Delhi District Court
State vs 1. Jailo W/O Sh. Pappai on 20 September, 2011
IN THE COURT OF MS. SANTOSH SNEHI MANN
SPECIAL JUDGE, NDPS (CENTRAL)
TIS HAZARI COURTS, DELHI
SC No. : 71/2009
FIR No. : 246/2009
U/s : 21 NDPS Act
PS : Paharganj
State Versus 1. Jailo W/o Sh. Pappai
R/o : Stadium Road Gali No. 8,
Dawa Mandi Sunam, PS Sunam,
Distt. Sangroar (Punjab).
2. Tejo W/o Sh. Ajeet Singh
R/o : Stadium Road Gali No. 8,
Dawa Mandi Sunam, PS Sunam,
Distt. Sangroar (Punjab).
3. Palo S/o Late Sh. Nak Singh
R/o : Stadium Road Gali No. 8,
Dawa Mandi Sunam, PS Sunam,
Distt. Sangroar (Punjab).
Date of filing of Charge Sheet : 01.12.2009
Date of taking up matter for the first time : 08.01.2010
Date of conclusion of arguments : 20.09.2011
Date of Judgment : 20.09.2011
Mr. Rajiv Mohan, Ld. Addl. PP for the State.
Mr. Deepak Juneja, defence counsel for all the accused persons.
FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 1 of 21
JUDGMENT:
All the three accused were chargesheeted to face trial under section 21 of The Narcotic Drugs & Psychotropic Substance Act (hereinafter referred as "NDPS Act") on the allegations that on 09.10.2009 at about 4.40 pm at C. F. Road near Vishwakarma Mandir, Paharganj within the jurisdiction of PS Paharganj, each of them was found carrying "Smack" (Heroin) in contravention to the provisions of the NDPS Act.
2. Brief facts:
a. On 09.10.2009 at about 4.20 pm SI Maninder Singh received an information through an informer at chowki Sangatrashan that 23 women would come near C. F Road, Paharganj bridge to sell Smack. He telephonically conveyed this information to SHO who gave orders for raid. SI Maninder Singh constituted a raiding party and reached at the spot at about 4.40 pm. He asked 45 persons passing by to join the raid but none agreed. In the meantime the secret informer pointed at 03 women (accused before the Court) who came out of the FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 2 of 21 outer gate of NDLS and walked towards Main Bazar, Paharganj.
b. Accused were intercepted by the police party and were told about the information with the police. Accused were offered that if they desired, their search could be taken in the presence of a Gazetted Officer or a Magistrate. They were also offered to search the women Constable in the police party before giving their search, but they refused to avail any offer.
c. All the three accused were searched by WCt Snehlata one by one. 20 Grams "Smack"
was recovered from accused Jailo, 13 Grams "Smack" was recovered from accused Palo and 19 Grams Smack was recovered from the accused Tejo. 02 Grams Smack was taken out as sample from each recovered contraband.
The sample Smack and the recovered Smack were sealed by SI Maninder Singh at the spot, who filled 3 FSL forms at the spot.
FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 3 of 21 d. SI prepared a rukka, on the basis of which FIR registered at the police station Pahar Ganj. Sealed pullandas of the contraband were handed over to the SHO. After registration of FIR, further investigation was carried out by ASI Dalvir Singh who reached at the spot and formally arrested the accused persons. Samples were sent to FSL for examination and after completion of investigation, chargesheet was filed in the Court.
3. Copies were supplied to all the accused persons. Prima facie offence punishable under section 21 of NDPS Act was found to be made out against each of them separately. Charges were framed accordingly to which they all pleaded not guilty and claimed trial.
4. Prosecution has examined 10 witnesses in all:
PW1 HC Jagdish was duty officer at PS Paharganj on 09.10.2009 who had registered FIR No. 246/2009 under section 21 of NDPS Act vide Ex. PW1/B, on the basis of tehrir sent by SI Maninder Singh, on which he had made endorsement Ex. PW1/A. After registration of FIR, he sent the asal tehrir and copy of FIR to FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 4 of 21 ASI Dalvir Singh for investigation.
