Delhi District Court
State vs 1. Rajender Singh S/O Kalu Ram on 26 April, 2013
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE (NORTH
EAST) : KARKARDOOMA COURTS, DELHI
SC No. 74/2007
FIR No. 17/2007
PS Narcotics Branch
Under Section 21/29 N.D.P.S. Act
Case ID 02402R0442582007
State Versus 1. Rajender Singh S/o Kalu Ram
R/o Ward No. 1, Ambedkar Nagar,
Bisarat Ganj, DistrictBareily, U.P.
2. Shamim Ahmed S/o Late Sadiq Ahmed
R/o Purana Bazar, Ward No. 8, Bisarat
Ganj, DistrictBareily, U.P.
3. Anjali W/o Navin Gehlot
R/o H. No. 102, VillageDabri, Delhi.
Date of Institution 26.07.2007
Date of hearing Arguments 17.04.2013
Date of Judgment 26.04.2013
J U D G M E N T
1. In the present case, the accused Rajender is facing trial for the offence punishable U/s 21 (b) of the Narcotic Drugs and Psychotropic FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 1/37 Substances Act, 1985, on the allegations that on 17.02.2007, at about 2.00 p.m., at Tpoint, near Akshar Dham Mandir Gate, Delhi, he was found in possession of 2 kilograms 'Heroin', containing 0.08% of Diacetylmorphine, 18.73% of Phenobarbital and 1.1% of Diazepam, a contraband, without any license or permit. The accused Shamim Ahmed and Anjali are facing trial for the offences punishable U/s 29 of the NDPS Act, 1985, on the allegations that on 17.02.2007 at about 2.00 p.m., both of them abetted/entered into a criminal conspiracy, with coaccused Rajender, for the commission of the offence U/s 21
(b) of the NDPS Act.
2. It has been stated in the chargesheet that on 17.02.2007, a secret informer came to ASI Paramjeet Singh at PS Narcotics Branch and informed him that two boys, namely, Shamim Ahmed and Rajender Singh, R/o Bisarat Ganj, U.P. used to indulge in supply of Smack in Delhi, at the instance of one lady Anjali. He also disclosed that the accused persons shall come to the road near Akshardham Temple between 1.30 p.m. to 2.30 p.m. to supply Smack in heavy quantity to someone and if a raid is conducted, they can be apprehended with Smack. Thereafter, ASI Paramjeet Singh produced the secret informer before the SHO, Inspector Kharak Singh, who also made enquiries FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 2/37 from the secret informer and after his satisfaction, informed DCP, N&CP Sh. A.S. Cheema, who directed him to conduct an immediate raid. Thereafter, ASI Paramjeet Singh recorded DD No. 10A regarding the secret information at about 1.00 p.m. and constituted a raiding team and went to the spot near Akshardham Temple Gate, at about 1.30 p.m., in official vehicle bearing registration No. DL 1CH 0617. The members of the police team took positions near the spot and at about 1.50 p.m., the accused Shamim Ahmed and Rajender came to the spot, from the side of Akshardham flyover and stood near Akshardham temple gate. At that time, the accused Shamim Ahmed was carrying a blue colour bag in his hand. In the meantime, third accused Anjali came from the side of Akshardham temple gate and started talking with the aforesaid two accused persons. The secret informer identified all the accused persons and left the spot. Thereafter, accused Shamim Ahmed handed over the bag to accused Rajender Singh and when the accused persons started to leave the spot, they were apprehended by the raiding team. Thereafter, the notices U/s 50 NDPS Act were given to the accused persons and they were also explained about their legal rights. The accused persons refused to get their personal searches conducted in the presence of a Gazetted FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 3/37 Officer or a Magistrate and thereafter, their refusals were also recorded by ASI Paramjeet Singh. ASI Paramjeet Singh took the blue colour bag from the hand of accused Rajender Singh and on checking the same, it was found to contain one transparent polythene, containing Heroin, alongwith another transparent polythene, containing Heroinlike substance. The bag containing Heroin was given MarkA, whereas, the other bag was given MarkB. On weighing with the electronic weighing machine, both the bags were found to contain 1 kilogram substance each. Thereafter, ASI Paramjeet Singh prepared samples from both the bags and were given MarkA1, A2, B1 and B2. Thereafter, he prepared the FSL form and seized all the pulandas and conducted the personal searches of all the accused persons. Thereafter, ASI Paramjeet Singh prepared the rukka and sent the same, alongwith all the seized pulandas and FSL form and copy of the seizure memo, to the police station for registration of FIR. Thereafter, case FIR No. 17/2007 was registered at PSNarcotics Branch U/s 21/29 NDPS Act and further investigation was marked to SI Rajbir Singh. Thereafter, SI Rajbir Singh went to the spot and prepared the site plan at the instance of ASI Paramjeet Singh and interrogated the accused persons and arrested them, in the present FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 4/37 case.
3. During investigations, the IO also recorded the statements of the witnesses and the accused were produced before Inspector Kharak Singh, SHO and articles of their personal search were deposited at the Malkhana. During investigations, the samples MarkA1 and A2 were also sent to FSL, Rohini for chemical analysis and after completion of investigations, the chargesheet was filed in the Court and the accused were sent up for trial.
