Delhi District Court
State vs . Md. Ashraf 272/11 1 Of31 on 17 January, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.15/2012
FIR No.272/2011
PS Crime Branch
u/s 21 NDPS Act
State
Vs.
Mohd. Ashraf @ Saifi
S/o Sh.Abdul Rashid
R/o WZ175, Madipur,Delhi.
Date of institution :14022012
Date when arguments concluded:19122013
Date when Judgment pronounced:04012014
Appearances: Mr. Ashok Kumar, APP for the State.
Mr.Kundan Kumar, counsel for accused.
JUDGMENT
1. The accused has been forwarded by police to face trial u/s 21 of NDPS Act for being in possession of 1 kg. heroin.
2. Facts are that a secret informer gave a tip off to SI Sunil Kumar in Narcotic Cell, Shakkarpur, Delhi on 161011 that Md. Ashraf resident of Madipur and Bablu resident of Mangolpuri used to State vs. Md. Ashraf 272/11 1 of31 supply heroin in Delhi after procuring from Bareley and on that day also they would come near footover bridge bus stop, Ring road, Mangolpuri, Delhi between 2.30 3.00 PM to supply heroin to somebody in bulk quantity. Informer was produced before Inspt. Vivek Pathak, who after verification of tip off, informed ACP Bir Singh telephonically. ACP instructed the SI to proceed further. DD No.10 was registered in respect of secret information and a raiding team of SI Sunil Kumar, HC Mukesh, HC Om Prakash and Ct. Yogesh was formed which left the Narcotic Cell, Shakkarpur in government vehicle with IO bag, field testing kit and electronic weighing machine vide DD No.11. Five passengers at ISBT, Kashmere Gate and five passersby at Madhuban Chowk were asked to join the raiding team but they refused expressing their reasonable inabilities. The official vehicle was parked about 50 meters ahead of footover bridge and raiding team members were positioned near footover bridge. At 2.40 PM, the informer pointed out towards a person wearing cream colour Tshirt and was having a green polythene in his left hand and he was coming on foot from the side of Mangolpuri flyover. That person started looking around with suspicious eyes and after waiting for 34 minutes, he started State vs. Md. Ashraf 272/11 2 of31 moving towards flyover but was apprehended by the raiding team members and on inquiry he told his name as accused Mohd. Ashraf @ Sefi resident of Mangolpuri. He was told about the secret information and notice u/s 50 of NDPS Act was given and interpreted. Further offer was that if he wanted to search the police party or vehicle, he can search them. But he reposed full faith in the police and his refusal reply was written by SI Sunil himself as accused was illiterate. Some people had assembled there and they were asked to join the forthcoming search but they left the spot without disclosing their names and addresses. Thereafter SI took out a polythene from the left hand of the accused and it was found containing Matiyala colour powder and on checking on field testing kit it was found heroin. It was one kg. Two samples of 5 gms. each were separated and marks. A and B were given and serial No.C was given to remnant 9.90 gms. heroin. Form FSL was filled up. All marks and FSL form were sealed with the seal of 3 B PS NB Delhi and seal after use was handed over to HC Mukesh. Rukka and case property were sent to PS through HC Om Prakash who handed over the case property to the SHO and rukka to the Duty Officer consequent to which FIR was registered. SHO affixed his State vs. Md. Ashraf 272/11 3 of31 seal of CRM and deposited the case property with the MHC(M). Further investigation was done by ASI Devender Singh. The sample parcel Mark A was sent to the FSL which opined that it was found containing diacetylmorphine and acetaminophen. Percentage of diacetylmorphine was found to be 10.27%.
3. Charge u/s 21 (C) of NDPS Act was framed against accused on 14022012 to which he claimed trial.
4. In order to establish the charge, prosecution examined 11 witnesses. Accused examined his father Abdul Rashid as DW1 in the defence.
