Delhi District Court
5 Pm. Acp Ishwar Singh Who Was In Uniform ... vs Intelligence Officer As on 28 January, 2009
1
IN THE COURT OF SH. P.S.TEJI : SPECIAL JUDGE :NDPS
NEW DELHI.
SC No. 94/04 FIR No.: 466/03
PS: Kalkaji.
U/Sec. 21/61/85 NDPS Act.
State
Versus
Rani w/o Puran Lal
R/o Jhuggi No. A-144, Nehru Camp,
Govindpuri, New Delhi.
JUDGMENT
The accused Rani has been sent for trial for offence under Section 21 NDPS Act in a case FIR No. 466/03 registered by PS Kalkaji.
2. I have heard the Ld. APP for the State as well as Ld. Counsel for the accused and gone through the entire material available on the record. 2
3. In brief the facts of the case are that on 2.6.2003 informer informed at police post Govindpuri at 12.10 noon SI Girjesh that one woman who lives in Nehru Camp used to sell smack and on that day she will go with smack from her house via Anandmai Marg and Okhla service road round corner to deliver the same to one person. The said information was recorded as DD 12, who informed the SHO and asked the duty constable to send lady constable. It is further case of prosecution that vide DD 12 lady constable Alka came at police post who along with Ct. Mahabir Singh were informed by the Sub Inspector in his room about the information and a raiding party was constituted comprising of SHO, Lady Constable Alka, Ct. Mahabir Singh and they along with driver Govind Ram, operator Satpal and informer in government vehicle DL1C F 1221 at 12.35 noon proceeded to the spot and on the way requested three public persons at Okhla Service road near Aggarwal Sweets to join the raiding party after informing them 3 about the information out of whom two went without disclosing their name and address while third Radeshwar Singh agreed to join. It is further case of prosecution that when at about 12.50 PM, they reached Okhla service road Pocket-A-14, where informer pointed out one lady wearing green colour suit salwar coming towards round corner of Okhla stating that she was the same lady going for supply of smack. It is further case of prosecution that SI Girjesh, SHO, Ct. Mahabir Singh and L/Ct. Alka got down from the vehicle with Radeshwar Singh and that lady was stopped near the street light with the help of lady constable and on inquiry she disclosed her name as Rani. It is further case of prosecution that SI Grijesh informed her that they were having information that she possesses smack and served notice under Section 50 NDPS Act to her informing her right of search in the presence of a Gazetted Officer or Magistrate to which she replied nothing at which SI Girjesh Singh called ACP through wireless, who came at the spot and 4 informed Rani about the notice and search was conducted by L/Ct. Alka and when Alka checked the handkerchief wrapped packet from her right hand, brown powder was found in a white polythene which was checked and smelled like smack and Rani also disclosed the same as smack. It is further case of prosecution that digital weighing machine was brought at the spot through Ct. Mahabir Singh and brown powder was found to be 100 grams out of which 5 grams was taken out as sample; remaining smack was kept in the same white polythene and sealed in pullanda whereas same was kept in plastic box and also sealed in pullanda with the seal of GP and CFSL form was also filled and sealed with seal of GP and seal after use was given to witness Radheshwar. It is case of prosecution that smack pullanda was marked "A" and sample pullanda as mark "B" and the same were seized vide a seizure memo. It is further case of prosecution that case FIR was got registered on the basis of rukka prepared by SI Girjesh 5 and thereafter further investigation was conducted by SI Ramlal. It is further case of prosecution that case property, CFSL form, copy of recovery memo was handed over to SHO who after putting his seal MPS deposited the same in malkhana. The accused was arrested and after completion of investigation challan was filed.
4. Charge for offence under Section 21 (b) of NDPS Act was framed against the accused on 17.2.2004 to which accused pleaded not guilty and claimed trial.
