Delhi District Court
Corroboration From Independent ... vs . State Of on 10 April, 2013
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE (NDPS): DELHI
SC No.18/12
FIR No. 97/2012
PS Nabi Karim
U/s 21 of NDPS Act.
In the matter of:
State
Versus
Mahesh @ Monu
S/o Inder Singh
R/o H. No. BB266, Ashoka Basti,
Nabi Karim, Delhi. .......Accused
Date of institution : 02.07.2012
Date of Judgment : 10.04.2013
J U D G M E N T
Mahesh @ Monu accused has been facing trial for an offence under Section 21 (b) of Narcotics Drugs and Psychotropic Substances Act ( hereinafter referred to as 'the Act').
2. Accusation levelled against the accused is that on 23.04.2012 when apprehended at about 8.10 pm, in the area of Gali No. 10, Multani Dhandha, Nabi Karim, Delhi, he was found in possession of 18 grams of heroin. As per prosecution version, he was apprehended by the raiding party consisting of SI FIR No. 97/2012 1 Mohit Yadav, Ct. Ramji Lal and Ct. Hirdesh on the basis of secret information received by the ASI.
Secret information was received at 7.15 am while SI was present in the area in connection with patrolling. It was to the effect that a one person would come from the side of Chinnot basti and reach the corner of Street No. 10, Multani Dhanda, to deliver smack. Secret information was communicated by the SI to Inspector Vivek Pathak and ultimately to ACP Bir Singh.
When it was 08.05 pm, raiding party apprehended the accused at the pointing out of the secret informer at Gali No. 10, Multani Dhanda, Nabi Karim.
Personal search of the accused led to recovery of 18 grams of smack contained in a transparent polythene from the right side pocket of his half pant.
Prior to recovery, SI Mohit Yadav served notice under Section 50 of the Act, to the accused apprising him of the legal right available under this provision of law. Accused refused to exercise his legal right. The refusal was recorded.
From the total quantity of 18 grams of smack, SI Mohit Yadav took out two samples, each of 2 grams, turned the same into parcel and sealed them with his seal bearing impression MY. The residue and the recovered polythene were also turned into a parcel and sealed with the aforesaid seal. Impression of the seal was affixed on the FSL form filled in by the SI at the spot. After use, the seal was handed over to Ct. Ramji Lal. Case property was seized vide seizure memo.
FIR No. 97/2012 2
Rukka was prepared and sent to PS Nabi Karim through HC Hirdesh. It led to registration of this case. At the same time, HC Hirdesh also took along aforesaid sealed parcels, form FSL and copy of seizure memo. On reaching the PS, these items were produced before SHOInspector Khushal Singh who sealed these parcels with the seal bearing impression KS and also affixed its impression on FSL form. He then deposited the case property with MHC(M).
After registration of the case, ASI Ashwani Kumar took over investigation of the case. On reaching the spot, the ASI collected all the documents from SI Mohit Yadav, prepared arrest memo and personal search memo. Personal search of the accused led to recovery of copy of notice under Section 50 of the Act. After completion of proceedings at the spot, accused was got medically examined and on reaching police station lodged at lock up.
Report under Section 57 of the Act was prepared by ASI Ashwani Kumar and ultimately forwarded to the office of ACP.
One of sample parcels was got sent to FSL, Rohini on 09.05.2012 through Ct. Ram Niwas and deposited at FSL on the same day.
3. On completion of investigation, challan was put in court. Copies of documents relied upon by the prosecution were supplied to the accused free of costs.
Charge
4. Prima facie case having been made out, charge for an offence U/s. 21 (b) FIR No. 97/2012 3 of Narcotics Drugs Psychotropic Substances Act was framed against the accused on 25.07.2012, to which he pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case, prosecution examined, following witnesses: PW1 Ct. Ram Niwas Who collected sealed parcel on 24.11.2011 and deposited the same at FSL, Rohini on the same day PW2 Ct. Sunil To prove receipt of report under Section 57 of the Act at the office of ACP.
PW3 HC Rajnish Kumar To prove recording of FIR Ex PW3/A on the basis of rukka Mark A. PW4 HC Johri Lal Who dealt with the case property during the period it remained in malkhana.