5. PW6 Inspt. Vivek Pathak deposed that on 161011 at 12.45 PM, SI Sunil Jain came to his office with an informer who told him that two persons namely Mohd. Ashraf resident of Madipur and Bablu resident of Mangolpuri used to bring heroin from Bareley in order to supply in Delhi and on that day also both would come near footover bridge Mangolpuri between 2.30 to 3.00 PM. PW6 further deposed that he flashed the information to ACP Bir Singh at his residence who directed him to proceed further. Thereafter secret information was reduced into writing vide DD No.10 Ex.PW5/A and a copy was produced before him and it was State vs. Md. Ashraf 272/11 4 of31 forwarded to the ACP. He further deposed that a raiding team of SI Sunil, HC Om Praksh, HC Mukesh and Ct. Yogesh was formed on his direction which left the office with IO bag, field testing kit and electronic weighing machine in official vehicle No.DL1CM4228 vide DD 11 Ex.PW6/A. He next deposed that on 171011 at 2.45 AM ASI Devender, (Second IO) produced accused Mohd. Ashraf before him and he found his arrest justified. Same day ASI Devender sent him report Ex.PW5/C u/s 57 of NDPS Act regarding arrest of accused which he forwarded immediately to ACP. Same day SI Sunil Jain produced before him report Ex.PW5/B u/s 57 of NDPS Act regarding seizure of 1 kg. heroin which he forwarded to ACP, Narcotic Cell.
PW5 ACP Bir Singh deposed that inspt. Vivek Pathak informed him telephonically on 161011 at 1.00 PM about the secret information and so he instructed him to take legal action immediately. He further deposed that DD 10 A Ex.PW5/A was produced before him on the same day in his office which he signed. Next day he received two reports Ex.PW5/B and Ex.PW5/C u/s 57 of NDPS Act regarding arrest of accused and seizure of contraband. DD and special reports were received in his office vide dak entry State vs. Md. Ashraf 272/11 5 of31 No.2067 dated 161011 and 2068, 2069 both dated 171011.
PW7 Inspt. C. R. Meena was SHO PS Crime Branch on 1610 11 when HC Om Prakash produced before him at 7.05 PM three cloth parcels bearing Marks A, B and C, FSL form and a carbon copy of seizure memo. These articles were bearing seals of 3 B PS NB Delhi. He deposed that he put his own seal of CRM on parcels and FSL form and also wrote FIR number on them and on the documents produced before him. Thereafter he called MHC(M) HC Jag Narian and handed over the case property and documents to him who made entry in register no.19 which was signed by him also. He recorded DD No.13 Ex.PW3/F. His statement u/s 161 Cr. PC was written by ASI Devender on 171011. Lastly, he deposed that pullanda Mark A and FSL form having seals of 3B PS NB Delhi and CRM were handed over to HC Charan Singh by MHC(M) on his direction on 041111 vide RC No.519/21/11 for deposit in FSL.
PW2 HC Jag Narain deposed that on 161011, SHO C.R.Meena called him in his office with register no.19 and handed him over three pullandas bearing Marks A, B,C and FSL form having seals of 3B PS NB Delhi and one seal of CRM and carbon State vs. Md. Ashraf 272/11 6 of31 copy of seizure memo for which he made entry No.1365 Ex.PW2/A in register no.19. ASI Devender deposited personal search articles like carbon copy of notice u/s 50 of NDPS Act with him and he made entry against the main entry in register no.19. As per the instructions of SHO C.R. Meena, PW2 deposed, he handed over sample pullanda Mark A and FSL form in sealed condition to HC Charan Singh vide RC Ex.PW2/B. After deposit HC Charan Singh handed him over receipt acknowledgment Ex.PW2/C. FSL result, remnant sample parcel FSL were received in malkhana through HC Joginder and he (PW2) made entry in register no.19 at point X. He handed over result to the IO.
PW1 HC Charan Singh had deposited the case property in the FSL. PW1 and PW2 did not tamper with the case property until it was in their possession.