5. In order to prove the charges against the accused, prosecution examined PW-1 Ishwar Singh, ACP. He deposed that on 2.6.2003, at about 1.15 PM, Chowki Incharge SI Girjesh Singh of PP Govind Puri informed him on wireless that he had an information that some lady is in possession of some smack and she had been detained 6 at Okhla Service Road, hence, he reached at the spot at about 1.25 PM where SI Girjesh Singh, SHO, Lady Ct. and some police staff and accused present in court were present. He deposed that notice under Section 50 NDPS Act was already served to the accused. He deposed that he told the accused if she desired her search can be conducted before a Magistrate or a Gazetted Officer and he also gave his introduction to the accused as a Gazetted Officer; accused refused for the same and thereafter search of accused was conducted by Lady constable; there was one checked handkerchief in her right hand which contain white polythene bag and that polythene bag contained brown colour powder which on checking found to be smack and accused also confirmed it. He deposed that smack weighed as 100 grams out of which 5 grams was drawn as sample which was kept in polythene pouch and then in empty matchbox and remaining in the same packing and converted into cloth parcels which were sealed with seal 7 of GP. He deposed that CFSL form was filled at the spot and seal was affixed on CFSL form. He proved seizure memo as Ex. PW 1/A and that he received report under Section 57 NDPS Act in this case. He identified the smack as Ex. P-1, polythene as Ex. P-2 and handkerchief as Ex. P-3 and remnant sample as Ex. P-4. Small plastic jar/dibbi as Ex.P-5 He proved the report received under Section 57 NDPS Act as Ex. PW 11/B. In cross-examination he deposed that Secret information was not shown to him. He deposed that he asked the accused if she wanted to have her search before Gazetted officer or magistrate and he also asked the accused to have her search before him being a gazetted officer but accused did not say anything. He deposed that search was taken by a lady constable whose name he did not remember. He stated that in his presence nothing was given in writing to accused but prior to his reaching the spot he had been informed by the IO that notice under Section 50 NDPS Act had been 8 given to the accused. He deposed that seizure memo bears his signatures and he remained at the spot for about 30-45 minutes but exact time he could not say. He deposed that one checkdar handkerchief and inside that one polythene bag was there which further contained brown sugar which was recovered from the possession of the accused and this was in the hand of accused. He deposed that goods were sealed in his presence but he had not signed the CFSL form, however, it was prepared in his presence. He stated that he did not aware if the husband of accused namely Puran had got raided two police officers from PS Kalkaji and case was registered by anti corruption branch vide FIR 53/2002 on 6.12.2002. He denied that he was in collusion with certain police officers and implicated the accused so that they could save those police officers against whom corruption case was pending.
6. PW-2 Inspt. Mahipal Singh has deposed 9 that on 2.6.2003 he was SHO at PS Kalkaji and on that day at about 12.10 PM, he went to PP Govindpuri where SI Girjesh Singh informed him that he has an information that one lady who deals in smack will be coming along with smack on the round about of Anand Mai Marg and Okhla service road at about 1 PM for giving delivery of the same to someone and SI Girjesh Singh called one lady constable from police station Kalkaji and lady ct. Alka came to PP Govindpuri and was appraised about the information by SI Girjesh Singh, Ct. Mahavir Singh was also apprised by SI about information. He deposed that information was reduced into DD and thereafter raiding party was constituted consisting of himself, SI Girjesh Singh, Lady Ct. Alka, Ct. Mahavir and proceeded to the spot in official vehicle driven by Ct. Govind Ram and operator Ct. Satpal. He deposed that at 12.35 PM, they left PP Govindpuri and on the way near Aggarwal Sweets, three persons were asked to join the raiding party and one person Radheshwar agreed to join the raiding 10 party and informer was also with them. He deposed that at about 12.50 PM, they all reached at Okhla service road and accused present in court was seen walking on the footpath pointed out by the informer. He deposed that at the time when public witness was joined, he was also apprised about the information by the IO. He deposed that SI Girjesh Singh stopped the accused and gave notice under Section 50 NDPS Act and informed her right about the search before a Gazetted officer or a Magistrate if arranged and accused kept quite. He deposed that at that time SI Girjesh Singh informed ACP Kalaji on wireless and was requested to reach at the spot, who arrived at the spot at about 1.15 PM in uniform and he also appraised accused about notice under Section 50 NDPS Act and she was further told if she wanted to be searched before a Gazetted Officer or a Magistrate for which she did not give any answer. The search of accused was conducted by Ct. Alka. He deposed that accused was having one checked striped handkerchief 11 in the shape of potli and same was opened by lady Ct. Alka which contained one polythene and polythene contained brown coloured powder which was smack and accused also confirmed that it was smack. He deposed that Ct. Mahavir was sent to bring weighing scale who brought it and the smack weighed as 100 grams out of which 5 grams was drawn as sample and kept in a white plastic dabbi; the remaining smack was put in same packing and cloth parcels were prepared which were sealed with seal of GP. He deposed that CFSL form was also filled at the spot. He deposed that case property was seized vide memo Ex. PW 1/A and thereafter IO handed over both parcels, CFSL form and copy of seizure memo to him and prepared rukka, sent through Ct. Mahavir for registration of the case. He deposed that he took entire case property and CFSL form along with copy of seizure memo to PS Kalkaji and affixed his seal MPS on both the parcels and deposited the same in malkhana with CFSL form. He identified the 12 case property as Ex. P-1 to P-5.