4. Vide order dated 31.08.2007, the charge for the offence punishable u/s. 21 (b) of the NDPS Act, was framed against the accused Rajender Singh, whereas, the charge for the offence punishable U/s 29 of the NDPS Act was framed against the accused Shamim Ahmed and Anjali, by the Ld. Predecessor of this Court, to which, all the accused persons pleaded not guilty and claimed trial.
5. In order to prove the charges against the accused persons, the prosecution has examined the following witnesses:
(i) PW1, Lady HC Shiksha, who was a member of the raiding party, headed by ASI Paramjeet Singh, which recovered the contraband from the accused Rajender Singh.,
(ii) PW2, ASI Ghasi Ram, the Duty Officer, who received the FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 5/37 rukka, sent by ASI Paramjeet Singh, through HC Harcharan Singh and got recorded FIR No. 17/2007 (Ex.PW2/C) and made endorsement on the rukka. He also recorded Kayami DD no. 14 A (Ex.PW2/A) and Bandi DD no. 16A (Ex.PW2/B), regarding registration of the case. He also recorded DD No. 15A (Ex.PW2/D) regarding deposition of case property by Inspector Kharak Singh at the Malkhana and also recorded DD No. 18A (Ex.PW2/E) regarding return of SI Rajbir Singh to the police station and deposition of articles of personal search of the accused at the Malkhana. He also recorded DD No. 11A regarding departure of the raiding team in official vehicle No. DL 1CH 0617 (Ex.PW2/F). He has also proved the carbon copy of DD No. 10A as Ex.PW2/G, which was recorded by ASI Paramjeet Singh, regarding the secret information.
(iii) PW3, HC Karunakaran Nair, Reader to ACP, Narcotics Branch, who received true copy of DD No. 10A (Ex.PW3/B) and two Special Reports U/s 57 N.D.P.S. Act, Ex.PW3/D & Ex.PW3/F in the office of D.C.P. (N&CP).
(iv) PW4, HC Jagdish Prasad, the MHCM, who received the FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 6/37 case property and the samples alongwith the documents, from Inspector Kharak Singh, SHO and deposited the same at the Malkhana. He also received the articles of the personal search of the accused persons from SI Rajbir Singh. This witness has proved the entries made by him in register no. 19.
(v) PW 5, SI Rajbir Singh. He is the second Investigating Officer of this case. He arrested the accused persons and conducted their personal searches and recorded their disclosure statements and prepared the site plan at the instance of ASI Paramjeet Singh. He also deposited the articles of personal search of the accused persons at the Malkhana. He has also prepared the report U/s 57 N.D.P.S. Act regarding the arrest of the accused persons. He also sent the sample to FSL Rohini through HC Jaibeer, on the directions of the SHO and received the FSL result from the MHCM and filed the same in the Court.,
(vi) PW6, HC Ishwar Singh, the 2nd MHCM. This witness has sent the sample parcels to FSL and also received the FSL result and handed over the same to the IO.
(vii) PW7, Inspector Kharak Singh, SHO, PSNarcotics FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 7/37 Branch, who verified the secret information from the secret informer and forwarded the information to the DCP, N&CP, Sh. A.S. Cheema and directed ASI Paramjeet Singh to conduct the raid. He has also received the case property and the samples, alongwith the documents, sent by ASI Paramjeet Singh and affixed his own seal of '1SHONBRDELHI', the case particulars and his signatures on the sealed pulandas and the documents and handed over the same to MHCM HC Jagdish Prasad and lodged DD No. 15A in this regard. He has also forwarded the two Special Reports U/s 57 N.D.P.S. Act, Ex.PW3/D and Ex.PW3/F, to the DCP concerned. He also directed to send the samples Mark A1 and B1 to the FSL for chemical analysis.
(viii) PW 8, HC Jaibeer Singh, who took the samples Mark A1 & B1, alongwith FSL form and other documents to FSL Rohini, for chemical examination, vide RC No. 194/21. After deposition of the sample at FSL, Rohini, he handed over the receipt to the MHCM,
(ix) PW9, ASI Paramjeet Singh, the complainant and first FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 8/37 Investigating Officer of the present case.
(x) PW10, ASI Harcharan Singh, the second recovery witness, who was also a member of the raiding party, headed by ASI Paramjeet Singh, which recovered the contraband from the accused Rajender Singh.
6. After completion of the prosecution evidence, the statements of all the three accused persons were recorded U/s 313 Cr.P.C., on 27.08.2012, wherein, they have denied all the incriminating evidence against them and have deposed that they are innocent and have been falsely implicated in this case. Accused Anjali has also stated that she was having a property dispute with her aunt Smt. Sheela and her aunt was acquainted with one Smt. Pooja, who took her to Moradabad for her treatment. She has further stated that the said Smt. Pooja was having links with the police officials of the Narcotics Branch and at the instance of her aunt Smt. Sheela, the said Smt. Pooja, falsely implicated her in this case. The accused Rajender Singh and Shamim Ahmed have not led any defence evidence in their defence, despite opportunity. However, accused Anjali has examined two witnesses in her defence.
