Delhi District Court
State vs Shahneez Khan @ Shaan on 10 October, 2011
IN THE COURT OF SMT SARITA BIRBAL: ASJ:
Spl. JUDGE (NDPS ACT):KKD COURTS: DELHI
S.C. No: 12/08
State Versus Shahneez Khan @ Shaan
son of Mohd Hanif
r/o House No. L-11/11,
Haziji ki building Jamia Nagar,
Okhla, Delhi
FIR No: 18/08
P.S.: Narcotic Branch
U/s. 21 NDPS Act
Date of submission of charge sheet 15.04.2008
Date on which judgment reserved and delivered 10.10.2011
JUDGMENT
1. The case of prosecution against the accused - Shahneez Khan is that on 17.02.2008 at about 6 p.m. at turn Akshardham temple Road, NOIDA to Delhi, Delhi, he was found in possession of 200 grams heroin (Smack), a contraband, without any licence or permit. It is further the case of the prosecution that specimen sample of the substance alleged to have been recovered from the possession of the accused was sent to the Forensic Science Laboratory (FSL) for examination. As per the FSL report, the sample was found to contain 4.7% diacetylmorphine in the recovered substance.
2. The facts of the prosecution case as revealed from the report under section 173 Cr. P.C. are as follows:-
(a) On 17.02.2008 at about 4.30 p.m. a secret informer came to the S.C. No. 12/08 page 1 of page 12 Narcotic Brach and informed SI Satyawan that a person namely Shahneez Khan, resident of Jamia Nagar and indulging in selling of heroin/smack in Delhi, would come that day between 5 pm. to 6 p.m. at Main Road, in front of Akshardham Mandir to supply the smack to someone. After satisfying himself, SI Satyawan produced the said informer before Inspt. M.C. Katoch who after satisfying himself conveyed this information to ACP/Vivek Vihar - Shri Mahender Singh who ordered to take necessary action. SI Satyawan recorded the DD No. 15A and the proceedings under Section 42 NDPS Act was complied with. The raiding party consisting of SI Satyawan, Head Constable Abdul Hakim, Constable Sohan Pal and Constable Yogesh was constituted. Secret informer and the raiding party left the police station and reached near the spot at about 5.30 p.m.
(b) On the way at different points i.e. near Red Light and Shakarpur Chungi, 5-5 passersby were requested to join the proceedings but none of them agreed. Near the spot again five passersby were requested to join the proceedings but they too refused to join the proceedings.
(c) At about 5.50 p.m. accused was seen coming from the side of NOIDA and was pointed out by the secret informer. Accused waited for about 7-8 minutes and after that when he (accused) started moving fast, he was apprehended. SI Satyawan apprised the accused about the secret information and he also informed him (accused) about his legal rights that he can be searched before a Gazetted Officer or a Magistrate or that before his search he can take search of any member of raiding party. The accused refused to avail this right. Notice u/s 50 NDPS Act was served upon him and he was explained the contents of the notice.
(d) Before commencing further proceedings, again 7-8 persons from S.C. No. 12/08 page 2 of page 12 the crowd gathered there were requested to join the proceedings but none of them agreed and left the said place. Then, on search of the accused 200 grams smack a contraband was recovered from the pocket of his jacket. Two samples of five grams each Mark A & B were taken out from the recovered smack.
Samples mark A and B and the remaining contraband Mark C were separately packed and sealed with the seal of '7CPSNBDelhi'. FSL Form was also filled up using the same seal. All the three sealed parcels and FSL Form were seized vide a memo. Ruqqa was prepared and sent to the PS through Const Sohanpal for getting the case registered. All the three pullandas, FSL Form and copy of seizure memo were also handed over to the said official with the direction to hand over the same to the SHO. SHO affixed his seal '1SHONBR DELHI' on the articles and put FIR number on the same. Thereafter he deposited the parcels with MHCM in intact condition.
The case was registered under section 21 of Narcotic Drugs and Psychotropic Substances Act (hereinafter called as NDPS Act) against the accused. Further investigation of this case was entrusted to SI Sunil Jain who also reached the spot. Accused was arrested.
(f) During the course of investigation, sample Mark A was sent to FSL, Rohini for chemical analysis through Head Constable Jaibir. Chargesheet was filed for the offence punishable u/s. 21 of the NDPS Act.
3. On receipt of Result from FSL it was placed on the judicial file.
4. Vide order dated 16.04.2008 a charge u/s. 21 (b) NDPS Act was framed against the accused. The accused pleaded not guilty to the said charge and claimed trial.