In cross-examination he deposed that secret information was received by SI Girjesh Kumar who recorded the same in DD diary and he did not remember its number. He deposed that raiding party was constituted by him and public witness was joined on the way. He deposed that notice U/Sec. 50 NDPS Act was served by SI Girjesh Kumar but he did not remember whether he signed it or not. He deposed that ACP Ishwar Singh was called by SI and ACP came at the spot at 1.15 PM whereas accused was apprehended at 12.50 PM. He deposed that search of accused was taken on the direction of ACP by Ct. Alka and the search memo was prepared at the spot signed by ACP. He deposed that recovery memo contains signature of ACP at point "A" and his at point "B". He deposed that two parcels were sealed and both contain his signatures and he also put his seal and also on CFSL form and SI Girjesh Singh also put his signatures and seal on both the parcels as well as 13 CFSL form. He deposed that he knows the name of husband of accused and that he got raided two persons from PS Kalkaji. He deposed that incident was prior to his posting. He deposed that after the arrest of accused, her husband also came in police station and was arrested under Section 107/151 Cr.P.C. for creating breach of peace. He denied that he along with SI Girjesh Singh had called the accused in police post from her house; in the police post she was given threats to take back the case and depose in their favour and since it was not agreed, the case was falsely planted upon the accused.
7. PW-3 Ct. Sumer Singh is the DD writer. He proved DD 12 recorded at 12.PM on 2.6.2003 as Ex. PW 3/A recorded by SI Girjesh Singh.
8. PW-4 Ct. Mahavir has deposed that on 2.6.2002 he was posted at PS Kalkaji and on that day he 14 was called by SI Girjesh Singh Incharge PP Govind Puri and lady Ct. Alka to his room and brief that a lady who was residing at Nehru Camp Jhuggi and used to sell smack will come at Okhla Gol Chakar at about 1 PM to deliver smack to some one and after that a raiding party was organized under the supervision of Inspt. Mahipal Singh and secret informer was also with them. He deposed that they all including driver and operator of SHO reached Gol Chakar Okhla in official gypsy and they left police post at 12.35 PM and when they reached Okhla service road Aggarwal sweets, SI Girjesh Singh and Inspt. Mahipal asked two-three passerby to join the raiding party and one person Radeshwar Singh voluntarily agreed to join and he also accompanied them. He deposed that they reached gol chakkar okhla at 12.50 PM and when reached in front of pocket 14, secret informer pointed out towards the lady who was wearing a green colour suit and was having a packet ( potli) wrapped in checkdar hankey present in court, whose 15 name revealed later on Rani, was apprehended on the pointing out of informer with the help of lady Ct. Alka and told about the information regarding possession of smack with her. Notice under Section 50 NDPS Act was given to accused but accused had not replied to the said notice. He deposed that thereafter ACP was informed on wireless who arrived within short time, i.e. 1.15 PM. ACP Ishwar Singh who was in uniform reached at the spot who showed his identity and told the accused about the provision of Section 50 NDPS Act informing that she has right to be searched before Gazetted officer or a Magistrate but accused again not replied. He deposed that signature of accused were taken on the notice and lady ct. Alka was directed to take personal search of the accused. He deposed that accused was having a potli tied in a handkerchief in her hand; the same was opened found containing white polythene having powder of brown colour which was physically examined and smelled appearing to be 16 smack and accused also confessed it to be smack. He deposed that on the directions of IO he went with gypsy to police post and bought digital weighing machine to the spot. The substance was weighted as 100 grams out of which 5 gram was taken as sample kept in a small plastic jar sealed with pullandas with seal of GP and remaining in the same polythene and both pullandas were sealed in cloth parcel with seal of GP. He deposed that CFSL form was prepared at the spot on which seal was affixed. He deposed that parcel of sample was marked "B" and remaining smack as "A" which were seized vide memo Ex. PW 1/A bearing his signatures at point "C" and after that IO handed over both pulandas, CFSL form, copy of seizure memo to Inspt. Mahipal Singh. He deposed that SI Girjesh Singh prepared rukka and gave the same to him and he handed over it to duty officer for registration of the case and after registration of the case duty officer handed over original rukka and copy of FIR which he handed over to SI Ram Lal in police 17 post and reached at the spot where SI Girjesh Singh handed over relevant papers and accused to SI Ram Lal. He deposed that SI Ram Lal recorded his statement. He also identified case property as Ex. P-1 to P-5, i.e. remaining smack, polythene, handkerchief, sample smack powder and plastic jar respectively.