7. After completion of trial, final arguments were addressed by Sh. FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 9/37 Sanjay Kumar, Ld. Additional PP for the State, Sh. Rishi Pal Singh, Advocate, for accused Anjali and Sh. G.S. Singh, Advocate, for accused Rajender Singh and Shamim Ahmed.
8. The Ld. Addl. PP for the state has argued that all the mandatory provisions of the N.D.P.S. Act have been duly followed by the investigating officers. He has also argued that the provisions of Section 50 NDPS Act are not applicable to the present case as the Heroin was recovered from the possession of the accused Rajender Singh in a bag, which the accused Shamim Ahmed handed over to him at the spot. He has further argued that the prosecution witnesses have duly proved the recovery of 2 kilograms of 'Heroin', containing 0.08% diactylmorphine, 18.73% phenobarbital and 1.1% diazapam, from the possession of the accused Rajender Singh and they have also proved that accused Shamim Ahmed and Anjali have connived together and have entered into a conspiracy with accused Rajender Singh and have also abetted the commission of offence U/s 21 (b) of the NDPS Act by him. Therefore, the accused Rajender Singh should be convicted for the offence punishable U/s 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the accused Shamim Ahmed and Anjali be convicted for the offence punishable U/s 29 of the said FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 10/37 Act.
9. On the other hand, the Ld. Defence Counsel, Sh. Rishi Pal Singh, Advocate, for accused Anjali has argued that the accused Anjali has been falsely implicated in this case and she was not even present at the spot, at the time of the alleged recovery. He has also argued that the accused Anjali was apprehended from Moradabad, U.P. and falsely implicated in the present case. He has also argued that the movement of the accused Anjali has been proved on record by the call details of her mobile phone, by DW2 R.K. Singh, Nodal Officer from Bharti Airtel Ltd. and as per the call details the accused Anjali was at Moradabad, U.P. at 1.11.25 p.m. and she was at Garh Mukteshwar, U.P. at 4.21.43 p.m. He has also argued that there are several material contradictions in the deposition of the prosecution witnesses, including the members of the raiding police party, which makes their testimonies doubtful. He has further argued that there is no evidence of any abetment or conspiracy against her and therefore, the accused Anjali be acquitted for the offence punishable U/s 29 of the NDPS Act.
10. The Ld. Defence Counsel for accused Rajender Singh and Shamim Ahmed has argued that the provisions of Section 50 NDPS Act have not been complied by the investigating officers and all the FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 11/37 documents have been forged and fabricated by them to falsely implicate the accused persons in the present case. He has also argued that no public witness has joined the investigations, despite of the fact that the alleged recoveries were made at a very busy place like Akshardham Temple. He has also argued that alleged recovery was effected on 17.02.2007 and the alleged samples were sent to FSL on 09.03.2007, and therefore, there is a delay of about 20 days in sending the samples to the FSL and the same violates the guidelines issued by the NCB. He has further argued that there is no evidence on record to prove any conspiracy or abetment of crime by accused Shamim Ahmed.
11. He has further argued that there are several material contradictions in the deposition of the prosecution witnesses and the discrepancies on record, which makes the entire prosecution case doubtful and therefore, the accused Rajender Singh be acquitted of the offence punishable U/s 21 (b) of the N.D.P.S. Act, 1985 and the accused Shamim Ahmed be also acquitted for the offence punishable U/s 29 of the said Act.
12. I have carefully gone through the case file & I have given my considered thoughts to the arguments addressed by the Ld. Defence FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 12/37 Counsels and the Ld. Addl. PP for the State. Perusal of the record shows that PW9, ASI Paramjeet Singh has deposed that on 17.02.2007, he was posted at Narcotics Branch, Shakarpur and at about 12.30 p.m., a secret informer came to him at his office, and informed him about the accused persons and disclosed that the accused persons shall come near Akshardham Temple gate, between 1.30 p.m. to 2.30 p.m., to supply 'Heroin' to someone. Thereafter, he produced the secret informer before Inspector Kharak Singh, who also made enquiries from the secret informer and passed the information to the DCP concerned, who instructed Inspector Kharak Singh to conduct the raid. Thereafter, he recorded DD No. 10 at 1.00 p.m. DD No. 10 has been proved as Ex.PW3/B. A copy of DD No. 10, Ex.PW3/B was duly forwarded to the senior officers. PW3 HC Karunakaran Nair, Reader to ACP has proved the receipt of DD No. 10A (Ex.PW3/B), on 17.02.2007 itself, vide entry No. 411 dated 17.02.2007. The copy of diary register is also proved on record as Ex.PW3/A. All these proceedings & documents have established that the raid was conducted at a public place & therefore, the provisions of Section 42 of the NDPS Act were not applicable to the present case and Section 43 of the NDPS Act applies to the present case, which has been duly complied FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 13/37 by the police officials.
