Delhi District Court
State vs . 1. Sunil Sahni, on 22 February, 2020
IN THE COURT OF AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 583/2017
In the matter of:
State Vs. 1. Sunil Sahni,
S/o Sh. Tunai Sahni
R/o Jhuggi No. 33,
Sonia Gandhi Camp, Samalkha,
New Delhi.
2. Munni Devi
W/o Sh. Tunai Sahni
R/o Jhuggi No. 33,
Sonia Gandhi Camp, Samalkha,
New Delhi.
(Accused No. 2 was discharged
vide order dated 07.11.2017)
FIR No. : 303/17
Police : Kapashera
Station
Under : 20(b) (ii) (B) NDPS Act
Sections
Date of Institution of case : 21.09.2017
Date of Arguments : 18.02.2020
Date of Judgment : 22.02.2020
JUDGMENT:
1. The case of the prosecution is that on 23.07.2017, Inspector Kusum Dhama along with SI Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.1/42 Akash and Ct. Kavita and other staff reached at house of accused Sunil Sahni at Jhuggi No. 33 Sonia Gandhi Camp, Samalkha, New Delhi at about 4.45/5:00 pm in connection with the investigation in case FIR No. 301/17 U/s 304/34 IPC, PS-Kapashera, New Delhi vide departure entry No. DD No. 24 A.
2. It is stated that accused Sunil Sahni and his wife Smt. Munni Devi were found present in aforesaid jhuggi and on search, one gunny bag containing Ganja was recovered. It is stated that on weighing, the recovered Ganja was found to be 3.5 kg. Thereafter, two samples of 15 grams each were taken from the Ganja by SI Akash and the same were converted into pullandas and were given Mark S1 and S2 and remaining Ganja in the recovered bag was also converted into pullanda by SI Akash and was given mark A1. It is averred that SI Akash sealed all the three pullandas with seal of AS and he also filled FSL form and affixed his seal of AS on it. Thereafter, Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.2/42 SI Akash seized all the pullandas and FSL Form and prepared rukka.
3. It is the case of prosecution that Ct. Jaswinder brought the case property and rukka to the police station and presented the rukka before Duty officer ASI Rajesh Kumar who recorded FIR No. 303/17 at about 7.45 pm. ASI Rajesh Kumar made his endorsement on the rukka and issued certificate U/s 65 B of the Indian Evidence Act. It is stated that Ct. Jaswinder produced all the pullandas and FSL Form before Inspector Subeer Ojaswi who affixed his seal of SO on all the pullandas and FSL Form. It is stated that Inspector Subeer Ojaswi deposited all the pullandas and FSL Form with ASI Naresh Chand, MHCM in the malkhana. Thereafter, ASI Naresh Chand made entry in register No. 19.
4. After FIR, the investigation was assigned to ASI Khem Chand who reached at the spot and served notices U/s 50 of NDPS Act upon accused Sunil Sahni Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.3/42 and his wife. It is stated that ASI Khem Chand prepared site plan at the instance of Ct. Kavita. Thereafter, accused Sunil Sahni was arrested by ASI Khem Chand and his personal search was conducted and his disclosure statement was recorded. ASI Khem Chand sent a report U/s 57 NDPS Act to ACP through Inspector Subeer Ojaswi SHO. It is stated that SI Akash sent a report U/s 57 and 42.2 of NDPS Act to ACP through Inspector Subeer Ojaswi SHO. Thereafter, HC Sher Singh made entries in the dispatched register regarding sending the reports prepared by SI Akash and ASI Khem Chand. The reports were received in the Office of ACP and ASI Narender Singh, Reader made entries in diary register.
5. It is further the case of prosecution that on 05.09.2017, one sealed pullanda and FSL Form were sent to FSL Rohini through Ct. Rakesh vide RC No. 11/B and the same were received in the FSL. Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.4/42
Thereafter, the sample was examined in the FSL vide FSL report and the same was filed in the court.
6. After completion of investigation, the charge sheet was filed in the court by IO against accused Sunil Sahni and Munni Devi.
Charge against the accused:
7. Vide order dated 07.11.2017, accused Munni Devi was discharged for the offence charged in the charge sheet in view of the reasons stated therein and the charge for the offence under Section 20(b)
(ii) (B) of the NDPS Act was framed against the accused Sunil Sahni to which he pleaded not guilty and claimed trial and matter was posted for prosecution evidence.