In cross-examination he deposed that he was called at about 12.30 PM by SI Girjesh Singh and at the same time Alka was called. He stated that Alka was present at police post however, she was posted at police station Kalkaji. He deposed that details of secret information was told to him by SI Girjesh Singh. He deposed that they could not reach Okhla Gol Chakar to the purchaser as before reaching accused was apprehended. He deposed that they started from post at 12.35 PM. He stated that three persons were asked and he can tell the name of one person who joined the proceedings. He deposed that jhuggi of Nehru camp fall in the area of their police post. He deposed that 18 accused was apprehended 50 meters before the Gol Chakar and at the time of apprehension accused was going forward and they apprehended her from behind at 12.55 PM. SI Girjesh Singh had told the accused that he has the information regarding she being in possession of smack with her. He deposed that accused was personally searched by lady Ct. Alka and accused was asked to take personal search of constable Alka before her search but she refused. He deposed that SI Girjesh Singh had given notice in writing that she could take their personal search. He deposed that SHO was with raiding party with them but the IO had only asked the accused to take the personal search of members of police party and SHO did not ask her for the same. He deposed that the place of arrest of accused was a service road and house/shops from the place of arrest is more than 100 meters. He deposed that he did not know husband of accused Puran Mal. He deposed that he did not remember whether HC Surender and beat Ct. 19 Ramesh Chand and Umesh were present in police post at that very time or not. Again stated that they were not present at police post and did not remember about their presence on 6.11.2002 and did not know if they had demanded Rs. 30,000/- from Puran Mal which Puran Mal refused and later on HC Suresh, one Mukesh were arrested by Anti Corruption department in FIR no. 53/2002. He deposed that he did not know if on the same day husband of the accused was arrested under Section 151/107 Cr.P.C. by HC Asha Ram. He denied that accused was arrested from her house or was implicated in this case or that no smack was recovered from her.
9. PW-5 Ct. P.M. Mathew has deposed that on 22.6.2003 he was posted at PS Kalkaji and on that day he received one pullanda in sealed condition and FSL form from MHCM vide RC 49/21 and deposited the same at FSL office Malviya Nagar. He deposed that these pullandas were not tampered by him so long remained in 20 his presence.
10. PW-6 W/Ct. Alka has deposed that on 2.6.2003, she was posted at PS Kalkaji and was informed by duty officer to reach police post Govindpui and when he reached there, she found constable Mahabir and one secret informer; there she came to know that she had to join raiding party with SHO Kalkaji, SI Girjesh, secret informer and Ct. Mahabir. She deposed that at about 12.30 PM, along with raiding party with Govt. vehicle reached Okhla Service road where as per information one lady Rani was to come; two- three persons on the way from public were requested to join the raiding party; one public person joined the raiding party and others left the place. She deposed that at the spot, secret informer pointed out towards a lady. She deposed that at about 12.50 PM when they reached at the spot accused Rani present in court whose name revealed later on came from Okhla service road side and was wearing green suit 21 and as carrying a small potli in right hand wrapped in hankey was apprehended. She deposed that SI Girjesh gave notice under Section 50 NDPS Act to accused and asked if she wanted to be searched before Magistrate or any Gazetted Officer/Rajpatra Adhikari, an arrangement can be made in this regard and it was told that it was her legal right. She deposed that accused remained silent and did not reply; meantime ACP Ishwar Singh was informed and he came at the spot who introduced himself to accused and also asked her if she wanted to be searched before any Magistrate or Rajpatra Adhikri but accused again remained silent and did not respond to the question of ACP. She deposed that ACP directed her to take search of accused and in formal search of accused Rs.600/- and except potli nothing incriminating was found. She deposed that potli was opened and checked by the IO which found to contain brown colour powder appears to be smack. She deposed that accused was also asked about the 22 powder and told that recovered powder is smack which was weighed as 100 grams out of which 5 grams was taken as sample put in a small plastic dibbi and remaining smack was put in the same polythene and the same were sealed in cloth parcel with seal of GP. She deposed that IO filled CFSL form and put his seal GP on it. She deposed that pulandas were seized vide seizure memo Ex. PW 1/A which bears her signature at point "B" and thereafter IO prepared rukka and handed over to Ct. Mahabir Singh for registration of the case; SI Ram Lal from police station reached at the spot and SI Girjesh Singh handed over accused and relevant papers to SI Ram Lal. She deposed that Rani was arrested by IO SI Ram Lal vide memo Ex. PW 6/A; personal search is Ex. PW 6/B in which Rs. 600/- pair of ear ring, two rings, one pair of chukti, notice under Section 50 NDPS Act, bangle of glass, yellow colour locket in black thread were found and seized. She identified the case property as Ex. P-1 to P-5 and also copy of notice recovered in personal 23 search as Ex. PW 6/C. In cross-examination she deposed that she was called from police station as a party to join raiding party and when they started from police post, chowki Incharge Girjesh Singh, SHO Mahipal Singh, one informer, constable Mahabir and she herself were together and all went in police van driven by driver Govind Ram. She deposed that vehicle was stopped in front of Aggarwal Sweet House, Okhla service road where they tried a public person to join the raiding party by SI Girjesh and she was sitting in the vehicle at that time. The person Radheshwar who agreed to join was also sat with them in police van. She deposed that they reached the spot on the vehicle at Okhla service road in front of A-14 where informed told that lady was coming from front and so they stopped the vehicle in front of her. She stated that she did not know where notice was written and from where it was taken out by IO but IO showed the notice to accused and gave her. She did not 24 sign the notice but Incharge police post Govind Puri had signed it but not in her presence. She did not remember whether it was signed by accused or not. She deposed that notice was taken by the accused and was later on recovered from personal search in jamatalashi taken when second IO Ram Lal came at the spot at 4.15 PM. She deposed that ACP came at about 1.15 PM. She deposed that they remained at the spot for more than 3 hours. She stated that she did not know if any person from public came there prior to arrival of SI Ram Lal except Radheshwar who was already with them. She denied that she was deposing falsely or did not join the raiding party or accused was falsely implicated in this case.