PW5 Ct. Hirdesh Witness to arrest and recovery
PW6 SI Mohit Yadav First Investigating Officer
PW7 Ct. Ramji Lal Witness to arrest and recovery
PW8 ASI Ashwani Kumar Second Investigating Officer
PW9 Inspector Khushal Singh To prove sealing of the parcels at police
station and deposit of parcel, FSL form
and copy of seizure memo with MHC(M)
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused denied all the incriminating circumstances regarding recovery of smack as appearing in evidence against him and claimed false implication. Accused pleaded that he was picked up from his FIR No. 97/2012 4 house, taken to police station and then falsely implicated in this case.
Defence Evidence
7. In his defence, accused examined his mother Smt. Santosh as DW1 about his false implication because of a complaint submitted by his brother Sonu against the police.
8. Arguments heard. File perused.
Discussion Receipt of Secret Information
9. As per prosecution version, recovery of smack was made from the accused at the corner of street no. 10, Maultani Dhanda on 23.04.2012 at 8.10 pm, on the basis of secret information received by SI Mohit Yadav at about 7.15 pm, while he, Ct. Hiresh (PW5) and Ct. Ramji Lal (PW7) were patrolling in the area.
According to PW6 SI Mohit Yadav on 23.04.2012, he, Ct. Hirdesh and Ct. Ramji Lal were patrolling in the area of Nabi Karim. At about 7.15 pm they reached Multani Dhanda, where secret informer met them and informed that one person would come from the side of Chinnot Basti and reach the corner of street no. 10 of Multani Dhanda to delivery of smack someone. So he recorded the secret information and communicated the same to the Duty officer so as to communicate the same to the SHO.
FIR No. 97/2012 5
PW5 Hirdesh and PW7Ct. Ramji Lal have corroborated the statement of SI Mohit Yadav regarding receipt of secret information on that date while they were patrolling in the area. PW9 Inspector Khushal Singh, SHO has also supported the prosecution version by deposing that at about 7.40 pm, HC Rajneesh, Duty Officer of the police station informed him about information received from SI Mohit Yadav telephonically that a person was coming towards street no. 10 from the side of Chinnot Basti to supply smack.
Ex PW6/B is the secret information recorded by SI Mohit Yadav to the effect that a person would come from the side of Chinnot Basti and deliver the smack to someone at the corner of street no. 10, Multani Dhanda, Nabi Karim.
From the above evidence, it stands established that SI Mohit Yadav received secret information and the same was communicated to the SHO through Duty Officer.
Arrival of accused
10. According to PW6 SI Mohit Yadav, he and his companions accompanied by secret informer reached by the side of public lavatory at the corner of street no. 10 and waited for arrival of the person. Accused arrived at about 8.05 pm from the side of Chinnot Basti. Secret informer pointed out towards the accused and then left. According to SI, they waited for arrival of someone, for whom accused was waiting. They nabbed him when he was about to leave the spot.
To the same effect are statements of PW5Ct. Hirdesh and PW7 Ct. Ramj FIR No. 97/2012 6 Lal.
This fact also finds mention in rukka Ex PW6/A which was despatched from the spot at 10.25 pm and led to registration of this case at about 10.45 pm. Service of Notice
11. Prosecution has placed on record notice under Section 50 of the Act as Ex PW5/A. According to PW6 SI Mohit Yadav after the accused was apprehended, he was apprised of the secret information against him and the provisions of Section 50 of the Act that if he so desired Gazetted Officer or Magistrate could be called in connection with his search.
PW5 Ct. Hirdesh has also deposed about it. PW7 Ct. Ramji Lal has too deposed that accused was informed that if he so desired, any senior officer or Gazetted officer could be called in connection with his search, as secret information was available against him.
The contents of the notice Ex PW5/A make it clear that the accused was apprised of his legal right that any Gazetted officer of Magistrate could be called for the purpose of his search. The notice bears attestation of Ct. Hirdesh and Ct. Ramji Lal. It appears that memory of Ct. Ramji Lal did not help him that the accused was apprised that even a Magistrate (not a senior officer) could be called in connection with search of the accused.