Witnesses examined:
8. The prosecution examined following witnesses in support of its case who are as follows:- Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.5/42
PW1 is SI Akash. He deposed that he alognwith Inspector Kusum Dhama and other staff had gone to Jhuggi No. 33, Soniya Gandhi Camp, in connection with the investigation of case FIR No. 301/17, PS- Kapashera, U/S: 304/34 IPC at about 4.45/5.00 p.m. and accused Sunil Sahni and his wife Munni Devi were found present in Jhuggi. He further deposed that on search of the jhuggi, one gunny bag was recovered and on checking, the same was found containing green colour leaves like substance and on appearance and smell, it seemed to be ganja. He further deposed that on weighing, the recovered ganja was found to be 3.5 kg out of which two samples of 15 gms each were taken. He further deposed regarding seizing the contraband, preparing pullandas and other investigation done in the present matter.
PW2 is SI Pradeep Kumar. He deposed that investigation of present case was marked to him and Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.6/42 he went through the file and recorded statement of Ct. Rakesh. He further deposed that on completion of investigation, he prepared charge sheet and collected FSL report and filed the same in court. PW3 is ASI Khem Chand. He deposed that investigation of present case was assigned to him and after reaching at spot, he served separate notices U/s 50 of NDPS Act upon accused Sunil Sahni and his wife which were proved as Ex. PW-3/A and PW-3/B. PW4 is Inspector Subeer Ojaswi. He deposed regarding production of one white colour gunny bag and pulandas with FSL form and after checking, he affixed his seal and deposited the same with MHC(M) who made entries in register No. 19. He further deposed that he made DD No. 36A with regard to abovesaid proceedings and attested copy of same was proved as Ex. PW-4/A. He further deposed regarding putting up of information U/s 57 NDPS At Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.7/42 and 42.2 of NDPS Act by SI Akash and he forwarded the same to ACP Chhawla.
PW5 is ASI Rajesh Kumar. He is a witness who recorded DD No. 24A regarding departure entry of Inspector Kusum Dhama and other staff and copy of same was proved as Ex. PW-5/A-1. He also proved the registration of FIR in this case.
PW6 is HC Sher Singh. He deposed that he made entry regarding sending intimation U/s 42.2 and 57 NDPS Act to ACP Chhawla by SI Akash and copy of same was proved as Ex. PW-6/A. He further deposed that intimation U/s 57 NDPS Act was sent to ACP by ASI Khem Chand through SHO and he made entry in this regard.
PW7 is Inspector Kusum Dhama. She deposed that on 23.07.2017, she was present with staff at Jhuggi No. 33, Sonia Gandhi Camp, Samalkha for investigation of case FIR No. 301/17, PS-Kapashera, U/S: 304/34 IPC. She further deposed that during Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.8/42 search, ganja was recovered from there and a separate FIR No. 303/17 U/s 20 NDPS Act was registered against accused.
PW8 is Ct. Kavita. She is one of the members of police team who had gone to Jhuggi No. 33, Sonia Gandhi Camp, in connection with investigation of FIR No. 301/17. She further deposed regarding recovery of ganja from accused at his house and also regarding subsequent investigation done by police team at spot.
PW9 is ASI Narender Singh. He deposed that on 24.07.2017, report U/s 57 NDPS Act and 42.2 of NDPS Act sent by SI Akash and forwarded by SHO was received in the office of ACP and he immediately put the same before ACP who had seen the report and made his endorsement.
PW10 is Ct. Rakesh. He is a witness who had taken the sealed pullanda and FSL form pertaining to this case to FSL Rohini after receiving the same from Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.9/42 MHC(M) vide RC No. 107/21/17 and he deposited the sealed pullanda and FSL Form in FSL Rohini and obtained the receipt of case acceptance which he brought to PS. PW11 is ASI Naresh Chand. He is a witness who made entry in register No. 19 vide entry No. 1931 regarding deposition of three sealed pulandas and FSL Form. The copy of said entry was proved as Ex. PW-11/A. He further deposed that on 05.09.2017, one sealed pullanda and FSL Form pertaining to this case were sent to FSL Rohini through Ct. Rakesh.
9. Thereafter, Prosecution Evidence was closed vide order dated 12.02.2020 and matter was posted for recording of statement of accused U/s 313 Cr. P. C.