11. PW-7 W/SI Jepha is the duty officer. She deposed that on 2.6.2003 she was working as duty officer from 9 AM to 5 PM and on that day Ct. Mahabir Singh came to her at about 3.20 PM and handed over rukka 25 sent by SI Girjesh Singh for registration of the case and she recorded FIR 466/03 u/Section 21 of NDPS Act. She proved original FIR as Ex. PW 7/A and the further investigation was handed over to SI Ram Lal through Ct. Mahabir.
In cross-examination she deposed that she did not remember when copies of FIR were sent by her to Senior Officers but it was sent through special messenger.
12. PW-8 Radheshwar Singh is the public witness. He did not support the prosecution case and was declared hostile. He stated that accused was not apprehended in her presence by police; no smack was recovered from her in her presence. He admitted his signature on the seizure memo Ex. PW 1/A and arrest memo Ex. PW 6/A. In cross-examination by Ld. APP he denied having made statement Ex. PW 8/A to police.
13. PW-9 SI Girjesh Singh has deposed that 26 on 2.6.03 he was posted as Incharge PP Govind Puri PS Kalakji and at about 12.10 PM secret informer informed him that one lady who is residing at jhuggi Nehru camp used to carry out business of selling smack will come from her house along with smack and will reach at Okhla Gol Chakkar, Anand Mai Marg, service road to deliver the smack to some one which he lodged in dairy diary vide DD 12 copy of which is Ex. PW 3/A. He deposed that in the meantime Inspt. SHO Mahipal Singh also reached police post and he briefed about the information and he asked duty officer PS Kalkaji to call lady constable to PP Govindpuri; at about 12.30 lady Ct. Alka came and he also called Ct. Mahabir in his room where they were briefed and raiding party consisting of SHO, himself, lady Ct. Alka and Ct. Mahabir in government gypsy left and at about 12.35 PM when they reached near Aggarwal Sweet Okhla Service road, he asked 3-4 passer by to join the raiding party after briefing them and out of those persons one public person Radheshwar agreed to join 27 the raiding party voluntarily. He deposed that with public person raiding party reached at the spot and informer pointed out to one lady who was stopped, who on interrogation disclosed her name as Rani present in court wearing green colour suit carrying a small potli wrapped in chekdar hanky. He deposed that he told the accused about information of smack in her possession and wanted to search her; if she wanted to be searched before any Magistrate or Rajpatrit Adhikari, arrangement could be made in this regard and she could take search of the members of raiding party before her search but accused refused to be searched before any Magistrate or Rajpatrit Adhikari. He deposed that he served notice under Section 50 NDPS Act; copy of which is Ex. PW 9/A bearing his signature and of accused, reply of accused Ex. PW 9/B and thereafter he informed ACP Kalkaji Ishwar Singh who came at the spot at about 1.15 PM and verified about the facts of notice under Section 50 and after that he directed to take search of the accused. He 28 deposed that in formal search of accused Rani and search of potli which she was in her hand checked by Ld. Ct. Alka was recovered. The potli was opened and found to contain brownish colour powder wrapped in polythene of white colour appearing to be smack and accused also told that recovered powder is smack. He deposed that Ct. Mahabir was sent to brought digital weighing machine and the powder was weighed as 100 grams out of which 5 grams was taken as sample put in small plastic pouch and sealed in pullanda while remaining was wrapped in same polythene sealed in separate pullanda with the seal of GP. He deposed that form FSL was filled at the spot and specimen seal on FSL was also put. He deposed that both pullandas were seized vide seizure memo Ex. PW 1/A and pullanda having smack was marked "A" and sample was marked as "B". He deposed that he prepared rukka Ex. PW 9/C and sent through Ct. Mahabir for registration of the case. He deposed that he handed over both pullanda, 29 carbon copy of seizure memo and FSL form to SHO Mahipal Singh and further investigation was carried out by SI Ram Lal after registration of the case who came at the spot. He deposed that SI Ram Lal prepared site plan on his pointing out, recorded his statement and after that he left the spot. He identified the case property as Ex. P-1 to P-5 and notice under Section 50 produced by MHCM as Ex. PW 6/C. In cross-examination he deposed that he recorded DD entry in the register and as soon he started writing DD entry, SHO came to the police post. He deposed that he formed the raiding party and had informed three people about the raiding party out of that only one person namely R.D.Singh agreed to join. He deposed that name of the husband of Rani is Puran Lal as told by her and he did not verify the same. He deposed one Puran had got entrapped one of the police official of police post in Prevention of Corruption Act and case is pending but he can not say for surety if 30 the same man is Puran who is husband of the accused. He stated that said Puran is B.C. of PS Defence Colony. He stated that said Puran was arrested by them in case under Section 107/151 Cr.P.C.. He stated that personal search of accused was conducted by lady constable under the supervision of SI Ram Lal. He stated that one gazetted officer ACP Ishwar Singh was called in his presence and he can not say if personal search of accused was taken in presence of ACP or not. He stated so far he remember ACP left the spot prior to personal search of accused. He stated notice under Section 50 NDPS Act was given by him to accused and at that time ACP was not present at the spot.