13. PW9 ASI Paramjeet Singh has further deposed that, as per the directions of Inspector Kharak Singh (PW7), he constituted the raiding party, consisting of himself, HC Jagat, HC Mukesh, HC Harcharan, WHC Shiksha and Ct. Sanjeev and after taking his IO bag, field testing kit and electronic weighing machine, they left for the spot alongwith the secret informer, in an official vehicle, bearing registration No. DL 1CH 0617, being driven by Ct. Satbir and he made departure entry in this regard, at about 1.15 P.M. vide DD No. 11. The copy of DD No. 11 is proved on record as Ex.PW2/F. He has further deposed that several public persons were asked to join the investigations, on the way, but nobody obliged and after reaching the spot he again briefed the members of the raiding party and the members of the raiding party took their respective positions near the spot. At about 1.50 P.M., the accused Shamim Ahmed and Rajender Singh were seen coming from the side of Akshardham Flyover on foot and were identified by the secret informer. At that time, accused Shamim Ahmed was having a blue colour bag in his hand and in the meantime, accused Anjali was also seen coming from the side of Akshardham Temple and she came to the spot and started talking with accused Rajender Singh and FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 14/37 Shamim Ahmed. The secret informer identified the accused Anjali and thereafter, he left the spot. This witness has further deposed that the accused Shamim Ahmed handed over the blue colour bag to accused Rajender Singh and when they started moving, they were apprehended by the raiding team. Thereafter, the introduction of the members of the raiding party was given to the accused persons and the accused persons were apprised about the secret information and were also apprised about their legal rights and it was also told to them that, if they so desire, their personal search can be conducted in the presence of a Gazetted Officer or a Magistrate. The accused were also offered to take the search of the official vehicle and the members of the raiding party, prior to their personal search. But, all the accused persons refused all the offers. Thereafter, the notice U/s 50 of The N.D.P.S. Act was served upon the accused persons and their refusals were also recorded. ASI Paramjeet Singh (PW9) has proved the original notices U/s 50 of The N.D.P.S. Act, as Ex.PW1/A, Ex.PW1/B and Ex.PW1/C & the refusals of the accused Rajender Singh, Shamim Ahmed and Anjali as Ex.PW1/D, Ex.PW1/E and Ex.PW1/F, respectively.
14. PW9 ASI Paramjeet Singh has further deposed that during these FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 15/37 proceedings he again requested 57 public persons, to become the witness to the proceedings, but, they all refused to join the proceedings also refused to disclose their names and addresses. He has further deposed that he took the blue colour polythene bag from the hand of the accused Rajender Singh and on checking, it was found to contain two transparent polythene bags containing black colour powder. He has further deposed that the contents of both the packets were tested with the field testing kit, on which, the contents of one packet were found to contain 'Heroin'. This witness has further deposed that the recovered packets were weighed with the help of the electronic weighing scale and both packets were found to contain 2 kilograms substance, each. Thereafter, he took out two samples of 5 grams each from both the packets and prepared the samples, which were given MarkA1, A2 & B1, B2. The remaining contents of both the packets were kept in separate cloth pulanda and was given 'Mark A'. Thereafter he filled up the FSL form and all the parcels and FSL form were affixed with his seal of "PS". This witness has further stated that the seal was handed over to WHC Shiksha, after use and all the parcels were seized by him vide seizure memo Ex.PW1/G. He has further stated that he also conducted the search of accused Shamim Ahmed FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 16/37 and also got the search of accused Anjali conducted through WHC Shiksha but nothing incriminating was recovered in their search. This witness has further deposed that he got prepared the rukka Ex.PW9/A through HC Mukesh, on his dictation and handed over the same to HC Harcharan, alongwith five sealed parcels, FSL Form and the carbon copy of the seizure memo, with the directions to produce the rukka before the Duty Officer and to produce the remaining articles before the SHO.
15. PW10 HC Harcharan Singh, who remained with ASI Paramjeet Singh, as a member of the raiding party, has also deposed in a similar manner and has corroborated the deposition of PW9 ASI Paramjeet Singh, on all the material points. He has further deposed that he handed over the rukka to the Duty Officer and remaining articles to the SHO. He has further deposed that the SHO, PW7 Inspector Kharak Singh, had affixed his seal of "1SHONBRDELHI" on all the pulandas, FSL Form and also put the FIR number on all these articles and the documents and called the MHCM to his room and handed over the aforesaid articles to him. The testimony of PW10 ASI Harcharan Singh finds corroboration from the testimony of PW4 HC Jagdish Prasad, who has also deposed that on 17.02.2007, Inspector Kharak FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 17/37 Singh, SHO, called him to his office and deposited five parcels Mark A, A1, A2, B1 & B2, form FSL, all duly sealed with the seal of "PS" and "1SHONBRDELHI" with him and he made relevant entry in register No. 19 in this regard. He has proved the entry of register no. 19 as Ex.PW4/A.
16. PW2 ASI Ghasi Ram, the Duty Officer, has also deposed that on 17.02.2007, HC Charan Singh handed over a rukka to him at 6.10 p.m., sent by ASI Paramjeet Singh, on the basis of which, he made Kayami DD No. 14 in the Rojnamcha register and thereafter, he registered case FIR No. 17/2007. This witness has proved DD No. 14 as Ex.PW2/A. Copy of FIR has been proved on record as Ex.PW2/C. He has also deposed that he also recorded DD No. 16A regarding the closure of the FIR. The same has been proved on record as Ex.PW2/B.