PW3 HC Satender was working as MHC(M) at PS Paharganj on 09.10.2009 who had received six parcels and 03 FSL forms, all bearing seals of 'MS' and 'OPS' alongwith 03 copies of seizure memos from Inspector O. P Singh, SHO for depositing in the malkhana. He made entry in the register at serial No. 3123 vide Ex. PW3/A which was signed by SHO at pointX. On the same day he received personal search articles of the accused persons for depositing in the malkhana from ASI Dalvir Singh with respect to which he made entry in register No. 19. According to this witness, on 03.11.2009 three sample parcels S1, S2 and S3 alongwith 3 FSL forms were sent to FSL through Ct. Raj Kumar vide RC No. 91/21 (copy Ex. PW3/B), with respect to which he received the acknowledgment of FSL (copy Ex. PW3/C). On 25.02.2010, he received three sealed parcels sealed with the seal of FSL alongwith the result. He deposited the parcels in the malkhana and handed over the result to ASI Dalvir Singh.
PW6 Ct. Raj Kumar had deposited three sealed pullandas alongwith form FSL, all sealed with the seal of 'MS' and 'OPS' at FSL Rohini on 03.11.2009, which he had received from MHC(M).
FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 5 of 21 PW7 HC Kuldeep was working as DD writer at PP Sangatrashan on 09.10.2009 who had lodged DD No. 25 at about 4.20 pm (Copy Ex. PW7/A) about secret information received by SI Maninder Singh.
PW4 Ct. Virender, PW5 WCt. Snehlata, PW9 Inspector Maninder Singh and PW10 Ct. Hemander are the witnesses of search, recovery and seizure.
PW2 Inspector Om Prakash Singh was the SHO PS Paharganj on the date of incident.
PW8 ASI Dalvir Singh is the investigating officer (IO).
5. All the incriminating evidence on record was put to the accused person separately. They were examined in the Court and their statements were recorded under section 313 Cr. P. C without oath. All the three accused denied the incriminating evidence against them and claimed to be falsely implicated in this case. They claimed that they were apprehended by the police at railway station when they confronted the police for being rude and abusive towards them. However, none of them desired to lead evidence in defence.
6. I have heard Mr. Rajiv Mohan, Addl. PP for the State and Mr. Deepak Juneja, Defence counsel for all the accused FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 6 of 21 persons. I have gone through the evidence on record.
7. As per the prosecution story, pursuant to a secret information received by SI Maninder Singh, all the three accused persons were apprehended by the police party, constituted by SI Maninder Singh on the instructions of SHO and "Smack" was recovered from the possession of each of the accused.
8. Inspector Maninder Singh (the then SubInspector) has testified during trial as PW9. According to him, after receiving the information through an informer at PP Sangatrashan on 09.10.2009 at about 04.20 pm, he informed the SHO PS Pahar Ganj and lodged DD No. 25 (copy Ex. PW9/A) in this regard and constituted a raiding party including himself, Ct. Hemander (PW10), Ct. Virender (PW4) and Lady Ct. Snehlata (PW5). As deposed by him, the police party taking along the informer reached at the spot at about 04.40 pm where he asked 45 public persons and shopkeepers to join the raiding party, but none agreed. All the three accused were seen coming from outgate of New Delhi Railway Station and they were apprehended on the pointing out of the informer.
9. According to PW9, he informed the accused persons about information with the police and requirement of their search. FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 7 of 21 He also informed them that it was their legal right to give their search in the presence of a Gazetted Officer or a Magistrate. Separate written notices to this effect under Section 50 of NDPS Act were given to the accused persons vide Ex. PW9/B, Ex. PW9/C and Ex. PW9/D, on which they put their thumb impressions. All the accused persons refused to avail the offer and their refusal was recorded on the respective notices at point P to P1.
10. It has come in the deposition of PW9 that Lady Ct. Snehlata took the accused persons to Vishwakarma Mandir, Paharganj at C. F. Road and conducted their search. After conducting their search she informed PW9 that each one of them was carrying a polythene packet concealed in the undergarments. Lady Ct. Snehlata handed over all the three polythene packets to PW9, who checked them one by one and found them containing brownish powdery substance, which appeared "Smack" by smell and appearance. According to this witness, weight of the contraband recovered from the possession of accused Jailo was found to be 20 Grams, out of which he took 02 Grams as sample, which he converted into a parcel and gave Mark S1. The remaining "Smack" was put in the same polythene and converted FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 8 of 21 into another parcel which was given Serial No. 1. He filled the Form FSL and affixed his seal of "MS" on the two parcels as well as FSL Form and seized the parcels vide Ex. PW5/A.