PW3 HC Jaipal Singh registered FIR Ex.PW3/A on 161011 at 7.00 PM on receipt of rukka brought by HC Om Prakash sent by SI Sunil Kumar and made endorsement Ex.PW3/B on rukka. He registered DD No.12 Ex.PW3/C qua registration of FIR. The process of registration of FIR was completed and vide DD No.15 Ex.PW3/E. He also proved DD No.13 as Ex.PW3/F. State vs. Md. Ashraf 272/11 7 of31 PW8 ASI Devender Singh was present in Narcotic Cell, Shakkarpur on 161011 when further investigation was assigned to him at 8.30 PM by inspt. Vivek Pathak. He left the Cell for spot vide DD No.14 A Ex.PW8/A alongwith Ct. Rajender in official vehicle No.DL1CM4228 and found SI Sunil Kumar, HC Mukesh, Ct. Yogesh and accused there. Custody of relevant documents and accused was handed over to him and he prepared rough site plan Ex.PW8/B at the instance of SI Sunil. He arrested the accused vide arrest and personal search memos Ex.PW4/D and Ex.PW4/E respectively. He further deposed that he recovered carbon copy Ex.P6 of notice, cash of Rs.430/ and a silver ring from the personal search of the accused. After interrogation, disclosure statement Ex.PW4/F was recorded. He left the spot finally at 12 midnight and reached PS Crime Branch, Nehru Place at 1.00 AM from where he collected copy of FIR and rukka from HC Om Prakash and deposited personal search articles with the MHC(M). Report Ex.PW5/C u/s 57 of NDPS Act regarding arrest of accused was sent to senior officials on 171011 through inspt. Vivek Pathak. The accused was taken on two days police custody and was taken to Jalalabad, Shahjahanpur, UP for the apprehension of State vs. Md. Ashraf 272/11 8 of31 source person. The source person, as per disclosure statement, was Rupesh Kumar who met them on the way and he was taken to PS Kotwali, Jalalabad. He was interrogated extensively but nothing was recovered from his possession.
PW11 Bharti Arya is Assistant Director in Chemistry Devision of CFSL, Bhopal and she tendered her report dated 161211 as Ex.PX.
PW4 HC Mukesh Kumar, PW9 SI Sunil Kumar and PW10 HC Om Prakash are the recovery witnesses of the raiding team headed by SI Sunil Kumar who deposed that he was present in Narcotic Cell, Shakkarpur on 161011. A sneaker gave him tip off at 12.30 PM that two persons namely Ashraf resident of Madipur and Bablu resident of Mangolpuri used to procure heroin from Barelli, UP and were supplying in the area of Delhi and on that day also they would come near footover bridge Mangolpuri between 2.303.00 PM to supply heroin to somebody in bulk quantity. He produced the informer before PW6 who flashed the information telephonically to ACP Bir Singh. ACP gave green signal for the follow up action. Accordingly PW9 registered DD No.10 Ex. PW5/A at 1.00 PM and a raiding team of himself, PW4 and PW10 State vs. Md. Ashraf 272/11 9 of31 was formed which left the Cell at 1.10 PM in government vehicle No.DL1CM4228 alongwith IO bag, field testing and electronic weighing machine vide DDNo.11 Ex.PW6/A and reached the spot via Pusta Road, Kashmere Gate, Mukarba Chowk, Madhuban Chowk. PW9 further deposed that he asked five persons each at ISBT and Madhuban Chowk to join the forthcoming raid but all refused and left the spot after giving reasonable excuses. IO, HC Mukesh and informer positioned themselves near footover bridge and HC Om Prakash and Ct. Yogesh were positioned 10 meters away from them towards Madhuban chowk. Informer pointed towards a person at 2.40 PM who was coming from the side of Mangolpuri with a heavy green polythene in left hand. That person stooped 45 meters short of PW9, waited for somebody for 34 months and thereafter started retreating. He was apprehended at 2.45 PM and on inquiry he disclosed his identity as accused Ashraf. He was told about the secret information and coming search and for that purpose carbon copy Ex.PW4/A of notice u/s 50 NDPS Act was given and interpreted but he reposed full faith in the police and his refusal reply Ex.PW4/B was written by PW9 on the dictation of the accused as he was illiterate. PW9 next deposed State vs. Md. Ashraf 272/11 10 of31 that 810 public persons had assembled before his search and he asked them to witness the search but they refused. Thereafter he took green polythene bag from the left hand of the accused and it was found containing transparent polythene whose mouth was found tied with rubber band. PW9 removed rubber band and was surprised to see a matiyala colour powder which was detected as heroin after checking on field testing kit. It was weighed on electronic weighing machine and was found 1 kg. PW9 further deposed that he separated two samples of 5 gms each, put them in transparent polythene tied them with rubber band, made parcels of white cloth and gave Marks A & B to them. The remnant contraband was also converted into the cloth parcel in the same fashion and Mark C was given. Form FSL was filled up at the spot. Marks A, B and C and FSL form were sealed with the seal of 3B PS NB Delhi and all articles were seized vide seizure memo Ex.PW4/C. Seal after use was