway Station and the police officials have misappropriated their jewellery and watches is concerned, it can be stated that no such submissions was made to the Court either in writing or orally by the accused persons or their counsel when the accused persons were produced before this Court. Accused persons never made any complaint either to the Court or any other authority in this regard. Such self serving argument at this stage cannot hold water.
63. In view of aforesaid discussion, this Court is of the considered opinion that the prosecution has successfully proved due compliance of the entire procedure laid down under the previous provision of the NDPS Act and there is nothing to create a doubt in the depositions of the prosecution witnesses. The prosecution has been able to prove that the accused Nazneen was found in possession of 6 kgm. of 'charas' and accused Rashida was found in possession of 16 kgm. of 'charas' on 31.01.2011 at about 8.00 p.m., in front of Bus Stand near Nand Nagri Bus Depot without any license or permit and thereby, they have committed an offence punishable U/s 20 (b) (ii) (C) of the NDPS Act. FIR 20/2011, PS Crime Branch Page55/56
64. Therefore, accused Nazneen is hereby held guilty for committing offence U/s 20 (b) (ii) (C) of the NDPS Act.
65. Accused Rashida is also held guilty for committing offence U/s 20 (b) (ii) (C) of the NDPS Act.
66. Copy of the present order be given to both the accused free of cost against receipt.
Announced in the open court Sanjay Sharma
th
on this 20 day of May, 2014. Special Judge NDPS (NorthEast) ASJ, KKD Courts, Delhi.
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