10. Statement of accused U/s 313 Cr. P. C. was recorded on 14.02.2020 whereby all the incriminating evidence was put to him in which he denied all the allegations and pleaded his innocence.
11. I have considered the submissions of Ld. APP for Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.10/42 the state and Ld. Defence counsel and have gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence. ARGUMENTS OF PROSECUTION:
12. It is argued by Ld. APP for state that this is a case of chance recovery of gaanja. It is stated that Inspector Kusum Dhama alongwith other staff had gone to spot at house of accused Sunil Sahni at Jhuggi No. 33 Sonia Gandhi Camp, Samalkha, New Delhi at about 4.45/5:00 pm in connection with the investigation in case FIR No. 301/17 U/s 304/34 IPC, PS-Kapashera, New Delhi and met accused Sunil Sahni and his wife. It is further argued that during search, accused were found in possession of 3.5 kg ganja kept in a room of his house in a white colour plastic gunny bag in contravention of provisions of NDPS Act. Thus accused and his wife were arrested in Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.11/42 the present case and further investigation was carried out. It is stated by Ld. APP for State that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of the accused persons beyond reasonable doubt. It is further submitted that all the statutory provisions of NDPS Act were duly complied by the Investigating Officer and the members of police team. It is further argued that FSL report has also given positive result for presence of contraband substance and thus accused is liable to convicted.
ARGUMENTS OF DEFENCE:
13. On the other hand, Ld. Counsel for accused vehemently argued that the accused is innocent. It is argued that the testimonies of prosecution witnesses are full of omissions and improvements and in view of improvements made by PWs, their evidence has lost credibility and cannot be relied upon to give finding Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.12/42 of guilt of accused. It is also argued that public persons in this case were not joined by police team while conducting proceedings at spot. It is also argued that the present accused has been falsely implicated.
14. In rebuttal, the Ld. APP for the state submitted that the contradictions in the testimony of material witnesses are minor and natural and does not affect the case of the prosecution. It is further argued that there is sufficient material and evidence on record to prove the guilt of accused.
JUDGMENT RELIED UPON ON BEHALF OF STATE.
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58;
2) Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783;
3) Delias Christopher Vs. Customs 2004 (3) JCC 147;
4) State of Punjab Vs. Balwant Rai 2005 (1) JCC Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.13/42 (Narcotics) 103;
5) State of Haryana Vs. Mai Ram, (2008) 8 SCC 292;
6) Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652;
7) Tahir Vs. State 1996 (3) SCC 338;
8) State of Haryana Vs. Mai Ram, (2008) 8 SCC 292;
9) S. K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal having Criminal Appeal No. 459 of 2017 dated 05.09.2018 passed by Hon'ble Supreme Court of India;
10) State of Punjab Vs. Baljinder Singh passed by Hon'ble Supreme Court of India dated 15.10.2019. JUDGMENT RELIED UPON ON BEHALF OF ACCUSED.
1) Arif Khan @ Agha Khan Vs. State of Uttarakhand, having CA No. 273/07 decided by Hon'ble Supreme Court of India;
2) Dharambir Vs. State having CRL. A. 658/17, decided by Hon'ble High Court of Delhi. Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.14/42
15. I have considered the submissions of counsels for accused and Ld. APP for the state and gone through the documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence. FINDINGS:
16. From perusal of record, it is revealed that this is a case of chance recovery of gaanja from the house of accused Sunil Sahni when the police had gone there in connection with the investigation in case FIR No. 301/17, U/s 304/34 IPC, PS-Kapashera, New Delhi and met accused Sunil Sahni and his wife. It is further argued that during search, accused and his wife were found in possession of 3.5 kg ganja kept in a room of his house in a white colour plastic gunny bag in contravention of provisions of NDPS Act. Thereafter, as per mandate of law two samples of 50 gm each Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.15/42 were drawn from recovered contraband and were sent for chemical analysis. Thus accused and his wife were arrested in the present case and further investigation was carried out.
17. Records of the present case reveal that the accused stands charged for the conscious possession of 3.5 kg gaanja which is an intermediate quantity. The stringent provisions are provided under the act qua the punishment. The scheme of NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguard ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, balance must be struck between the need of the law and the enforcement of such law on the one hand, the protection of citizen from oppression and injustice on the other hand. The provisions are intended for providing certain checks on exercise of power by the authority concerned to rule out any possibility of false Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.16/42 implication or tampering with the record or the contraband.