handed over to HC Mukesh Kumar. PW4 HC Mukesh Kumar also asserted all the facts deposed by PW9 and deposed that seal after use was handed over to him. Thereafter PW9 prepared rukka Ex.PW9/A and handed over rukka, three sealed parcels, FSL form and carbon copy of seizure memo to State vs. Md. Ashraf 272/11 11 of31 PW10 with the direction to hand over the rukka to duty officer and sealed parcels, FSL form and seizure memo to the SHO for depositing in malkhana. He further deposed that HC Om Prakash left the spot for PS Crime Branch with driver Ct. Rajender Singh in the government vehicle at 5.45 PM and he alongwith remaining staff remained at the spot. PW10 HC Om Prakash corroborated the version of PW9 by deposing that he took rukka, three Marks, FSL form and carbon copy of seizure memo to PS and handed over rukka to the DO and all other articles to the SHO. He further deposed that SHO PW7 affixed his seal of CRM, wrote FIR number on the parcels and FSL form and also put his signature on them. Thereafter SHO called MHC(M) in his room with the register no.19 and handed over the three parcels, FSL form and carbon copy of seizure memo to him and MHC(M) made entry in register no.19. He further deposed that Duty Officer handed him over original rukka and copy of FIR at 8.20 PM and he returned to the spot with those papers and handed over to second IO ASI Devender Singh. He remained at the spot with the remaining staff till 12.00 midnight.
6. APP argued that provisions of section 42 NDPS Act have State vs. Md. Ashraf 272/11 12 of31 been complied with by reducing the secret information into writing in the form of DD No.10. He further submitted that option of being searched in the presence of Gazetted Officer or Magistrate was given to the accused vide Notice u/s 50 NDPS Act but he preferred to be searched by the police party and thereafter he was searched by PW9 and 1kg. heroin was recovered from polythene carried by him in left hand. He contended that all parcels and FSL form etc. were taken by PW10 to the PS and case property was handed over to SHO who affixed his own seal of CRM and deposited the case property with the MHC(M). Sample parcel A was dispatched to the FSL on 041111 intact. Lastly he contended that reports u/s 57 of NDPS Act were sent to the ACP well in time.
7. On the other hand counsel for accused argued that despite availability, no public witness was joined. FSL form was not filled up at the spot and so there arises no question of sending of FSL form to the laboratory. Also there is a delay of 18 days in sending the sample to the lab. Counsel raised doubt about deposit of case property with the MHC(M) by the SHO. He submitted that a small quantity of smack was recovered from his client but it was mixed with paracetamol in order to make it a commercial quantity State vs. Md. Ashraf 272/11 13 of31 and that is why there is a change of colour of the case property. He argued that it is the case of the prosecution that subsequent investigation was done by ASI Devender Singh but there is nothing on the file to suggest by whom he was appointed as the second IO. He assailed the offer of search of the accused in the presence of GO or Magistrate.
8. Regarding public witnesses PW9 deposed that place of recovery was a public place. There is a bus stop near the place of recovery. CNG pump is about 150200 meters away from there. No notice in writing was given and no action was taken u/s 187 IPC against public persons who had refused to join the search. No one was called from the CNG pump to become witness. He could not tell the names and addresses of those persons who had refused to participate in the search. It is pertinent to mention that these persons included the passengers at ISBT, passersby at Madhuban Chowk and spectators at the spot. As per rough site plan Ex.PW8/B, the place of recovery is place near footover bridge of Mangolpuri. It is on the ring road. The recovery was effected at 2.45 PM and that time can be said to be a peak time for the commuters. Numerous vehicles might be plying on the ring road at State vs. Md. Ashraf 272/11 14 of31 that time. Residential area is also very closely located to that place. All this discussion shows that public persons were definitely available at the spot. Prosecution is furnishing usual explanation that IO had asked public persons to witness the search but they refused. Police officials are not aware of the names and addresses of those persons. No notice was given to them and no action was taken against them. Local police station is also not far away from there. A police colony is also nearby located. But on the sole ground of nonjoining of public witness in the search, the accused cannot be acquitted as was held by Apex Court in Ravindran @ John Vs. Superintendent of Customs AIR 2007 SC 2040 that non examination of independent witnesses to search is not fatal. In the event of nonjoining of independent witness, the evidence of official witnesses may, however, be approached with suspicion and corroboration may be insisted upon.