14. PW-10 HC Dinesh has deposed that on 2.6.2003 two pulandas sealed with seal of GP and MP and FSL form having specimen seal with copy of seizure memo was deposited in malkhana and on 27.6.2003 the same were sent to FSL Malviya Nagar vide RC. He 31 proved copy of register no. 19 as Ex. PW 10/A and copy of RC as Ex. PW 10/B.
15. PW-11 SI Ram Lal has deposed that on 2.6.2003 he was present at police post Govind Puri and at about 5 PM Ct. Mahabir Singh came to him and handed over rukka, copy of FIR of this case for further investigation. He reached at the spot with Ct. Mahabir where SI Girjesh Singh handed over custody of accused and relevant papers to him. He prepared site plan Ex. PW 11/A; arrested accused vide memo Ex. PW 6/A and personal search memo Ex. PW 6/B was also prepared at the spot. He deposed that personal search articles with notice under Section 50 NDPS Act was sealed in pullanda with seal of RI. He deposed that he recorded statement of witnesses and sent accused for medical examination in custody of accused Alka. He deposed that during the course of investigation report under Section 57 NDPS Act was sent to ACP Kalkaji in writing, copy of which is Ex. PW 32 11/B. He deposed that case property was sent to FSL and its report is Ex. PW 11/C.
16. PW-12 SI V.N. Sammi produced diary register pertaining to 2003 with original report under Section 57 NDPS Act of this case. He proved copy of receiving as Ex. PW 12/A. In cross-examination he deposed that entry is not in his handwriting and time of receiving is not mentioned. He stated that he did not know who has written "seen ACP Kalkaji" on Ex. PW 12/A.
17. PW-13 Inspt. Satyabir Malik has deposed that on 23.7.2003 investigation of the case was handed over to him and he recorded statement of Alka and challan was prepared by SHO PS Kalkaji .
In cross-examination he deposed that he did not know if the case was transferred to him from local police because there were allegations of false 33 implication of the accused as well as her husband Puran Singh. He deposed that he did not find in investigation that husband of accused had lodged FIR in anti- corruption branch against HC Surender and other officials and that FIR 53/02 was registered.
18. PW-14 SI Ishwar Singh has deposed that on 3.6.2003 he was posted as SO to ACP and on that day SI Ram Lal sent a report under Section 57 NDPS Act of this case which was received by him and entry was made in the register maintained in the ACP office. He identified the handwriting and signatures of ACP on report Ex. PW 11/B.
19. After prosecution closed its evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein she stated that one HC Surender, beat officer along with Ct. Umesh, Ct. Ramesh started coming to her house levelling allegations that her 34 husband deals in drug and demanded sum of Rs. 30,000/- for which complaint was lodged in anti corruption on 6.12.2002 and HC Surender was caught red handed accepting bribe from her husband whereas Ct. Ramesh, Ct. Umesh and Ct. Sumer fled away from the spot; vehicle of her husband was seized by police and Mukesh was also arrested and during investigation her husband got the vehicle released. She deposed that after the arrest of HC Surender Singh, Incharge PP SI Girjesh Singh, SHO PS Kalkaji Mahipal and ACP Ishwar Singh were all three in PS Kalkaji and ever since putting pressure upon the applicant to withdraw that case in favour of police which he did not agree and so to put pressure on her and her husband, she was implicated in the present case.
In defence evidence, case FIR no.
53/2002 registered by Anti corruption branch was tendered as Ex. DA.