11. Similarly, he checked and weighed the substance recovered from the possession of other two accused, weighed them, took sample of 02 Grams and thereafter made separate sample pullandas and pullandas of the recovered substance, which he affixed with the seal of "MS" and filled two more FSL Forms. Weight of the contraband recovered form the possession of accused Palo was found to be 13 Grams. Pullanda of the sample drawn from it was given Mark S2 and pullanda of the remaining contraband was given Serial No. 2. Weight of the contraband recovered form the possession of accused Tejo was found to be 19 Grams, the pullanda of the sample drawn from it was given Mark S3 and pullanda of the recovered "Smack" was given Serial No. 3. Pullandas of the contraband recovered from the possession of Palo were seized vide memo Ex. PW5/B and pullandas of the contraband recovered from the possession of accused Tejo was seized vide Ex. PW5/C.
12. According to PW9, he prepared rukka vide Ex. PW9/E and gave that to Ct. Virender (PW4) for registration of the FIR FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 9 of 21 alongwith all the six pullandas of the case property, three FSL Forms and copies of three seizure memos with direction to handover them to the SHO.
13. PW4 Ct. Virender, PW5 Lady Ct. Snehlata and PW10 Ct. Hemander have deposed on the lines of PW9 about being members of the raiding party constituted by PW9, apprehension of the accused persons at the pointing out of the secret informer, body search of the accused persons conducted by PW5, recovery of contraband from their possession and seizure thereof.
14. In addition to above, PW5 deposed that she took all the accused persons inside Vishwakarma Mandir, Paharganj and searched them. A polythene containing powdery substance was recovered from inside the shirt of each of them.
15. Ld. defence counsel argued that recovery of the contraband from the possession of accused persons is doubtful as there are contradictions in the statements of the recovery witnesses about presence of secret informer at the spot; search was not made in compliance of Section 50 of NDPS Act; presence of PW4 Ct. Virender is doubtful as none of the documents bear his signature; presence of raiding party is doubtful as none of the members of the raiding party could not tell the features of the spot FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 10 of 21 and lastly consistency in the testimony of PW5 W/Ct. Snehlata and PW10 Ct. Hemander makes the prosecution case doubtful.
16. Contradictions pointed out by the defence counsel in the testimony of recovery witnesses about presence of secret information are that while PW9 Inspector Maninder Singh stated that informer had accompanied the police party to the spot, PW4 Ct. Virender stated that informer met them near Vishwakarma Mandir and according to PW10 Ct. Hemender he saw the informer at the entry gate of New Delhi Railway Station. According to the prosecution story and evidence on record informer had met PW9 at PP Sangatrashan, to which PW4 and PW10 are not privy. Receipt of information by PW9 is corroborated by DD Entry No. 25 (Ex. PW9/A) and nothing has come in the cross examination of PW9 to create any doubt about receiving this information. Moreover, PW4 and PW10 are not the witnesses of secret information and therefore, inconsistency in their statements, as pointed out by the defence counsel is inconsequential. Defence cannot derive any benefit on the basis of inconsistency in the testimony of PW4 and PW10 until and unless testimony of PW9 is shaken on this aspect. Police officials are involved in the investigation of number of cases and therefore inconsistencies are FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 11 of 21 bound to come due to passage of time and failing human memory. It is a settled legal position that inconsistencies which do not affect to the substratum of the case are inconsequential (Reference to "State of Punjab V/s Lakhwinder Singh & Another, 2010(1) Drugs Cases (Narcotics) 192".
17. It was argued by the defence counsel that search was made in contravention to the provisions of Section 50 of the NDPS Act. To support this contention, it was pointed out that written Notices under Section 50 of NDPS Act given to the accused persons do not bear the signatures of the witnesses.
18. In "State of Rajasthan V/s Ram Chandra, AIR 2005 SC 2221" it was held by the Apex Court that there is no specific form prescribed or intended for conveying the information required to be given under Section 50 NDPS Act to the accused. It was held that what is necessary is that accused should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself.
19. In the present case, since contraband is alleged to have been recovered in the body search of the accused persons, conditions stipulated under Section 50 of NDPS Act are applicable. PW9 has deposed that before search of the accused persons, FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 12 of 21 each one of them was informed about her legal right to give her search before a Gazetted Officer or a Magistrate. His deposition on this fact finds corroboration from written Notices under Section 50 of NDPS Act given separately to the accused persons (Ex. PW9/B, Ex. PW9/C and Ex. PW9/D). It is mentioned specifically in these notices that all the three accused were told about the information with the police and they were duly informed that it was their legal right to give their search in the presence of a Gazetted Officer or a Magistrate. PW4 Ct. Virender, PW5 W/Ct. Snehlata and PW10 Ct. Hemender have corroborated PW9 Inspector Maninder Singh about the service of the written Notices under Section 50 of NDPS Act to the accused persons. All the notices bear signature of PW9 and thumb impression of the respective accused. Absence of signatures of PW4, PW5 and PW10 on the written Notices cannot be the reason for discarding their testimony on this fact, when nothing has come in their cross examination as such to create any doubt about their deposition on this fact. The evidence on record is cogent on the aspect that body search of the accused persons was conducted in due compliance of Section 50 of NDPS Act by informing the accused about their legal right to exercise the option to give their search in the FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 13 of 21 presence of a Gazetted Officer or a Magistrate. There is no merit in the contention of the defence to the contrary.