9. Second contention of the defence counsel is that no FSL form was filled up at spot and so there arises no question of sending of such form to the laboratory for tallying the seals with the seals appearing on the sample parcel A. In this regard, he heavily relied upon the testimony of PW11 Bharti Arya, Assistant State vs. Md. Ashraf 272/11 15 of31 Director CFSL, Bhopal. She deposed that FSL Rohini had received forwarding letter in sealed condition. She volunteered that it was received in the case section and that is why she was not able to tell the impression of the seal on the envelope containing forwarding letter. The envelope was not handed over to her by the case section. Counsel submitted that PW11 is talking about the forwarding letter and not about the FSL form. He further submitted that she did not notice any seal on the forwarding letter.
As per the deposition of PW11, the forwarding letter was received in the envelope. The envelope was in sealed condition and its seal was broken in the case section. That envelope was not handed over to PW11 and only the forwarding letter was handed over to her. She compared the seal appearing on the sample with the seal of the forwarding letter. It is in the evidence of all recovery witnesses that FSL form was sealed with the seal of 3BPS NB Delhi. It is not their contention that seal was affixed on the envelope. So it is the consistent stand of all recovery witnesses that seal was affixed on the FSL form and not on envelope. As per the evidence of PW11,she compared the seal of Mark A and forwarding letter and the seals were found intact. The case section did not State vs. Md. Ashraf 272/11 16 of31 deliver to PW11 the envelope in which the forwarding letter was contained. That default is not going to help the accused because the seals of sample parcel were to be compared with the seals appearing on the FSL form/ forwarding letter and not with the seals appearing on the envelope. As per FSL report Ex.PX seals were intact and tallied with the specimen seals as per forwarding letter(FSL Form). So Ex.PX is talking about the forwarding letter keeping the FSL form in the bracket. It means that forwarding letter and FSL form is one and the same thing. So argument of the defence counsel on that issue is of no consequence.
10. The defence counsel next argued that there is violation of section 55 of NDPS Act as the case property was deposited with the MH(CM) by the second IO PW8 ASI Devender and not by the SHO. In this regard he relied upon the testimony of PW8 appearing in crossexamination at page no.4 wherein he deposed that he signed register no.19 while depositing the case property. He relied upon the testimony of PW10 also appearing in crossexamination at page no.2 wherein he deposed that he did not deposit the case property. Counsel also referred to register no.19 Ex.PW2/A wherein the signature of second IO ASI Devender are appearing on State vs. Md. Ashraf 272/11 17 of31 page no.2. On page 1, there is signature SHO under the word "attested". The counsel argued that the case property was deposited by PW8 and not by SHO and that is why the SHO has written the word "attested".
Relevant testimony of PW8 on this issue is as under:
"... I also signed the register no.19 while depositing the case property. The personal search articles were deposited within the column of case property of this case. No separate entry of deposit of personal search articles was made. The same was deposited with the case property itself ..."
This testimony in four lines shows that first sentence is related to the case property and remaining three sentences are related to the personal search articles. It further shows that personal search articles were deposited with the MHC(M) in the column of the case property and for personal search articles he (MHC(M) did not make separate entry. It is corroborated by register no.19 Ex.PW2/A. It further shows that he wrongly referred to case property in the first sentence and rather the words "case property" stand for personal search articles. If the words "case property" are substituted with the words "personal search articles,"
State vs. Md. Ashraf 272/11 18 of31 all four lines become coherent and can be read harmoniously. Moreover it is the contention of PW10 HC Om Prakash that he did not deposit the case property and rather he handed over the property to SHO who deposited the same with MHC(M). MHC(M) also deposed that case property was deposited with him by the SHO. Register no.19 Ex.PW2/A has two pages. First page is related to the deposit the case property and second page is related to the deposit of personal search articles. It is the second page which has been signed by the second IO. The first page has been signed by the SHO C.R Meena. His name is appearing in that column as a depositor. So arguments of the defence counsel on this issue is again futile.
