Delhi District Court
State vs Virender @ Kalu on 19 April, 2012
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 05, ROOM NO. 513,
DWARKA, DELHI.
STATE
VERSUS
VIRENDER @ KALU
FIR No. 16/08
P.S.: Inderpuri
U/S: 21/61/85 NDPS Act
1. Serial No. of the case : 02405R0246862010
2. Date of commission of offence : 11.02.2008
3. Name of the Complainant : HC Jai Kishan,
P.S Inderpuri, New
Delhi.
4. Name of the accused, and
her parentage and residence : Virender @ Kalu,
S/o Sh. Rajender
R/o W86/112, Jhuggi,
Railway Halt, Inderpuri,
New Delhi.
6. Date when judgment : 09.04.2012
was reserved
7. Date when Judgment : 19.04.2012
was pronounced
8. Offence Complained of : Section 21/61/85 NDPS
or proved Act
9. Plea of accused : Pleaded not guilty
10. Final Judgment : Convicted U/s 21/61/85
NDPS Act.
FIR No. 16/08
PS- Inderpuri
State Vs. Virender @ Kalu Page 1/8
Brief Statement of reasons for the decision of the case
1. Briefly stated the case of the prosecution are that on 11.02.2008, at about 3.15 pm at katcha rasta, near nala, D block, JJ colony, Inderpuri, the accused was found in possession of 10gms of smack in contravention of notification issued by Delhi Administration. Accordingly, FIR No. 16/08, PS Inderpuri was registered. The challan was filed on 07.04.2008.
2. On appearance of the accused, a charge for the offence under Section 21/61/85 of NDPS Act was framed against him to which he pleaded not guilty and claim trial.
3. Prosecution has examined seven witnesses namely PW1 HC Jaikishan, PW2 Ct Rakesh, PW3 HC Ram Singh, PW4 ASI Surajbhan, PW5 Inspector Hiralal, PW6 ACP Jitender Mani and PW7 SI Amarpal Singh to prove the case against the accused. The evidence of each of PWs is very relevant and the same is analyzed and discussed later on at appropriate places.
4. After the Prosecution evidence was closed the statement of accused was recorded under Section 313 Cr.P.C where he has denied his involvement in the case and stated that he has been falsely implicated being BC of the area. He further stated that he do not wish to lead any evidence in his defence. Thereafter final arguments were heard.
5. Ld APP for the State addressed useful and pertinent arguments. Ld. APP for the state has argued that the case property has been correctly identified by the witnesses including the recovery witnesses i.e PW1 and FIR No. 16/08 PS- Inderpuri State Vs. Virender @ Kalu Page 2/8 the case has been proved beyond doubt against the accused and prays for conviction of the accused.
6. On the other hand, Ld counsel for the accused submits that accused has been falsely implicated by the police and nothing was recovered and prays for acquittal.
7. PROSECUTION EVIDENCE:
7.1 Seizure of Case Property: PW1 is the police official who alongwith Ct Rakesh apprehended the accused firstly. He stated that on 11.02.2008, he was on patrolling duty alongwith Ct Rakesh and at about 3.15 pm on suspicion they stopped the accused at D block booth and on cursory search, one polythene having smack was recovered from the left pocket of his pant. He further stated that SI Amarpal also reached the spot and he produced the accused alongwith case property to SI Amarpal who gave notice to accused U/s 50 NDPS Act vide Ex. PW1/A. PW1 proved his presence at the time of taking out the sample and sealing of the case property. He also stated that SHO also reached at the spot and he counter sealed the seized case property with his seal. He also proved his statement Ex. PW 1/C and his presence at the time of preparation of rukka and registration of FIR. He also proved his presence at the time of arrest and personal search of the accused vide Ex. PW1/E and PW1/F. PW1 correctly identified the accused as well as the case property recovered from the possession of the accused.
7.2 PW2 is the another police official who accompanied complainant on patrolling. He also gave his testimony on the lines of PW1 and proved his presence at the time of seizure of the case property, arrest and personal FIR No. 16/08 PS- Inderpuri State Vs. Virender @ Kalu Page 3/8 search of the accused. He also correctly identified the accused as well as the case property. During his cross examination, he stated that accused was apprehended on suspicion and all the paper work was done at the spot only. He denied the suggestion that nothing was recovered from the possession of the accused and he was falsely implicated as accused was previously known to him.
7.3 PW3 is MHC(M) concerned at relevant time. He stated that on 11.02.2008 at about 6.30 pm case property was deposited in the malkhana by SHO, PS Inderpuri vide entry No. 1316. He also stated that sample of case property was handed over to SI Amarpal alongwith the FSL form for getting the sample examined in the Excise Lab and as long as the case property remained in his possession, it was not tampered with. 7.4 PW4 is the DO. He stated that on 11.02.2008, at about 5.50 pm Ct Rakesh brought rukka for registration of FIR and he registered the FIR and made endorsement on the rukka Ex. PW4/B. 7.5 PW5 is the SHO concerned. He stated that on receipt of information from DO about the present case, he proceeded to the spot vide DD No. 24A and counter sealed the case property with his seal and after use seal was handed over to SI Amarpal. He also proved the deposit of the case property and FSL form in malkhana vide DD entry No. 27A vide Ex.