18. In the present case, the accused was met by police party at his house in connection with investigation of some other case and was found in possession of gaanja kept in gunny bag in his room. Hence, it cannot be stated that he was not in conscious possession of the contraband i.e. Gaanja.
19. Now, this court will deal with the testimonies of prosecution witnesses recorded in the court.
20. First witness produced by prosecution is PW1 SI Akash. In examination in chief, this witness deposed that he alognwith Inspector Kusum Dhama and other staff had gone to Jhuggi No. 33, Soniya Gandhi Camp, in connection with the investigation of case FIR No. 301/17, PS-Kapashera, U/S: 304/34 IPC at about 4.45/5.00 p.m. and accused Sunil Sahni and his wife Munni Devi were found present in Jhuggi. He further deposed that on search of the jhuggi, one gunny bag Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.17/42 was recovered and on checking, the same was found containing green colour leaves like substance and on appearance and smell, it seemed to be ganja. He further deposed that on weighing, the recovered ganja was found to be 3.5 kg out of which two samples of 15 gms each were taken. He further deposed regarding seizing the contraband, preparing pullandas and other investigation done in the present matter. He proved the seizure memo of pulandas and FSL form as Ex. PW-1/A, rukka as Ex. PW-1/B and site plan as Ex. PW-1/C.
21. During his cross-examination, at the request of counsel for accused, the contraband was re-weighed but no lacuna was found in the re-weighing of contraband and samples. In his cross-examination, he admitted that "They had not gone for house search but they had gone in search of Sunil Sahni and Munni Devi and that they got some smell from the house when they came out and Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.18/42 they asked them about that foul smell and then they produced the sack". He further deposed that "no witness came to support us as there are jhuggis and all of them support the inhabitants". This witness has denied the suggestions put to him. So from his deposition, it is apparent that present case is a case of chance recovery as police had not gone for house search of accused but they had gone in connection with investigation of some other case and on having some foul smell, they found ganja kept in gunny bag. Though it has been argued by Ld. Defence counsel that public persons were not joined at the time of recovery of contraband but from deposition of PW-1, it is clear that though public witnesses were present but they did not come to support police as there are jhuggies and they all supported the inhabitants/ accused. No dent could be created to his testimony by Ld. Defence counsel.
Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.19/42
22. SI Pradeep Kumar was examined as PW-2. He deposed that investigation of present case was marked to him and he went through the file and recorded statement of Ct. Rakesh. He further deposed that on completion of investigation, he prepared charge sheet and collected FSL report and filed the same in court with his application Ex. PW-2/A and report of FSL as Ex. PW-2/B. Though this witness was cross-examined but nothing contrary has come in his cross-examination which supports the accused.
23. PW3 ASI Khem Chand in his examination in chief deposed that investigation of present case was assigned to him. He further deposed that after reaching at spot, he served separate notices U/s 50 of NDPS Act upon accused Sunil Sahni and his wife which were proved as Ex. PW-3/A and PW-3/B, the arrest memo of accused Sunil as Ex. PW-3/C, his personal search memo as Ex. PW-3/D, his disclosure statement as Ex. PW-3/E and the carbon copy of Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.20/42 report U/s 57 NDPS Act as Ex. PW-3/F. So this witness has proved that notices U/s 50 of NDPS Act served upon accused. He also deposed regarding arrest of accused Sunil Sahni, also regarding his personal search and his disclosure statement. This witness also proved the fact of sending report U/s 57 of NDPS Act to ACP through SHO. In his cross-examination, he denied the suggestion that case property was planted upon accused or that he did not make any disclosure statement or that he was forced to sign some blank papers.
24. PW4 Inspector Subeer Ojaswi deposed regarding production of one white colour gunny bag and pulandas with FSL form and after checking, he affixed his seal and deposited the same with MHC(M) who made entries in register No. 19. He further deposed that he made DD No. 36A with regard to abovesaid proceedings and attested copy of same was proved as Ex. PW-4/A. He further deposed regarding putting Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.21/42 up of information U/s 57 NDPS At and 42.2 of NDPS Act by SI Akash and he forwarded the same to ACP Chhawla. He proved the copy of FSL Form as Ex. PW- 4/B. This witness had not gone to spot for investigation alongwith other staff but he has deposed as per investigation carried out by police team in this case apart from recovery of contraband from house of accused Sunil Sahni. So this witness has also fully supported the case of prosecution.