It is in the statement of PW5, 6 & 7, that the accused opted not to call any Gazetted officer or Magistrate. Refusal of the accused is Ex PW5/B, which also FIR No. 97/2012 7 bears attestation of Ct. Hirdesh and Ct. Ramji Lal.
From the above it stands establishes that this is a case of due compliance with provisions of Section 50 of the Act.
Recovery
12. As per prosecution version, accused was found in possession of 18 gms. of smack which he was carrying in a polythene kept in right side pocket of his pant. According to PW5 Ct. Hirdesh, personal search of the accused led to recovery of a polythene containing smack, from the right side pocket of half pant which the accused was wearing. Investigating Officer weighed the smack by using electronic weighing machine and it was found to be 18 gms.
According to PW7 Ct. Ramji Lal, PW6 SI Mohit Yadav conducted search of person of the accused. He was wearing half jeans pant. From the right side pocket of the pant, a polythene containing powder i.e. smack, was recovered. Contents of the polythene, when weighed, without polythene, on an electronic scale, were found to be 18 gms.
PW6 SI Mohit Yadav has also stated about recovery of 18 gms of smack in the manner narrated by PW5 & PW7 Ct. Ramji Lal. Factum of recovery of 18 gms of smack also finds mention in recovery memo Ex.PW5/C. This memo bears attestation of PW5 Ct. Hirdesh and PW7 Ct. Ramji Lal. This fact also finds mention in the rukka which was dispatched from the spot immediately after the recovery and sealing of parcels.
FIR No. 97/2012 8
According to PW5, PW6 & PW7, two samples, each of 2 gms, were separated from the lot given Mark A and B and sealed with seal of SI Mohit Yadav bearing impression 'MY'.
Residue was also converted into parcel, given Mark 1 and sealed with aforesaid seal. This is in consonance with version which stands recorded in the recovery memo Ex.PW5/C and rukka Ex.PW6/A. It goes to show that the proceedings were conducted in presence of Ct. Hirdesh and Ct. Ramji Lal.
Nonjoining of independent witnesses
13. Learned defence counsel has contended that despite availability, no witness from the public was associated which creates doubt in the prosecution version that any contraband was recovered from the accused in the manner stated by PW5, PW6 & PW7 in support of his submission, learned defence counsel has referred to cross examination of these witnesses where it finds mention that persons from the public were available in street no.10.
As noticed above, accused was apprehended at the corner of street no.10, Multani Dhanda, Paharganj. According to SI Mohit Yadav, even before the accused was apprehended, he apprised 45 passersby of the secret information and asked them to join the party, but they did not join furnishing valid reasons and left. In his cross examination, PW6 SI Mohit Yadav admitted that houses and shops were situated in street no.10. According to the witness, shopkeepers dealing in sale of pan were asked to join the party, but their names and FIR No. 97/2012 9 particulars were not recorded. Even no action was taken against anyone of them.
PW5 Ct. Hirdesh also admitted in his cross examination that the place where accused was apprehended, is residential and commercial area. But according to him, no shopkeeper was asked to join the investigation. He could not tell names and address of the passersby who refused to join the party. He further stated that after the accused was apprehended no one from the public was joined.
PW7 Ct. Ramji Lal also admitted about existence of houses and shops in street no.10 and further that shops were lying open, but shopkeepers were not asked to join the party, in his presence. Names and particulars of 810 passersby, who refused to join the parties, were not recorded. He further stated that no one from the public was asked to join the party after the first attempt made to join from 810 passersby.
From the above testimony of three PWs, it is clear that persons from the public i.e. shopkeepers were available, but none was joined. SI Mohit Yadav could issue notices to those persons atleast shopkeepers, who refused to join, but no action was taken against them.
So this is a case based on testimony of police officials. As to the evidentiary value of testimony of police officials, where there is no corroboration from independent witness in the case of Ajmer Singh vs. State of FIR No. 97/2012 10 Haryana (2010) 3 SCC 746, Hon'ble Apex Court observed as under: "The submission that the evidence of the official witnesses cannot be relied upon as their testimony has not been corroborated by any independent witness cannot be accepted. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. It may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence." Having regard to decision in Ajmer Singh's case, this court proceeds to find out if the testimony of police officials is worth reliance.