17. PW9 ASI Paramjeet Singh has also deposed that at about 6.20 p.m., SI Rajbir Singh reached the spot in the same Govt. vehicle and he handed over all the documents to him, as further investigations of the present case was marked to him. He has further stated that SI Rajbir Singh, prepared the site plan Ex.PW5/A, at his instance and recorded the statement of WHC Shiksha. He has further deposed that FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 18/37 SI Rajbir Singh arrested the accused persons and conducted the personal search of the accused Rajender Singh and Shamim Ahmed and the personal search of accused Anjali was got conducted through WHC Shiksha. He has further deposed that the carbon copies of the notices U/s 50 of N.D.P.S. Act were recovered in the personal search of the accused persons, alongwith various other articles.
18. PW9 ASI Paramjeet Singh has further deposed that the accused persons were produced before Inspector Kharak Singh and the articles of their personal search were deposited at the Malkhana. He has further stated that on 18.02.2007, he prepared the report U/s 57 of N.D.P.S. Act regarding the recovery of contraband from the accused Rajender Singh and the same was forwarded to the senior officers by the SHO, Narcotics Branch. The said report has been proved on record as Ex.PW3/D. PW3 HC Karunakaran Nair, the Reader to the ACP, Narcotics Branch has reiterated the fact, about receiving of the report U/s 57 of N.D.P.S. Act and has deposed in the Court that on 18.02.2007, the Special Report U/s 57 N.D.P.S. Act was received in the office of the DCP, N&CP vide dairy No. 413. The copy of the diary register has been proved on record as Ex.PW3/C. The original report U/s 57 of N.D.P.S. Act regarding the arrest of the accused has FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 19/37 been proved on record as Ex.PW3/F. The said report was also received in the office of the DCP, N&CP on 18.02.2007 vide diary No.
414. The diary register has been proved on record as Ex.PW3/E.
19. PW5 SI Rajbir Singh, the second IO of the present case, has deposed that on 09.03.2007, as per the directions of SHO, the sample parcels and form FSL were sent to FSL, Rohini, through HC Jaibeer. The MHC(M) (PW6) HC Ishwar Singh has also deposed that the samples Mark A1 & B1 were sent to FSL, Rohini through HC Jaibeer vide RC No. 194/21. The photocopy of the RC No. 194/21, has been proved on record as Ex.PW6/A. PW8 HC Jaibeer has also deposed that on 09.03.2007, MHC(M) HC Ishwar Singh handed over samples 'MarkA1' & 'MarkB1', alongwith FSL form, for depositing the same at FSL, Rohini vide RC194/21. He has further stated that after depositing of articles at FSL, Rohini, he obtained the acknowledgment receipt & handed over the same to the MHC(M). The acknowledgment receipt has been proved on record as Ex.PW8/A. He has categorically stated that the samples were not tempered with, till the time, it remained in his possession.
20. PW7 Inspector Kharak Singh has also deposed that on 17.02.2007, he was posted as SHO, PSNarcotics Branch and at about FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 20/37 12.45 p.m., ASI Paramjeet Singh came to his office with a secret informer & told him about the secret information and after his satisfaction, he informed the D.C.P., N&CP Sh. A.S. Cheema, on phone, who directed him to conduct the raid. He has further stated that on his directions, ASI Paramjeet Singh reduced the secret information into writing, vide DD No. 10A & produced a copy of the same before him & the same was forwarded to the senior officers. DD No. 10A has been duly proved on record as Ex.PW2/G. Receipt of DD No. 10A, at the office of the ACP concerned has been duly proved by PW3 HC Karunakaran Nair.
21. PW7 Inspector Kharak Singh has further deposed that on the same day, HC Harcharan Singh came to his office at about 6.12 p.m. and produced five sealed pulandas Mark A, A1, B1 & B2, alongwith form FSL and the carbon copy of the seizure memo. He has further deposed that all the parcels and documents were bearing the seal of "PS" and he affixed his own seal of "1SHONBRDELHI" and mentioned the FIR number on the parcels and the documents and also put his signatures and called the MHC(M), HC Jagdish Prasad with register no. 19 in his office and deposited all the documents and parcels with him and the MHC(M) made entry, in register no. 19, in FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 21/37 this regard. He has further stated that he lodged DD No. 15A in this regard. He has proved the DD no. 15A as Ex.PW2/D. He has further stated that on the next day, the IOs produced their Special Reports U/s 57 NDPS Act, which were forwarded by him to the senior officers. He has further deposed that on 09.03.2007, the sample parcels MarkA1 & B1, were sent to FSL, Rohini, by MHC(M) HC Ishwar Singh, through HC Jaibeer, vide RC No. 194/21, as per his directions.