35
20. The perusal of the record shows that prosecution set up its case that on 2.6.2003 informer informed at police post Govindpuri at 12.10 noon to SI Girjesh that one woman who lives in Nehru Camp used to sell smack and on that day she will go with smack from her house via Anandmai Marg and Okhla service road round corner to deliver the same to one person. The said information was recorded as DD 12 Ex. PW 3/A and SI Gijresh also informed the SHO and asked the duty constable to send lady constable. SHO arrived in police post. Lady constable Alka came at police post and she along with Ct. Mahabir were briefed by SI Girjesh and a raiding party was constituted comprising of SHO, Lady Constable Alka, Ct. Mahabir Singh and they along with driver Govind Ram, operator Satpal and informer in government vehicle DL1C F 1221 at 12.35 noon proceeded to the spot and on the way requested three public persons at Okhla Service road near Aggarwal Sweets to join the raiding party after informing them 36 about the information out of whom two went without disclosing their name and address while third Radeshwar Singh (PW-8) agreed to join. That when at about 12.50 PM, they reached Okhla service road Pocket-A-14, where informer pointed out one lady wearing green colour suit salwar coming towards round corner of Okhla stating that she was the same lady going for supply of smack at which SI Girjesh, SHO, Ct. Mahabir Singh and L/Ct. Alka got down from the vehicle with Radeshwar Singh and that lady was stopped near the street light with the help of lady constable and on inquiry she disclosed her name as Rani and she was told about the information that she possesses smack and served notice under Section 50 NDPS Act Ex. PW 9/A to her informing her right of search in the presence of a Gazetted Officer or Magistrate to which she replied nothing at which SI Girjesh Singh called ACP through wireless, who came at the spot and informed Rani about the notice and search was conducted by L/Ct. Alka and when Alka checked 37 the handkerchief wrapped packet from her right hand, brown powder was found in a white polythene which was checked and smelled like smack and Rani also disclosed the same as smack. As per prosecution digital weighing machine was brought at the spot by Ct. Mahabir Singh and brown powder was found to be 100 grams out of which 5 grams was taken out as sample and remaining smack was kept in the same white polythene and sealed in pullanda, whereas sample was kept in plastic box and also sealed in pullanda with the seal of GP and CFSL form was also filled and sealed with seal of GP and seal after use was given to witness Radheshwar. The prosecution proved seizure memo as Ex. PW 1/A. The case FIR Ex. PW 7/A was got registered on the basis of rukka Ex. PW 9/C prepared by SI Girjesh and thereafter further investigation was conducted by SI Ramlal. The case property, CFSL form, copy of recovery memo was handed over to SHO who after putting his seal MPS deposited the same in malkhana.
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21. To prove the above set up case the prosecution examined PW-1 Ishwar Singh who had reached at the spot after giving of notice under Section 50 NDPS Act Ex. PW 9/A by SI Girjesh Singh. He had reached at the spot at about 1.15 PM. In his presence search of the accused was conducted and seizure was effected pursuant to search conducted by PW- 6 Ct. Alka. The seizure memo has been proved on record as Ex. PW 1/A. It is signed by PW-1 Ishwar Singh, PW-2 Inspt. Mahipal Singh, PW- 6 Lady Ct. Alka and PW-4 Ct. Mahabir Singh prepared by PW-9 Girjesh Singh. These witnesses have corroborated each others version and the Ld. Counsel for the accused has failed to point out any material contradiction in their statements. The above said police officials have categorically deposed that when accused did not reply to notice under Section 50 NDPS Act Ex. PW 9/A, ACP was informed who came at the spot at about 1.15 PM and he also explained to the accused her rights and on the asking of ACP, search was 39 conducted by lady Ct. Alka ( PW-6) and from the handkerchief a polythene containing brown powder was recovered which was weighed and found to be 100 grams out of which sample of 5 gram was taken and both the pullandas were sealed with seal of GP on which SHO also affixed his seal MPS and the same was seized vide seizure memo Ex. PW 1/A.
22. The Ld. Counsel for the accused has argued that public witness PW-8 Radhshwar to the seizure memo has turned hostile and in the absence of his testimony recovery can not be said to be proved. I find no merit in this contention. Merely turning of public witness to recovery hostile can not be said to be fatal to prosecution case and in the absence of the same, the only care and caution is to be taken by the court that the testimony of the police officials is to be scrutinized with more cautiously, carefully and even if there is minor discrepancy, then it has to be discarded. As stated 40 above, there is no material contradiction in the testimony of witnesses of raiding party and it is corroborative to each other and remained trust worthy despite cross- examination which proves the recovery and seizure from the accused.
23. Further the ground taken by the counsel for the accused is that husband of the accused had got arrested police officials in Anti Corruption Case vide FIR Ex. DA and to put pressure on the accused and her husband not to depose against police officials the accused was got implicated in the present case and her husband was booked under Section 107/151 Cr.P.C. Merely because husband of accused got implicated the police officials in Anti Corruption Act does not give rise to false implication of the accused. The testimony of police official PW-1 Ishwar Singh, PW-2 Inspt. Mahipal Singh, PW- 6 Lady Ct. Alka, PW-4 Ct. Mahabir Singh and PW-9 Girjesh Singh is consistent on each and every point from 41 the point of receiving the information till the recovery and its seizure. There is nothing on record to create suspicion on the proceedings and recovery in favour of the accused.