20. One of the arguments of the defence has been that since none of the documents prepared at the spot by PW9 Inspector Maninder Singh bear signatures of PW4 Ct. Virender, his presence is doubtful. As already observed in the previous para, mere absence of signatures on the documents cannot negate his absence at the spot when his presence at the spot is shown by his testimony as well as testimony of three other witnesses i.e. PW5 WCt. Snehlata, PW9 Inspector Maninder Singh and PW10 Ct. Hemander.
21. It was argued in defence that since members of the raiding party could not tell the details of the spot, their presence at the spot is doubtful. I do not find any merit in this argument. Inability of the witnesses to give minute details of the spot and inconsistency in their responses is the natural consequence of passage of time and failing of human memory. Moreover, minute details of the surroundings of the spot are not the subject matter in consideration and thus they are inconsequential {Reference to "Lakhwinder Singh (Supra)"}.
FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 14 of 21
22. The defence counsel argued that testimony of PW5 WCt. Snehlata is not trustworthy as she did not remember whether she signed the departure entry or not; she could not tell the name of any shop near the spot; she did not remember the sequence of documents prepared at the spot; she was unable to distinguish between accused Jailo and Tejo; she was unable to tell as to whom the written Notices under Section 50 of NDPS Act was served first; she did not remember as to who wrote the notices and who wrote the refusal of the accused; she could not tell the time when rukka was sent from the spot; and lastly that she could not nd tell the number of documents prepared by the 2 IO.
23. Deficiencies pointed out by the defence counsel in the statement of PW10 Ct. Hemender are that he did not know whether members of the raiding party signed the notices given to the accused persons; the time when the seizure memo was prepared; the time when the site plan was prepared and the time of preparation of different memos at the spot.
24. Inconsistency and deficiency as pointed out in the testimony of PW5 and PW10 are minor in nature and since they do not relate to the recovery, they are inconsequential. Otherwise also, the witnesses were examined in the Court after one year of FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 15 of 21 the incident and it is not humanly possible to remember all minute details. In the facts and circumstances of this case, they can be safely ignored.
25. Evidence of PW9, which is corroborated by PW4, PW5 & PW10 and documentary evidence Ex. PW9/B, Ex. PW9/C and Ex. PW9/D show that all the three accused were duly informed before their search about their legal right to exercise the option to give their search in the presence of a Gazetted Officer or a Magistrate. Testimony of the members of the raiding party i.e. PW4, PW5, PW9 & PW10 is consistent on the fact that all the accused were bodily searched by PW5 W/Ct. Snehlata and from the person of each of the accused, a polythene packet containing brown powdery substance was recovered. Evidence of these witnesses is consistent on the fact that weight of the contraband recovered from the possession of accused Jailo was 20 Grams, weight of the contraband recovered from the possession of the accused Palo was 13 Grams and weight of the contraband recovered from the possession of the accused Tejo was 19 Grams. 02 Grams was taken out as sample from each packet. The samples and the remaining contraband were converted into separate pullandas and were sealed with the seal of FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 16 of 21 "MS". Evidence on record is consistent that sample pullandas were marked S1, S2 and S3 and pullandas of the remaining recovered contraband were respectively marked Serial No. 1, Serial No. 2 and Serial No. 3. Testimony of PW9 is cogent on the fact that three FSL Forms were filled at the spot, one with respect of each recovery and they were seized vide three different memos (Ex. PW5/A, Ex. PW5/B and Ex. PW5/C). PW4, PW5 and PW10 have corroborated PW9 on the above facts and nothing has come in the crossexamination of any of the witnesses to create any doubt about their testimony in this regard.
26. Registration of FIR (Ex PW1/B) on the basis of tehrir prepared by PW9 is proved by PW1 HC Jagdish, who was the Duty Officer at PS Pahar Ganj on the date of the incident.