22. Perusal of the record further shows that the members of the raiding party and the recovery witnesses i.e. PW1 WHC Shiksha, PW10 ASI Harcharan Singh, the first Investigating Officer PW9 SI Paramjeet Singh, the second Investigating Officer PW5 SI Rajbir Singh, PW7 Inspector Kharak Singh, SHO, PSNarcotics Branch, PW2 ASI Ghasi Ram, the Duty Officer and MHC(M) HC Jagdish Prasad (PW4) & HC Ishwar Singh (PW6), have all corroborated the testimonies of each other on all the material points. Perusal of the testimonies of all the aforesaid witnesses indicates that the various provisions of the N.D.P.S. Act, 1985, have been duly complied by the Investigating Officers. All these witnesses have been crossexamined by the Ld. Defence Counsels at length, but, no material discrepancy has come on record, to discard their testimonies or to make the FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 22/37 prosecution case doubtful.
23. Furthermore, the samples 'MarkA1' & 'MarkB1', which were sent to FSL, Rohini, for Chemical analysis were duly chemically analysed by Dr. Madhulika Sharma, Assistant Director (Chemistry), Forensic Science Laboratory, Rohini, Delhi. She has submitted her report, bearing No. FSL.2007/C0811 dated 12.07.2007, which is Ex.PW5/C. This report is admissible in evidence, by virtue of section 293 of The Code of Criminal Procedure, 1973. As per report, Ex.PW5/C, the sample 'MarkA1' was found to contain, 'Diacetylmorphine, Phenobarbital and Diazepam - 0.08%, 18.73% & 1.1%, respectively. But sample B1 was found to contain 'Paracetamol' only, which does not come under the NDPS Act.
24. The main contention of the Ld. Defence Counsel for accused Rajender Singh and Shamim Ahmed has remained that the provisions of Section 50 NDPS Act were not complied properly and the accused Rajender Singh & Shamim Ahmed were not produced before any Gazetted Officer or a Magistrate before conducting their personal search. I do not find any merit in this contention of the Ld. defence counsel as the recovery of Heroin (contraband) was effected from the possession of accused Rajender Singh, in a bag, which he was carrying FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 23/37 at the time of his apprehending, by the police officials. This bag was handed over to him by the coaccused Shamim Ahmed, on the spot. No recovery of any contraband was effected in the personal search of any accused. It is a well settled law that the provisions of Section 50 NDPS Act are applicable only in a case of personal search of the accused and the same are not applicable when the search is to be made in respect of some baggage like a bag, article, vehicle or container, etc., which the accused was carrying at the time of his apprehension by the police party. [See "State of Himachal Pradesh Vs. Pawan Kumar (2005) 4 S.C.C. 350; State of Haryana Vs. Ranbir @ Rana, A.I.R. 2006 S.C. 1796.]. Even in the present case, the alleged recovery was effected from the possession of the accused Rajender Singh from the bag, which was handed over to him by coaccused Shamim Ahmed. Therefore, the provisions of Section 50 NDPS Act are not applicable to the present case.
25. An objection has been raised by the Ld. Defence Counsels that no public witness has joined the investigations despite of the fact that the raiding team remained at the spot for several hours & the raid was conducted in broad day light, at a very congested & busy place like FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 24/37 Akshardham temple. I do not find any merit, even in this argument. It has been held by the Hon'ble High Court of Delhi, in case titled as 'Rattan @ Ratan Singh Vs. State (Govt. of NCT of Delhi)', reported as 2013 II AD (Delhi) 288, as under:
"SI Balbir Singh (IO) deposed about three attempts being made by him to join independent witnesses. First at Chirag Delhi bus stand, then at Kalkaji Mandir and ultimately after apprehension of the Appellants and before making their searches. PW4 and PW6 also deposed about the attempts made by the IO to join independent witnesses. Thus, it cannot be said that no attempt was made by the IO to join any independent witness before conducting the search of the Appellants. I am in agreement with the learned APP for the State that public witnesses are reluctant to come forward to join police investigation in order to avoid their repeated visits to the Police Station and Court. In Ajmer Singh v. State of Haryana MANU/SC/0111/2010 : 2010 (2) SCR 785, the Supreme Court held that it is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witness is not absolute. If the police officer is unable to join any public witnesses after genuine efforts, the recovery made by the police officer would not be vitiated. The Supreme Court held that in such circumstances, the Court will have to appreciate the relevant evidence to determine whether the evidence of a police officer is FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 25/37 believable so as to place implicit reliance thereon. A learned Single Judge of this Court in Union of India v. Victor Nnamdi Okpo, Criminal Appeal No. 617/2004 decided on 16.09.2010 in a case under the NDPS Act echoed the sentiments that public is averse to become a witness because of the attitude of the court in summoning the witnesses time and again and sending them back unexamined on the ground that either the counsel of the accused was not available or the accused was not there."
26. Furthermore, in Appa bhai & Anr. Vs. State of Gujarat MANU/SC/0028/1988 : 1988(Supp.) SCC 241, the Supreme Court observed that the prosecution case cannot be thrown out or doubted on the ground that independent witnesses have not been joined. It was observed that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but is is there everywhere. The Court observed as under:
11.... The court, therefore, instead of a doubting the prosecution case for want of independent witness must consider the broad spectrum of FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 26/37 the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused...."