25. PW5 ASI Rajesh Kumar is important witness who recorded DD No. 24A regarding departure entry of Inspector Kusum Dhama and other staff and copy of same was proved as Ex. PW-5/A-1. He also proved the copy of FIR as Ex. PW-5/A, his endorsement on rukka as Ex. PW-5/B and his certificate U/s 65 B of Indian Evidence Act as Ex. PW-5/C. So this witness has successfully proved the departure entry of Inspector Kusum Dhama, registration of FIR, his endorsement on rukka and certificate U/s 65 B of Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.22/42 Indian Evidence Act and nothing contrary has come in his cross-examination.
26. PW6 HC Sher Singh is a witness who made entry regarding sending intimation U/s 42.2 and 57 NDPS Act to ACP Chhawla by SI Akash and copy of same was proved as Ex. PW-6/A. He further deposed that intimation U/s 57 NDPS Act was sent to ACP by ASI Khem Chand through SHO and he made entry in this regard and copy of same was proved as Ex. PW- 6/B. In his cross-examination he denied the suggestion that the entries in the dispatch register are ante-date and ante-time.
27. Inspector Kusum Dhama was examined as PW-
7 in this case. She is another material witness of prosecution. In her examination in chief, she deposed that on 23.07.2017, she was present with staff at Jhuggi No. 33, Sonia Gandhi Camp, Samalkha for investigation of case FIR No. 301/17, PS-Kapashera, U/S: 304/34 IPC. She further deposed that during Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.23/42 search, ganja was recovered from there and a separate FIR No. 303/17 U/s 20 NDPS Act was registered against accused.
28. In her cross-examination, she admitted that "She is not part of investigation in this case and had gone to spot for investigation of case FIR No. 301/17, PS-Kapashera. SI Aakash has taken the search of house and then found Ganja in one of the bag." From her deposition, it is clear that main investigation in this case including recovery of contraband and sampling has been carried out by SI Akash and she was busy in carrying out the investigation of case FIR No. 301/17, PS- Kapashera.
29. PW8 Ct. Kavita is another members of police team who had gone to Jhuggi No. 33, Sonia Gandhi Camp, in connection with investigation of FIR No. 301/17. She further deposed regarding recovery of ganja from accused at his house and also regarding Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.24/42 subsequent investigation done by police team at spot. This witness has also supported the case of prosecution and no dent could be created to her deposition.
30. PW9 ASI Narender Singh in his examination in chief deposed that on 24.07.2017, report U/s 57 NDPS Act and 42.2 of NDPS Act sent by SI Akash and forwarded by SHO was received in the office of ACP and he immediately put the same before ACP who had seen the report and made his endorsement. The report was proved as Ex. PW-9/A and copy of entry made by him at No. 2759 in this regard as Ex. PW- 9/B. He further deposed that on 02.07.2017, report U/s 57 NDPS Act sent by ASI Khem Chand and forwarded by SHO was received in the office of ACP and he immediately put the same before ACP who had seen the report and made his endorsement. The report was proved as Ex. PW-9/C and copy of entry made by him at No. 2776 in this regard as Ex. PW- Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.25/42 9/D. This witness was also cross-examined by Ld. Defence counsel, wherein he deposed that "No written order was given to me by ACP to make entries in diary register regarding receipt of the aforesaid report. (Vol. It is the duty of Reader to make entry of the documents received in the office)". He denied the suggestion that entries in diary register are ante-dated and ante- time. So this witness has specifically deposed that it is the duty of Reader to make entry of documents received in office and thus there was no need of written orders by ACP in this regard and again Ld. Defence counsel failed to create any dent to the deposition of this witness.
31. PW10 Ct. Rakesh is another star witness of prosecution who had taken the sealed pullanda and FSL form pertaining to this case to FSL Rohini after receiving the same from MHC(M) vide RC No. 107/21/17 and he deposited the sealed pullanda and Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.26/42 FSL Form in FSL Rohini and obtained the receipt of case acceptance which he brought to PS. In his cross- examination, he deposed that he had gone to FSL on Government Motorcycle and entry was made in the logbook. He denied suggestions put to him. So this witness has also supported the case of prosecution and nothing contrary has come in his testimony also. Thus sending of sample to FSL Rohini, vide RC No. 107/21/17 stands duly proved.