27. Testimony of PW9 is cogent on the fact that he handed over 06 sealed pullandas of the case property bearing his seal of "MS", 03 FSL Forms bearing his seal impression and 03 copies of seizure memos to PW4 Ct. Virender for handing over them to SHO. PW4 has corroborated PW9 about receiving the above articles and has deposed that he handed over these articles to the SHO. PW4 has been corroborated on this fact by PW2 Inspector Om Prakash Singh, who was the SHO at PS Pahar Ganj. FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 17 of 21 Testimony of PW2 is cogent on the fact that after receiving the pullandas of the case property alongwith the documents, he affixed his seal of "OPS" and mentioned the case particulars on them. His testimony is specific on the fact that he handed over the sealed parcels alongwith connected documents to the MHC(M) HC Satender (PW3), who made entries in the Malkhana Register to this effect, whereas he himself lodged the DD No. 35A (copy Ex. PW2/A) to this effect. He identified his signatures at pointX in the Malkhana Register entries (Ex. PW3/A). Testimony of PW9, PW4 and PW2 prove compliance of Section 55 of NDPS Act.
28. Formal arrest of the accused persons is proved by PW8 ASI Dalvir Singh vide Ex. PW5/D, Ex. PW5/E and Ex. PW5/F, who had reached at the spot after registration of the FIR. He also proved the site plan Ex. PW8/A and the proceedings conducted by him at the spot.
29. According to PW8, he had sent an information under Section 57 of NDPS Act vide Ex. PW8/B to the senior police officer through SHO and there is no reason to disbelieve his testimony on this account.
30. Evidence of PW3 HC Satender and PW6 Ct. Raj FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 18 of 21 Kumar is consistent on the fact that on 03.11.2009 sealed sample parcels marked S1, S2 and S3, all bearing the seals of "MS" and "OPS" were handed over by PW3 to PW6 alongwith FSL Forms for depositing at FSL Rohini. They are corroborated on this fact by the documentary evidence i.e. Road Certificate No. 91/21 (copy Ex. PW3/B). Testimony of PW6 is cogent on the fact that he deposited the parcels with seals intact alongwith FSL Form at FSL Rohini, Delhi and he is corroborated by the document, acknowledgment receipt of FSL (copy Ex. PW3/C).
31. Ex. PX is the report given by Dr. Madhulika Sharma, Assistant Director (Chemistry), Forensic Science Laboratory, Delhi which is perse admissible under section 293 Cr. P. C. As per this report, 03 sealed parcels marked S1, S2 and S3, all bearing the seals of "MS" & "OPS", which were intact and tallied with the specimen seals on the forwarding letter (FSL Form) were received in the FSL. Each parcel was found containing light brown colour powdery substance in a polythene, weighing approximately 2.6 Grams. The contents were examined by chemical tests, chromatography and instrumental methods and they were found to contain Phenobarbital, Acetylcodeine, Monocetylmorphine and Diacetylmorphine. Percentage of Diacetylmorphine was found to FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 19 of 21 be 12.83% in parcel S1, 9.32% in parcel S2 and 6.7% in parcel S3. Diecetylmorphine is the chemical name of "Heroin", which is an Opium Derivative Manufactured Drug.
32. Sample S1 was drawn from 20 Grams of contraband recovered from the possession of accused Jailo, sample S2 was drawn from 13 Grams of contraband recovered from the possession of accused Palo and sample S3 was drawn from 19 Grams of contraband recovered from the possession of accused Tejo. In view of the percentage of Diacetylmorphine found in the respective samples, the quantity of "Heroin" in the contraband recovered from the possession of accused Jailo comes to 2.56 Grams, quantity of "Heroin" in the contraband recovered from the possession of accused Palo comes to 1.21 Grams and quantity of "Heroin" in the contraband recovered from the possession of accused Tejo comes to 1.15 Grams. The quantity recovered from each accused falls in the category of small quantity as per Notification No. S.O. 1055(E) dated 19.10.2001.
33. In view of the above observation, discussion and findings based on the evidence on record, prosecution succeeds in proving its case against all the three accused persons. Each FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 20 of 21 accused is held guilty for committing the offence punishable under Section 21(a) of NDPS Act.
Announced in the open Court (Santosh Snehi Mann) on 20th September, 2011 Special Judge, NDPS (Central) Tis Hazari Courts, Delhi FIR No. 246/2009; PS Paharganj; State V/s. Jailo & Another Page No. 21 of 21