27. Even in the present case, PW9 SI Paramjeet Singh, PW10 ASI Harcharan Singh & PW1 WHC Shiksha, have all deposed that efforts/requests were made to the pubic persons, near red light Shakarpur, and at the spot near Akshardham temple, to join the public persons as a witness, to the proceedings/investigations, but they all refused and left the spot, without disclosing their names and addresses.
28. The 3rd contention of the Ld. Defence Counsel for accused Rajender Singh and Shamim Ahmed, has remained that there is an unexplained delay of about 20 days in depositing the samples at FSL, Rohini and the same violates the guidelines of the NCB and is fatal to the prosecution case.
29. In view of the material documentary evidence on record, I do not find any merit, even in this argument of the Ld. Defence Counsel. The prosecution witnesses have deposed in a consistent and trustworthy manner, regarding the recovery of the contraband from the possession of the accused Rajender Singh, its seizure by ASI Paramjeet Singh, preparation of the samples and deposition of the case property & the samples at the Malkhana and sending of the samples to FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 27/37 the FSL, Rohini, for chemical analysis and thereafter, receiving of the remnants of the samples alongwith the FSL Report, at the Malkhana.
30. Furthermore, it has been held by the Hon'ble High Court of Delhi in the case titled as Bilal Ahmed Vs. State, reported as 2011(1)JCC 27, 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 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 PW 9 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 the 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 FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 28/37 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 (PW.1), the I.O., seized the articles on 15/6/1995. The search memo is Ex. P.4 and the specimen impression of the seal Ex. P.5. PW.1 deposited the seized articles and sample with Bhanwarlal (PW.8) who was the Malkhana InCharge in the Malkhana register in Ex. P.15A. PW.8 handed the material to Surendera Singh (PW.5) for depositing the sample in FSL. 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 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.
11. In Hardip Singh v. State of Punjab MANU/SC/7956/2008 : 2008 (8) SCC 557 it was held:
FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 29/37
16. So far as the question of delay in sending the samples of opium to the Forensic Science Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of the Appellant stands proved and established by cogent and reliable evidence led in the trial. PW 5 has categorically stated and asserted about the recovery of opium from the possession of the Appellant, which fact is also corroborated by a higher officer, namely, SS Mann, DSP who was also examined at length during the trial.
The said recovery was effected in the presence of the said SS Mann, DSP, as senior police officer, who also put his seal on the said parcels of opium.
17. The then Station House Officer, Inspector Baldev Singh, who was examined as PW 1, was posted at Police Station Ajnala on the date of occurrence. He received the said samples of opium along with case material, being produced before him by PW 5. It has come on evidence that Inspector Baldev Singh kept the entire case property with him till it was deposited in the office of Chemical Examiner, Amritsar on 30.9.1997 through ASI Surinder Singh, (PW3). It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the Appellant. In that FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 30/37 view of the matter, delay of about 40 days in sending the samples did not and could not have caused any prejudice to the Appellant. The aforesaid contention, therefore, also stands rejected."
31. In the present case also, IO SI Paramjeet Singh has categorically stated that after recovery of the contraband, he prepared the samples & sealed the samples with his seal of 'PS'. He has categorically stated that all the sample parcels Mark A1, A2, B1, B2 & the case property in pulanda MarkA were taken into possession vide seizure memo Ex.PW1/G & thereafter, he prepared the rukka Ex.PW9/A & handed over the rukka, five sealed parcels, form FSL & carbon copy of the seizure memo to HC Harcharan, with the direction to hand over the rukka to the duty officer & the other articles to the SHO. PW10 HC Harcharan (now ASI) has also categorically stated that he took the rukka alongwith the samples & the case property and documents to the police station and handed over the rukka to the duty officer & the other articles to SHO, Inspector Kharak Singh at PSNarcotics Branch. PW7 Inspector Kharak Singh has also stated that he put his initials and particulars of the case on the documents and the sealed parcels and also affixed his official seal of '1SHONBRDELHI' on the parcels & the FSL form and handed over the parcels and the documents to the FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 31/37 MHC(M). PW4 HC Jagdish Prasad, MHC(M) has also categorically stated that the samples Mark A1, A2, B1, & B2, alongwith case property in parcel MarkA, were all duly sealed with the seal of PS & 1SHONBRDELHI and the same were deposited by Inspector Kharak Singh at the Malkhana & he made entry in register no. 19 in this regard. PW8 HC Jaibeer Singh, who took the sample parcel MarkA1 & Mark B1 for deposition at FSL, Rohini, on 09.03.2007 has also stated that the seals of the pulandas were intact and the samples were not tempered by anybody, till the time, it remained in his custody. FSL Report dated 12.07.2007, also mentions that the sample seals were intact and were tallied with the specimen seal impression forwarded alongwith forwarding letter (FSL form). In view of the depositions of these witnesses and the documentary evidence, on record, it cannot be said that the samples were tempered. Therefore, the delay in sending the samples to the FSL, Rohini, for chemical analysis is not fatal to the prosecution.