11. Counsel further argued that recovery was effected on 161011 and sample was sent to FSL on 041111. He means to say that delay of 19 days was sufficient for the police to tamper with the sample.
It has been deposed by all three recovery witnesses and particularly by PW10 HC Om Prakash that he took the case property in sealed condition to the PS and handed over to PW7 SHO C.R. Meena. SHO deposed that he affixed his own seal of State vs. Md. Ashraf 272/11 19 of31 CRM on the case property and FSL form etc. and deposited with MHC(M). MHC(M) PW2 HC Jag Narain deposed that case property was deposited with him by the SHO and at that time it was found sealed with the seal of 3B PS NB Delhi and CRM. Sample parcel A was sent to FSL Rohini intact and it reached, as per FSL report, intact. So right from the spot till its reaching to the laboratory, the sample remained untampered. Hence delay of 19 days is not causing any prejudice to the accused. In Hardeep Singh v. State of Punjab 2009 SC 432 there was a delay of 40 days in sending the sample to the FSL. The APEX Court held that no prejudice was caused to the accused because seals of the sample were not found tampered with.
12. Defence counsel next contended that there is a change in the colour of the case property. He submitted that as per FSL report, sample Mark A was found containing light grey substance but as per recovery witnesses the case property was of light brown colour.
There is not much difference between grey and brown colour. The recovery was effected on 161011 and the sample was tested in the lab on 16122011 i.e. after two months. In DRI V. Bitoren State vs. Md. Ashraf 272/11 20 of31 Dolores Fernandez , Crl.MC 2970/11, Crl. MA 10476/2011 (Stay) decided by Hon'ble High Court of Delhi on 16092011, the High Court observed that following may be the reasons in the change in colour of the case property:
i. Improper storage (deterioration due to the effect of light, variation in temperature and humidity etc.); ii. Natural products are prone to get infected with bacterial and fungal micro organisms, which may cause change in chemical composition, thereby it may decompose, partly or fully;
So minor change in colour, as in the present case, may occur due to several other reasons. The defence counsel is not justified to argue that the sample was tampered with.
13. Defence counsel further argued that heroin in small quantity was seized from the accused but in order to make a commercial recovery, the recovered contraband was mixed with paracetamol and in this regard he heavily relied upon FSL report Ex.PX in which it has been opined that sample parcel A was found containing diacetylmorphine and acetaminophen. PW11 deposed in crossexamination that acetaminophen is the chemical name of State vs. Md. Ashraf 272/11 21 of31 paracetamol. Counsel next referred to the testimony of PW10 at page no.3 and 4 of crossexamination wherein he deposed that he understood paracetamol. He next deposed that he was not knowing about paracetamol powder and only knew about paracetamol tablet.
Even if it is presumed that PW10 was knowing about the paracetamol powder, there is nothing on the record to suggest that that powder was mixed with the recovered smack in order to make it commercial quantity. Moreover it has been clarified by PW10 himself that he was not knowing about any paracetamol powder but he knew about paracetamol tablet. Knowledge of paracetamol tablet is not obnoxious to the prosecution case because such kinds of tablets are used by the people of this country at large without prescription and so knowledge of that tablet to PW10 is justified.
14. Defence counsel next argued that police did not comply with the provisions of section 50 of NDPS Act. He referred to the testimony of ACP Bir Singh PW5 wherein he deposed that neither he accompanied the raiding team nor raiding team members asked him to accompany them in recovery proceedings. He further deposed that even inspt. Vivek Pathak did not request him to join State vs. Md. Ashraf 272/11 22 of31 the proceedings. On this issue PW6 deposed that he did not ask SI Sunil (first IO) to take any Gazetted Officer or Magistrate with him. Defence counsel argued that recovery was effected only 23 km. away from the Rohini Courts. He further submitted that police colony having accommodation of several ACPs is also nearby located but despite it no GO or Magistrate was joined in the proceedings.