S.C. No. 12/08 page 3 of page 12
5. In this case the alleged recovery of smack from the accused was made on 17.02.2008 i.e. prior to the date of notification dated 18.11.2009 issued by the Government and thus, percentage of diacetylmoprhine in the recovered contraband would be a determining factor of quantity of smack in view of judgment reported as Ansar Ahmed & Ors. V. State (Govt of NCT of Delhi (123 (2005) Delhi Law Times 563); NCT of Delhi V. Ashif Khan @ Kalu [2009 (2) RCR (Crl.) 267]; E. Micheal Raj V Intelligence Officer, Narcotic Control Bureau, 2008 (2) RCR (Criminal) 597 and Ouseph V. State of Kerala [2004 (4) SCC 446]. As per the FSL report the sample was containing 4.7% diacetylmorphine in the sample which makes the quantity of smack in the entire contraband as 9.4 grams. As per notification issued by the Central Government in exercise of powers conferred vide clauses (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985, 9.4 grams smack falls within the category of an 'intermediate quantity' within the meaning of Section 21 of NDPS Act.
6. Prosecution has examined eight witnesses in support of its case. PW 1 - Head Constable Abdul Hakim; PW 2 - Head Constable Jaibir Singh; PW 3 - Head Constable Vijay Pal; PW 4 - Constable Sohan Pal; PW 5 - SI Sunil Jain; PW 6 - HC Karuna Karan; PW 7 -Inspt. M.C. Katoch and PW 8 - SI Satyawan.
7. Out of these examined witnesses PW 1 - Head Constable Abdul Hakim; PW 4 - Constable Sohan Pal and PW 8 - SI Satyawan are material witnesses to the recovery.
8. Remaining witnesses were associated with the investigation of this case.
S.C. No. 12/08 page 4 of page 12
9. PW 2 - Head Constable Jaibir deposed that on 20.02.2008 he took the sample parcel mark A alongwith form FSL to FSL, Rohini and deposited the same there in intact condition.
10. PW 3 - Head Constable Vijay Pal, MHC(M), stated that on 17.02.2008, Inspt. M.C. Katoch called him in his office and handed over him three parcels sealed with seals of '7CPSNB DELHI' and '1SHO NBR DELHI' and FSL form bearing same seals for depositing the same in the police station malkahana. He (MHC(M)) made an entry in register no. 19 in this regard and deposited the same in the malkhana. He also stated that at about 12.10 a.m., SI Sunil Jain deposited personal search articles of accused including carbon copy of notice under section 50 NDPS Act. This witness also deposed that on 20.02.2008, he handed over sample parcel mark A alongwith form FSL to Head Constable Jaibir for depositing the same at FSL, vide R/C No. 175/21 who on the same day deposited its receipt. He further stated that on 01.04.2008 Head Constable Rajinder Singh brought FSL result alongwith the parcel and deposited the same in the malkhana. He proved entries recorded in register no. 19 as Ex. PW 3/A to Ex. PW 3/D.
11. PW 5 - SI Sunil Jain is the IO of the case. He deposed that investigation of this case was assigned to him and he reached the spot. He arrested accused vide arrest memo Ex. PW 1/D. He also deposed that he prepared site plan Ex. PW 5/A. He also stated that personal search of the accused was also conducted vide memo Ex. PW 1/E. He prepared special report under section 57 NDPS Act (Ex. PW 5/C) regarding arrest of accused. This witness also proved the FSL report Ex. PW 5/D.
12. PW 7 - Inspt. M.C. Katoch deposed that on 17.02.2008 SI S.C. No. 12/08 page 5 of page 12 Satyawan produced secret informer before him and after satisfying himself he conveyed the information to ACP - Shri Mahender Singh. This witness further deposed that he forwarded copy of DD no 15 A- Ex. PW 7/A to ACP. At about 9.22 p.m. Constable Sohan Pal produced three pullandas , FSL Form and copy of seizure memo before him on which after satisfying himself he affixed his official seal '1SHO NBR DELHI' and deposited the same with MHCM in intact condition after mentioning the FIR number. He also deposed that he forwarded the special reports u/s. 57 NDPS Act - Ex. PW 7/B and Ex. PW 7/C prepared by SI Satyawan and SI Sunil Jain regarding seizure of contraband and arrest of accused.
13. PW 6 - Head Constable Karuna Karan from the office of ACP Narcotics proved copy of DD No. 15A - Ex. PW 6/A received in the office of ACP (East) on 18.02.2008 vide entry no. 267 Ex. PW 6/B. This witness also deposed that on the same date special reports u/s 57 NDPS Act - Ex. PW 6/D and Ex. PW 6/E were received in the office vide entries no. 272 & 274 - Ex. PW 6/C and same were forwarded to the office of DCP vide entry no. 610 & 611 - Ex. PWE 6/F.