PW5/A and PW5/B respectively. During his cross examination, he admitted that the case property was not firstly sealed in his presence and therefore he could not tell the contents of the pullanda. But stated that IO had told that smack was sealed in the pullanda. He also categorically stated that one pullanda contained 2 gms of smack and the remaining pullanda contained 8gms of smack.
7.6 PW6 is ACP. He stated that an intimation was given to him by the FIR No. 16/08 PS- Inderpuri State Vs. Virender @ Kalu Page 4/8 SHO,PS Inderpuri about the recovery of case property vide Ex. PW6/A. 7.7 PW7 is the IO of the case. He stated that on that day, he was on patrolling duty and at about 3.20 pm when he reached at JJ Block police booth, he saw HC Jaikishan and Ct Rakesh alongwith one person at about 2025 steps ahead of the police booth. He further stated that HC Jaikishan briefed him of the same and handed over the accused alongwith one polythene having some psychotropic substance which on checking was found smell of smack. He further proved the notice U/s 50 NDPS Act vide Ex. PW1/A and statement of HC Jaikishan. He further stated that he requested 3/ 4 passersby to join investigation but all refused and left the spot without disclosing names and addresses. He also proved the weighing of the smack and taking of sample. He also proved the preparation of rukka, site plan, arrest and personal search of the accused as well as information U/s 57 NDPS Act to the ACP. PW7 also correctly identified the accused as well as the case property. During his cross examination, he stated that he was on private scooter during patrolling and DO made the departure entry of his patrolling. He also stated that he was having the seal at that time and notice U/s 50 NDPS Act was given at the spot. He further stated that site plan was prepared at the instance of HC Jaikishan and apart from police officials 3/ 4 passersby were asked to join investigation but all left without disclosing their names. He further stated that no public person were present at the time of arrest. He also denied the suggestion that accused has been falsely implicated and he is deposing falsely.
8. Whether compliance of Section 50 and 57 NDPS Act proved or not: PW1 as well as PW7 proved the compliance of Section 50 NDPS Act FIR No. 16/08 PS- Inderpuri State Vs. Virender @ Kalu Page 5/8 as both have stated that notice U/s 50 NDPS Act was given to the accused before making his personal search. Accordingly, arguments of Ld counsel that there was no compliance of Section 50 NDPS Act is rejected as it is proved that notice was given to the accused U/s 50 NDPS. Notice is Ex. PW1/A wherein accused himself stated that he does not want anybody to be called for making his personal search. The statutory compliance of Section 57 NDPS Act is also proved as IO has sent the intimation for requirements of Section 57 NDPS Act on any arrest or seizure which was duly forwarded by the SHO and ACP concerned vide Ex. PW7/A.
9. Whether link evidence is available: PW3 is MHC(M). He categorically stated that he received the case property from the SHO and deposited the same and stated that as long as the case property remained in his possession, it was not tampered with. He has also stated that he handed over the case property to SI Amarpal for depositing in Excise Lab. The report of Excise Lab was tendered by Ld APP for the State. As per the result of examination, the sample which was shown as Ex. 1 in the report was found be containing Paracetamol, Caffeine, Acetylcodeine, Monoacetymorphine and Diacetylmorphine. It was further mentioned in Ex. 2 that on Gas Choromatography examination, which was mentioned Ex. 1 found to be containing Diacetylmorphine 1.1%.
10. Absence of Independent Witnesses: Although, no public witness have been joined in the investigation, however, the said fact itself cannot be a ground for rejecting the unimpeached testimony of the PWs. The provisions as provided under Section 100 (4) Cr. PC is only directory and failure to comply with the said provisions will not invariably be fatal FIR No. 16/08 PS- Inderpuri State Vs. Virender @ Kalu Page 6/8 to the case of the prosecution. It has been held by the Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh reported in AIR 1994 SC 1872 that "The scope of these two sections (section 100 and 165 of Code of Criminal Procedure) have been examined in a number of cases. In Wasan Singh v. State (1981) 2 SCC this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Suder Singh v. State of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In State of Maharashtra v. P.K. Pathak, AIR SC 1224, it is held that absence of any independent from the locality to witness the search does not affect the trial and the conviction of the accused under the Customs Act. In Radha Kishan vs. State of Uttar Pradesh, 1963 SC 822, it is held that irregularity in a search would , however, cast a duty upon the Court to scrutinise the evidence regarding the search very carefully. In Matajog Dubey v. H.C. Bahri, AIR 1956 SC 44 it is held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
There is no reason to doubt the testimony of PWs merely because they are police personnel. It has been held by the Hon'ble Supreme Court FIR No. 16/08 PS- Inderpuri State Vs. Virender @ Kalu Page 7/8 in Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 SC 1311;
"........The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down....."
11. In the light of above discussion and the evidence on record, I am of the considered view that the prosecution has successfully proved the case against the accused beyond reasonable doubt and no probable defence was put forth by him. Simply claiming false implication does not discharge his burden.
12. Accordingly, the accused is convicted for the offence under Section 21/61/85 NDPS Act. Put up for arguments on sentencing today at 2.00 pm. ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT) COURT ON 19.04.2012 METROPOLITAN MAGISTRATE05 DWARKA COURTS, DELHI.
FIR No. 16/08PS- Inderpuri State Vs. Virender @ Kalu Page 8/8 FIR No. 16/08 PS- Inderpuri State Vs. Virender @ Kalu Page 9/8