It is the consistent stand of the prosecution that recovery was effected from a polythene bag carried by accused in his left hand. It was held by the APEX Court in State of Himachal Pradesh v. Pawan Kumar AIR 2005 SC 2265 that compliance of section 50 of NDPS Act is not required in the search of baggage, article or container carried by the person searched. In the case in hand also, the recovery was effected from the polythene carried by the accused in his left hand and so no notice u/s 50 of NDPS Act was required. It is stated at the cost of repetition that notice in this case u/s 50 of NDPS Act was given to the accused but he reposed full faith in police and refused to be searched in the presence of GO or Magistrate and that is why his search was not conducted in the presence of GO or Magistrate.
State vs. Md. Ashraf 272/11 23 of31
15. Counsel for accused next argued that process of registration of FIR was initiated vide DD No.12 Ex. PW3/C and it was completed vide DD No.15 Ex. PW3/E. He contended that it is not mentioned in DD No.12 as to whom further investigation was to be assigned. He submitted that as per DD No.15, the FIR and rukka were to be handed over to SI Sunil Kumar and so SI Sunil Kumar should have been the second IO but it is the ASI Devender who is the second IO. He drew the attention of the court towards the crossexamination of SHO PW7 wherein he deposed that second IO was not appointed on his order. The counsel argued that the second IO is to be appointed by the SHO but in this case he has not been appointed by the said SHO. He went through the testimony of PW6 appearing at page no.4 of crossexamination wherein he deposed that he came to know of apprehension of accused at 2.45 AM on 171011. The counsel argued that second IO might have been appointed just after registration of FIR i.e. at about 7.00 PM on 161011. The counsel means to say that the second IO was neither appointed by inspt. Vivek Pathak and nor by SHO PW7. The counsel argued that none of the prosecution witnesses is aware by whom the second IO was appointed and it State vs. Md. Ashraf 272/11 24 of31 happens in those cases in which investigation has already been completed by the first IO and in this case also the same thing had happened. Name of second IO has been mentioned just to show that some part of the investigation was done by him also. The counsel contended that it has been done to show that the complainant police officer i.e. first IO is not the person who conducted the whole investigation of the case.
It has been held by the Apex Court several times that if the NDPS case is investigated wholly by the complainant police official, it causes no dent to the prosecution case. There is DD No.12 Ex.PW12/C and in that DD it is crystal clearly mentioned that when the process of registration of FIR was initiated, ACP was intimated about the facts of the case and it was ACP who directed ASI Devender Singh to investigate the case. The said DD has been written by Duty Officer. Not a single question was asked from ACP whether he appointed the second IO or not. So it has been well proved by DD No.12 that second IO was appointed by the ACP and so there was no occasion for PW6 and PW7 to appoint the second IO.
16. Ld. defence counsel next argued that prosecution story State vs. Md. Ashraf 272/11 25 of31 is quite improbable and to buttress the point he went through the crossexamination of PW4 appearing at page no.8 wherein he deposed that he was not using mobile phone on that day. He is not aware whether other team members were having mobile phones or not. He further deposed that on the day of deposition, he was using mobile phone as it was provided to him by the office. On the day of the raid, no mobile phone was provided to any of the officer. He further deposed that local police was not informed after reaching the spot and before apprehending the accused. No police official was called from the PS in the entire proceedings though they remained at the spot from 2.15 PM to 12.00 midnight. To the same effect is the evidence of other raiding team members. Defence counsel argued that the raiding team members did not disclose their mobile numbers deliberately so that the accused may not come to know of their exact locations on the date of recovery.
Accused did not place any document on record or did not examine any witness in the defence to show that the raiding team members were having mobile phones on that day. It has been deposed by PW4 specifically that no official mobile phone was provided to them on the date of the recovery. The accused did not State vs. Md. Ashraf 272/11 26 of31 examine any witness of the police department to prove that official mobile phones have been provided to the police officials on or prior to the date of the raid. The accused did not give any suggestion to recovery witnesses that they were using particular mobile phone numbers. So he is not aware of any mobile phone number used by the raiding team members. He is groping in darkness.