32. Last witness produced by prosecution is PW11 ASI Naresh Chand. He is a witness who made entry in register No. 19 vide entry No. 1931 regarding deposition of three sealed pulandas and FSL Form. The copy of said entry was proved as Ex. PW-11/A. He further deposed that on 05.09.2017, one sealed pullanda and FSL Form pertaining to this case were sent to FSL Rohini through Ct. Rakesh and copy of RC No. 107/21/17 was proved as Ex. PW-11/B and copy of receipt of FSL as Ex. PW-11/C. From his testimony, Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.27/42 the entry made in register No. 19 vide entry No. 1931 regarding deposition of three sealed pulandas and FSL Form has been duly proved. He further testified the RC No. 107/21/17 vide which sample was sent to FSL and receipt of FSL. Nothing contrary has come in his cross-examination also.
33. So from above discussion, it is observed that all material documents have been duly exhibited and proved by prosecution as per law.
34. Though it has been argued that search warrants were not taken by police team before taking house search of the accused and recovery of contraband substance is planted one. On the other hand, Ld. APP for the state has argued that from the deposition of prosecution witnesses and also as per the case of prosecution, the present case is a case of chance recovery of contraband and police team had gone in search of accused at his house in connection with case FIR No. 301/17 registered with PS-Kapashera Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.28/42 and contraband was recovered from house of ganja on having foul smell.
35. From perusal of record of present case, it is observed that arguments addressed by Ld. APP for the state has force because admittedly, police team had gone to house of accused in connection with case FIR No. 301/17 and there was no need for carrying search warrant. Thus arguments of Ld. Defence counsel regarding search warrant is hereby discarded.
36. PW-1 SI Aakash during his examination in chief recorded on 07.08.2017 deposed that "no witness came to support us as there are jhuggis and all of them support the inhabitants". This witness has denied the suggestions put to him. So from his deposition, it is apparent that present case is a case of chance recovery as police had not gone for house search of accused but they had gone in connection with investigation of some other case. From his Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.29/42 deposition, if further clear that on having some foul smell, they found ganja kept in gunny bag in his room. Though it has been argued by Ld. Defence counsel that public persons were not joined at the time of recovery of contraband but from deposition of PW-1, it is clear that though public witnesses were present but they did not come to support police as there are jhuggies and they all supported the inhabitants/ accused and thus it cannot be said that public persons not requested to be joined.
37. It is trite that non-joining of public witnesses itself can not become a ground for acquittal, if the case of prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution can not be held to be vulnerable for non-examination of persons who were not official witnesses. In such Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.30/42 cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution can not be disbelieved. This position was reaffirmed by the Apex Court in State, Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652, wherein it was held that :
".... Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police, the court could Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.31/42 certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions". It is further held in same judgment that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution".
38. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court proceedings. The non joining of public witnesses is not fatal to the case as otherwise the case is proved Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.32/42 by way of consistent and cogent evidence. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the opinion that there is no reason to discredit the convincing testimony of prosecution witnesses. This is also fortified by the judgment of Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under:-
"6....... No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.33/42 of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
39. This court has gone through the contents of FSL Report Ex. PW-2/B which says "On physical, microscopic, chemical and TLC examination, 'Exhibit S1' was found to be "Ganja"
(Cannabis). By way of this report, it is duly proved that contraband recovered from the house of accused was ganja.
40. The counsel for accused has argued that testimony and deposition of prosecution witnesses is full of omissions and improvements and in view of Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.34/42 improvements made by PWs, their evidence has lost the credibility and cannot be relied upon to give finding of guilt against the accused. However, it is observed that contradictions in the testimony of material witnesses are minor and natural and does not affect the case of the prosecution.
41. The witnesses produced by prosecution are wholly reliable and trustworthy and nothing could be brought out in their cross-examination to discredit them as they have deposed as per their role in the investigation of the present case. The counsel for accused has argued that accused has been falsely implicated and has no connection with crime. It is observed that witnesses produced in court have no motive or reason to falsely implicate the accused in this case. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.35/42 separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons-falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
42. Even otherwise, it has been held in case of Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783 that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC 147.