14. All the prosecution witnesses were cross examined by the learned counsel for the accused.
15. In his statement recorded u/s. 313 Cr.P.C. the accused denied case of the prosecution and stated that he is innocent and has been falsely implicated in the present case at the instance of one drug paddler Mohd Shadaf, an informer of the police. He also submitted that no contraband was ever recovered from his possession and that he was studying in Noor Nagar, Sarvodya Vidhalya near Jamia University. He also stated that no notice under S.C. No. 12/08 page 6 of page 12 section 50-NDPS Act was served upon him.
16. The accused did not lead evidence in his defence.
17. I have heard learned Addl. P.P. for the State and Shri Sanjay Gupta, learned amicus curiae counsel for the accused and perused the record.
18. During arguments, learned Addl. PP for the State submitted that prosecution has proved its case beyond doubt and accused is liable to be convicted. He submitted that all the prosecution witnesses have supported the case of prosecution without any material contradiction and all the mandatory provisions of NDPS Act have been complied with.
19. On the other hand learned counsel for the accused contended that accused is innocent and has been falsely implicated in this case. It is also submitted by learned counsel for the accused that despite availability, no independent public witness was examined by the prosecution and that all the witnesses have taken a stereotype stand that public persons were requested to join the proceedings but none agreed. He also submitted that all the documents were manipulated and fabricated to suit the prosecution case and that even no document was prepared at the spot. Learned counsel for the accused also referred to Ex. PW 1/D (arrest memo of the accused) submitting that date of arrest has been altered from '18' to '17' and there is no explanation for the same. It is also contended on behalf of accused that no notice under section 50 NDPS Act (Ex. PW 1/A) was served on him and same does not bear his signatures. He also submitted that the reply Ex. PW 1/B to the said notice is not in the handwriting of accused.
20. I have given my consideration to the contentions advanced by S.C. No. 12/08 page 7 of page 12 learned Addl. PP for the State and learned amicus curiae counsel for the accused.
21. As per the record, PW 1 - Head Constable Abdul Hakim; PW 4 - Constable Sohan Pal and PW 8- SI Satyawan are the material witnesses of recovery. All these witnesses stated that on 17.02.2008 a secret information was received regarding the accused that he would come that day between 5 pm. to 6 p.m. at Main Road, in front of Akshardham Mandir to supply the smack to someone on which after compliance of provisions of Section 42 NDPS Act, raiding party was organised by the police and then at about 6 p.m. accused was apprehended at the spot. SI Satyawan apprised the accused about the secret information and also informed him (accused) about his legal rights that he can be searched before a Gazetted Officer or a Magistrate or that before his search he can take search of any member of raiding party. The accused refused to avail this right. Notice u/s 50 NDPS Act (Ex. PW 1/A) was served upon him and he was explained about the contents of the notice. All these witnesses further deposed that before commencing further proceedings, again 7-8 persons from the people gathered there were requested to join the proceedings but none of them agreed and left the said place. These witnesses further deposed that on search of the accused 200 grams Smack, a contraband was recovered from the left inside pocket of jacket of accused. Two samples of five grams each Mark A & B were taken out from the recovered smack. Samples mark A and B and the remaining contraband Mark C were separately packed and sealed with the seal of '7CPSNBDelhi'. FSL Form was also filled up using the same seal. All the three sealed parcels and FSL Form were seized vide a memo. Ruqqa was prepared and sent to the Police Station through Const Sohanpal for getting the S.C. No. 12/08 page 8 of page 12 case registered. All these witnesses also deposed that all the three pullandas, FSL Form and copy of seizure memo were also handed over to the said official with the direction to hand over the same to the SHO. PW 1 - HC Abdul Hakim and PW 8 - SI Satyawan are also witnesses to the arrest of accused. All these witnesses identified the case property as Ex. P 1 to P 3 as recovered from the possession of accused.
22. In this case the no public witness was joined during the alleged search and seizure of contraband from the possession of accused. The recovery witnesses namely PW 1 - Head Constable Abdul Hakim; PW 4 - Constable Sohan Pal and PW 8 - SI Satyawan deposed that on the way before reaching the spot, at different points 5-5 passersby were requested to join the raiding party but none agreed and they all left away without telling their names and addresses. All these witnesses further stated that near the spot again five devotees were requested. These witnesses further state that after apprehending the accused again 7-8 public persons from the crowd gathered there were requested to join the proceedings but none of them agreed and they all left the spot after disclosing their difficulties. Thus, the statements of material witnesses would show that the public persons were available at the spot.