32. The next contention of the Ld. Defence Counsel has remained that there are several contradictions in the depositions of the witnesses about the recovery of the alleged contraband from the possession of the accused and sealing of the case property by the IO. But, in the FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 32/37 concerned opinion of this Court, the minor discrepancies in the depositions of the witnesses are not fatal to the present case, as some minor discrepancies are bound to creep in the testimonies of the witnesses when the witnesses depose before the Court in a natural manner and after a lapse of long time.
33. Perusal of the record further shows that PW9 SI Paramjeet Singh, PW10 ASI Harcharan Singh and PW1 WHC Shiksha have all deposed that the accused Rajender Singh and Shamim Ahmed came to the spot together and at that time, accused Shamim Ahmed was carrying a blue colour polythene bag with him. Both these accused were duly identified by the secret informer by their names. In the meantime, the accused Anjali also came to the spot & she was also identified by the secret informer by her name & thereafter, the secret informer left the spot. All these witnesses have stated that after talking with each other, the accused Shamim Ahmed handed over his bag to the accused Rajender Singh. They have all deposed that when accused persons started moving from the spot, after delivery of bag to the accused Rajender Singh, by accused Shamim Ahmed, they were all apprehended by the police party. All these circumstances clearly indicate that the accused Shamim Ahmed & Rajender Singh came to FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 33/37 the spot together & accused Shamim Ahmed supplied Heroin to accused Rajender Singh, which was duly recovered by the police team, from his possession. But, the accused Anjali had not come to the spot with them & it is alleged by the prosecution witnesses, that accused Anjali came to the spot, after a few minutes of the arrival of accused Shamim Ahmed & Rajender Singh. The presence of accused Anjali, at the spot, is falsified by the deposition of the defence witnesses. DW1 Smt. Saroj, the landlady of accused Anjali had categorically stated that on 17.02.2007, accused Anjali had told her husband that she was going to Moradabad for her treatment and when she alongwith her husabnd reached the railway station at Moradabad, U.P., at about 12.00 noon, she found accused Anjali with two other ladies and in the meantime, some police officials, including two Sikh police officials came there and pointed guns at her and thereafter, she was arrested by the police officials. This witness was crossexamined by the Ld. APP for the State and in her crossexamination, no material discrepancy has come on record to discard her testimony. The testimony of this witness and the submissions of the accused Anjali, that she was not present in Delhi on 17.02.2007, finds corroboration from the testimony of DW2 R.K. Singh, Nodal Officer from Bharti Airtel Ltd. DW2 has brought FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 34/37 the record of call details of mobile phone No. 9910894120 belonging to accused Anjali Gehlaut. This witness has proved the call details of the mobile phone of accused Anjali, on record, as Ex.DW2/10 to Ex.DW2/12. The copies of the Customer Application Form and the documents have been proved on record as Ex.DW2/1 to Ex.DW2/9. This witness has also brought the roaming record of the mobile phone of accused Anjali and the same has been proved on record as Ex.DW2/15. He has also proved the Roaming Cell ID Chart of the mobile phone of the accused as Ex.DW2/16. This witness has categorically stated on on 17.02.2007, the location of the mobile phone of accused Anjali Gehlaut, bearing No. 9910894120, has been shown at Moradabad, U.P. at about 1.11.25 p.m. He has further stated that the location of the said mobile phone, at 4.21.43 p.m. was at Garh Mukteshwar, U.P. No discrepancy has come on record in the cross examination of this witness and there is no reason for disbelieving the testimony of this defence witness as this witness is a Nodal Officer of Bharti Airtel Ltd. The call details of the mobile phone of accused Anjali have duly proved the plea of 'alibi', as taken by the accused Anjali in her defence. No other cogent evidence has come on record against accused Anjali to prove the offence punishable U/s 29 NDPS FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 35/37 Act against her. No recovery has been effected from her possession and her presence at the spot is also doubtful.
34. In view of the above discussion, I am of the considered opinion that the prosecution has successfully proved its case against the accused Rajender Singh for the offence punishable U/s 21 (b) of the N.D.P.S. Act, and has also succeeded in proving its case against the accused Shamim Ahmed for the offence punishable U/s 29 of the N.D.P.S. Act. However, the prosecution has failed to prove its case against accused Anjali for the offence punishable U/s 29 of the N.D.P.S. Act, beyond a shadow of doubt. Therefore, the accused Rajender Singh is hereby held guilty and convicted for the offence punishable U/s 21 (b) of the NDPS Act and the accused Shamim Ahmed is also convicted for the offence punishable U/s 29 of the NDPS Act. But, the accused Anjali is hereby acquitted for the offence punishable U/s 29 of the NDPS Act. The bail bond submitted by accused Anjali on 01.06.2007 is extended for a further period of six months from today, as per the provisions of Section 437A Cr.P.C.
35. The accused Anjali is further directed to appear before the appellate court, as and when, the notice is issued to her by the appellate court, in any appeal, if preferred by the State, against her FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 36/37 acquittal.
36. Let the convict Rajender Singh and Shamim Ahmed be heard on the point of sentence, on the next date of hearing, on 02.05.2013.
It is ordered accordingly.
Announced in the open court Brijesh Kumar Garg on this 26th day of April, 2013. Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
FIR17/2007 PS Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 37/37