43. The present case is a case of chance recovery of ganja. Rather, there is no reason to falsely Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.36/42 implicate the accused. In the case of State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, it was held that:
"The quantity was large, it was held that the question of implanting does not arise".
In the case of Sanjiv Kumar Vs. State of H. P. 2005 (1) Crimes 358 (H. P.) it was observed:
it is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person ......... police had no axe to grind in implicating the accused."
44. Further it has to be seen that accused has failed to bring on record anything showing that he was not in conscious possession of contraband item. Accused Sunil Sahni was found in possession 3.5 KG of ganja kept in gunny bag in his house. On considering the facts available on record, the Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.37/42 document, testimony of witnesses after detailed scrutiny, no doubt remain that accused was in conscious possession of ganja.
45. The Ld. Defence counsel has further argued that notice U/s 50 of NDPS Act was not served upon the accused before taking personal search and his legal rights were not apprised to him and thus, on this ground itself he is liable to be acquitted.
46. However, this argument of Ld. Defence counsel is not at all applicable because the present case is a case of chance recovery of contraband and there was no occasion for police party to serve notice U/s 50 of NDPS Act as they had gone to house of accused Sunil Sahni in connection with investigation of case FIR No. 301/2017 and having foul smell, they detected ganja kept in gunny bag. Rather, prosecution witnesses are clear and consistent in their deposition about the service of notices U/s 50 of NDPS Act Ex. PW-3/A and PW-3/B. The notices U/s 50 of NDPS Act are proved on Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.38/42 record and on perusal of same, it is clear that statutory rights of accused in this regard were clearly explained. By virtue of these notices, the accused were apprised of their legal rights qua their search in the presence of a Gazetted Officer or a Magistrate. However, the accused declined to avail the said right. So, there is no defect with respect to section 50 of NDPS Act. Even otherwise, recovery of contraband in the present case was not effected from the person of accused but from gunny bag kept in their house, hence effect of Section 50 of NDPS Act losses its significance. In these circumstances, the judgment titled as Arif Khan @ Agha Khan Vs. State of Uttarakhand, having CA No. 273/07 decided by Hon'ble Supreme Court of India and Dharambir Vs. State having CRL. A. 658/17, decided by Hon'ble High Court of Delhi are not applicable to the facts of the present case. Even otherwise, Ld. APP for the State has relied upon judgment titled as S. K. Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.39/42 Raju @ Abdul Haque @ Jagga Vs. State of West Bengal having Criminal Appeal No. 459 of 2017 dated 05.09.2018 where Hon'ble Mr. Justice J. Dhananjay Y Chandrachud of Hon'ble Supreme Court has upheld the conviction in a case where recovery was made not in person of accused but from the bag and section 50 of NDPS Act was found to be not applicable and certain interpretation was carried out. Reliance is placed upon latest judgment titled as State of Punjab Vs. Baljinder Singh passed by Hon'ble Supreme Court of India dated 15.10.2019 whereby Hon'ble Court has held that "As regards applicability of the requirements under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises."
47. The counsel for the accused could not find any Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.40/42 flaw in the usage of the seal while sealing the case property. The movement of the contraband items to the Malkhana is also duly proved. Dent could not be created in the statement of the witnesses by counsel for accused. So, nothing doubtful has been brought on record by the accused against the testimonies of the witnesses produced by the prosecution.
48. In the light of consistent and reliable testimony of prosecution witnesses, the defence taken by the accused is found to be improbable which otherwise has not been substantiated by him either by examining himself on oath or by leading any cogent evidence in his defence.
49. In present case, all the procedural safeguards provided under a statute have been strictly complied with. The prosecution has discharged its burden of proving its case against the accused beyond all reasonable doubt. There is no question of conviction of the accused on a misguided, suspicion. This case Sessions Case No. 583/17 State Vs. Sunil Sahni. Page No.41/42 is not based on conjectures or surmises.
50. Hence, considering the overall facts and circumstances of the present, the accused Sunil Sahni is held guilty for commission of offence U/s 20
(b) (ii) (B) of NDPS Act.
51. Case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules.
52. The counsel for convicts wants to address arguments on the point of sentence today itself. Heard. Let the matter be put up for arguments and order on sentence after lunch session today i.e. on 22.02.2020.
Pronounced in the open court. (AJAY GOEL) Dated: 22.02.2020 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
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