17. Defence counsel lastly argued that prosecution has failed to prove FIR and in this regard he heavily relied on the cross examination of PW3 DO HC Jaipal Singh who deposed that he was not computer literate. He does not have knowledge of maintaining computer. He could not remember who was the computer operator on that day by whom FIR was registered. Defence counsel argued that Certificate u/s 65 B of Evidence Act is to be of the person who is in the charge of computers from where print out Ex.PW3/A of FIR was taken.
Certificate Ex.PW3/D u/s 65 of Evidence Act is of SHO PS Crime Branch and not of PW3. The SHO has appeared in the witness box and the accused did not give him a single suggestion that he was not conversant with the computer. Moreover, no suggestion was given to PW3 that all the entries in FIR were State vs. Md. Ashraf 272/11 27 of31 fabricated. Rukka is Ex.PW9/A on the basis of which case FIR was registered. Contents of rukka and FIR are verbatim to each other ruling out possibility of fabrication of entries in the FIR. In State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru Appeal (Crl.) 373375 of 2004; decided by SC on 04082995, the Apex Court held " ... Above all, the print outs pertaining to call details exhibited by the prosecution are of such regularity and continuity that it would be legitimate to draw a presumption that the system was functional and the output was produced by the computer in regular use, whether this fact was specifically deposed to by the witness or not. We are, therefore, of the view that the call records are admissible and reliable and rightly made use of by the prosecution."
In the case in hand, it has been deposed by PW3 that FIR is printout of the computer. Its contents are verbatim to the rukka. The Certificate u/s 65 B of Evidence Act is of the SHO, who has not been questioned on the gennunity of FIR. So the arguments of the defence counsel that FIR has not been proved is of no use for the accused.
14. Taking into account all these facts, accused Md. Ashraf State vs. Md. Ashraf 272/11 28 of31 @ Sefi is held guilty of charges leveled against them. Let he be heard on the point of sentence separately.
Announced in the Open Court On day of 4th January, 2014.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North Distt: Rohini Courts: Delhi
State vs. Md. Ashraf 272/11 29 of31
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.15/2012
FIR No.272/2011
PS Crime Branch
u/s 21 NDPS Act
State
Vs.
Mohd. Ashraf @ Saifi
S/o Sh.Abdul Rashid
R/o WZ175, Madipur,Delhi.
Date of institution :14022012
Date when arguments concluded:19122013
Date when Judgment pronounced:04012014
ORDER ON SENTENCE
17012014
Present: Mr. Ashok Kumar, APP for the State.
Mr.Kundan Kumar, counsel for accused.
1. Convict has been held guilty u/s 21(C) of NDPS Act.
2. Ld. APP for the State argued that convict had been found guilty for being in possession of 1 kg. heroin under NDPS Act. He further submitted that he be punished with the maximum punishment provided for the offence.
3. Ld. State vs. Md. Ashraf 272/11 30 of31 Counsel for convict argued that his client is of 28 years. He was married in 2010. He has old parents aged about 73 years and 65 years, one elder brother, lohar by profession and three married sisters and his wife to maintain. Lastly, the counsel submitted that convict is the sole bread earner of his family. Defence counsel further submits that convict has no other case against him.
4. Taking into account facts and circumstances, the convict Mohd. Ashraf @ Saifi is sentenced to undergo RI for ten years and a fine of Rs.1,00,000/ (Rupees one lac only), in default of payment of fine he shall further undergo SI for six months for the offence punishable u/s 21(C) of NDPS Act.
5. Benefit of section 428 Cr. PC be given to the convict.
6. Fine not deposited.
7. Case property stands confiscated and be destroyed as per rules after the expiry of the period of appeal or after awaiting the outcome of appeal, as the case may be.
8. Let a copy of Judgment and Order on Sentence be given to convict.
9. File be consigned to Record Room.
Announced in the Open Court On day of 17th January, 2014. (UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North Distt: Rohini Courts: Delhi State vs. Md. Ashraf 272/11 31 of31