24. The perusal of the record shows that there was proper compliance of service of notice under Section 50 NDPS Act Ex. PW 9/A. The case property was duly deposited in malkhana in intact condition and the relevant entries have been proved on record as Ex. PW 10/A and the case property was sent to CFSL vide RC Ex. P 10/B in intact condition. It shows that there was proper compliance of Section 55 NDPS Act. Report under Section 57 NDPS Act sent by PW-11 SI Ram Lal has also been proved on record. PW-12 SI V.N. Sammi has proved on record daily diary register from Sub Division Kalkaji along with report under Section 57 NDPS Act. Copy of register was proved on record as Ex. PW 12/A. PW-14 SI Ishwar Singh deposed that he received the report, made 42 entry in register and he identified the signatures and handwriting of the then ACP Ishwar Singh on report. This proves on record compliance of Section 57 NDPS Act also.
25. In the light of above discussion, it is proved beyond reasonable doubt by the prosecution that accused was arrested pursuant to secret information Ex. DD -12 ( Ex. PW 3/A); notice under Section 50 NDPS Act Ex. PW 9/A was served upon the accused; in search of accused 100 grams smack was recovered and seized after taking out sample vide seizure memo Ex. PW 1/A; FSL form was filled at the spot and after conducting the seizure case property and FSL form was handed over to SHO, thereafter SI Girjesh Singh prepared rukka Ex. PW 9/C and FIR Ex. PW 7/A was registered. The prosecution has also proved beyond reasonable doubt on record that further investigation was conducted by SI Ram Lal who after collecting relevant papers of the case from SI 43 Girjesh prepared site plan Ex. PW 11/A wherein place of recovery is shown as point "A" and the accused was arrested vide personal search and arrest memo Ex. PW 6/B and Ex. PW 6/A. It is further proved by the prosecution beyond reasonable doubt that case property was deposited in malkhana in intact condition vide entry Ex. PW 10/A and sent to FSL vide RC Ex. PW 10/B and FSL report Ex. PW 11/C was received.
26. The next point for consideration is as per FSL report what is the exact quantity of the recovery. As per judgment in E. Micheal Raj Vs. Intelligence Officer as reported in 2008 III AD (Cr.)(SD) 53 the Hon'ble Supreme Court held that the actual contents by weighing of the narcotic drugs is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. The sample in this case found to contain diacetylmorphine 5.1% and thus in view of the judgment in E. Micheal Raj Vs. Intelligence Officer ( supra) the 44 actual recovery of diacetylmorphine comes to 5.1 grams which falls within the semi commercial quantity.
27. Consequently, in the light of above discussion, it is held that prosecution has successfully proved beyond any reasonable doubt that accused was arrested with 5.1 grams Heroin and thus committed an offence punishable under Section 21(b) of NDPS Act. The accused is, accordingly, convicted for offence under Section 21(b) NDPS Act.
Announced in open court. ( P.S.TEJI)
Today:- 27th January, 2009 SPECIAL JUDGE :NDPS
NEW DELHI.
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IN THE COURT OF SHRI P.S. TEJI, ADDITIONAL SESSIONS JUDGE, NEW DELHI S.C. No.94/2004 FIR No.466/2003 P.S. Kalkaji U/s 21/61/85 NDPS Act State Versus Rani ORDER ON SENTENCE Vide judgment dated 27.1.2009, Rani was convicted for offence under Section 21(b) of NDPS Act. 2 I have heard the ld. APP for the State as well as ld. Counsel for the convict Rani on the quantum of sentence. 3 The counsel for the convict has contended that the convict is not a previous offender and considering the small quantity recovered from the accused, a lenient view may be taken while awarding the sentence. On the other hand, ld. APP for the State has contended that convict has been found 46 in possession of contraband and in such circumstances maximum sentence may be awarded to the convict. 4 In the present case as per the percentage test actual recovery from the accused is 5.1 grams smack. The small quantity of smack prescribed in the schedule is 5 grams for which the maximum punishment provided under the Act is six months or fine of Rs.1,000/-. The accused has already remained in custody for 2 months and 9 days. Considering the facts and circumstances of the case and the fact that the convict is not a previous offender, no purpose will be served to keep the convict into custody. Therefore, I take lenient view and award the sentence already undergone and fine of Rs.1,000/- for offence under Section 21(b) of NDPS Act. 5 Copy of the judgment and order on sentence be supplied free of cost to the convict.
6 File be consigned to record room.
Announced in the open Court (P.S. TEJI)
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on 28.1.2009 Special Judge (NDPS)
New Delhi