23. It is well settled that police officials are competent witnesses and conviction can be based on the sole testimony of the police officials and non examination of independent witnesses may not a ground for acquittal. However, in the absence of any independent public witness to the search and seizure of contraband, the court has to scrutinise the evidence on record with due care and caution.
24. As stated above, evidence on record would show that despite S.C. No. 12/08 page 9 of page 12 availability, the police did not make sincere efforts to join any public witness during the search and seizure proceedings. The prosecution witnesses even have not disclosed about the nature of difficulties of public persons who refused to join the proceedings. These witnesses even did not disclose about the physical appearance of those public persons or whether they were males or females. In a case under NDPS Act, recovery of contraband in the presence of an independent witness assumes significance. [Ritesh Chakarvati V. State of Madhya Pradesh [2006 (4) RCR Criminal Supreme Court 480] and Sarju @ Ramu V. State of UP [2009 (4) C.C. Cases (SC) 204].
25. As per statement of PW 1- Head Constable Abdul Hakim; PW 4 - Const Sohan Pal and PW 8 - SI Satyawan notice under section 50 NDPS Act (Ex.PW1/A) was served upon the accused and he was apprised about his legal right that his search can be conducted before a Gazetted Officer or a Magistrate. However, the accused did not avail this opportunity and gave his reply Ex. PW 1/B. However, the accused has although taken a stand that said notice was not served upon him and that same even does not bear his handwriting and signatures. Suggestions were also put in this regard to the recovery witnesses during their cross examination by the learned counsel for accused.
26. Another defence has raised by the accused person is that he was not arrested from the spot and that date of his arrest has been altered from '18' to '17' in the arrest memo (Ex.PW1/D) to fill up the lacuna by the prosecution. I have perused the arrest memo (Ex. PW 1/D). There is an overwriting in the arrest memo - Ex. PW 1/D in the column no. 6 mentioning the date of arrest of accused. Date of arrest has been altered from '18' to '17'. This document S.C. No. 12/08 page 10 of page 12 is stated to have been prepared by SI Sunil Jain, IO of the case at the spot. SI Sunil Jain appeared as PW 5 and during his cross examination, he admitted that there is an overwriting at point DA in arrest memo Ex. PW 1/D. He further submitted that he can not say whether figure '18' has been overwritten as '17' and thus he was unable to explain this overwriting. SI Satywana (PW 8), who was head of the raiding party and also a witness to this document deposed that he can not say whether figure '18' has been altered as '17' at point DA in Ex. PW 1/D. Thereafter, he again stated that there is an alteration and this is a human error. However, this explanation is not sufficient to remove the doubt which is created about arrest of accused and alleged recovery of contraband from the possession of accused.
27. Apart from this as per the arrest memo (Ex. PW 1/D) the information about arrest of accused was given to his cousin Samir Niyaz, whereas, as per report under section 57 NDPS Act (Ex. PW 5/C) prepared by SI Sunil Jain, the information of arrest of accused was conveyed to his father. It is nowhere mentioned in Ex. PW 5/C that such information was given to cousin of accused Samir Niyaz. During cross examination IO - SI Sunil Jain (PW 5) tried to explain this inconsistency by deposing that information was given to the father of the accused telephonically, however no further particulars such as telephone number of father of accused etc have been disclosed. This inconsistency also creates some doubt about the alleged apprehension of the accused at the spot.
28. Besides the above, as per the prosecution case two samples of five grams each - Mark A & Mark B were taken out from the recovered contraband at the spot and sample Mark A was sent to FSL for chemical examination. However, as per the FSL report Ex. PW 5/D, sample Mark A which S.C. No. 12/08 page 11 of page 12 was received in FSL, was having 6.46 grams weight with polythene. There is no explanation in the statement of prosecution witnesses regarding this variation of weight in of sample mark A.
29. In view of the above discussion, I am of the view that the prosecution has not been able to prove its case beyond reasonable doubt against the accused Shahneej that he was found in possession of smack at the spot. Accordingly, he is acquitted of the offence alleged against him after giving benefit of doubt.
30. Case property be confiscated to the State, after the expiry of period of revision/appeal, if any.
File be consigned to record Room.
Announced in the open court (Sarita Birbal)
on 10.10.2011 ASJ: Spl. Judge (NDPS Act):Delhi
10.10.2011.
S.C. No. 12/08 page 12 of page 12