Tampering with case property
14. Learned defence counsel has contended that as per prosecution version after use, the seal was handed over by SI Mohit Yadav to Ct. Ramji Lal. But Ct. Ramji Lal is stated to have returned the seal to the SI after two days while the sample parcels were still in the malkhana. The contention is that when there is no corroboration from the independent source, from return of seal by the Constable, after two days, possibility of tampering with case property in the malkhana cannot be ruled out.
FIR No. 97/2012 11
On the other hand, learned Addl. P.P. has submitted that SI Mohit took over steps to rule out possibility of tampering with case property and as such there is no merit in the contention raised by learned defence counsel.
The first step taken by SI Mohit Yadav to rule out possibility of tampering with case property was that he sealed the sample parcels and the parcel containing residue, in presence of the two Constables and handed over the seal to one of them namely Ct. Ramji Lal.
It is in the statement of PW6 Ct. Hirdesh and PW6 SI Mohit Yadav that after use, the seal was handed over to Ct. Ramji Lal. Factum of delivery of seal to Ct. Ramji Lal stands recorded in recovery memo Ex.PW5/C, followed by rukka Ex.PW6/A. Form FSL was also filled at the spot and impression of the seal used by SI Mohit Yadav was affixed on it.
Learned defence counsel pointed out that PW7 Ct. Ramji Lal has not supported the prosecution version regarding affixation of impression of seal on FSL form.
It is true that in his chief examination the Constable stated about this fact only when he was put leading question by learned Addl. P.P. It appears that memory of the Constable did not help him on this point and he stated about the same on having been remanded by learned Addl. P.P. It is in the statement of Ct. Ramji Lal that SI Mohit Yadav had affixed his seal bearing impression 'MY' FIR No. 97/2012 12 on the sample parcels, the parcel containing the residue and that after use the seal was handed over to him. Simply because he could not recollect, of his own, about affixation of impression of seal on FSL form does not adversely affect the case of prosecution when he has supported the case of prosecution on all other aspects including sealing of the case property and delivery of the seal to him.
PW7 Ct. Ramji Lal has deposed that he returned the seal to SI Mohit Yadav, after two days. PW6 SI Mohit Yadav stated in his cross examination that Ct. Ramji La did not return the seal to him during that night. SI was not questioned as to when the seal was actually returned to him by the Constable. Had he been questioned, the SI could reply.
From the evidence available in the form of statements of PW6 & PW7 and of PW4 HC Johri Lal, the concerned MHC(M), it stands established that the seal was not returned by the Constable to SI Mohit Yadav before the case property was deposited by Inspector Khushal Singh with MHC(M).
It is significant to note that the three parcels received by the SI at the spot were sent by him from the spot alongwith FSL form and copy of seizure memo to the SHO through Ct. Hirdesh and the Inspector sealed the same with his seal bearing impression 'KS' and also affixed its impression on the FSL form. In this regard prosecution version stands proved from the statements of PW5 Ct. Hirdesh, PW6 SI Mohit Yadav and PW9 Inspector Khushal Singh.
According PW9 Inspector Khushal Singh, he was apprised of the secret FIR No. 97/2012 13 information while he was in the area, by the Duty Officer. At about 10.55 p.m. when he returned to the police station Ct. Hirdesh appeared before him and produced three sealed parcels, FSL form having impression of same seal and original information U/s 42 of the Act. According to Inspector he checked seals on the sealed parcels, and then sealed them with his seal impression KS. He also affixed its impression on FSL form. Not only this, he collected FIR number and mentioned same on all the three parcels, FSL form and copy of seizure memo. Thereafter, he deposited all these items with the MHC(M). There is nothing in the statement of PW9 Inspector Khushal Singh to disbelieve his version regarding production of the three sealed parcels FSL form, copy of seizure memo, sealing thereof by him at the police station, affixing its impression on the FSL form, recording of FIR number thereon and deposit of case property with the MHC(M).
Deposit of the case property alongwith FSL form stands established from the statement of PW4 Johri Lal, the concerned MHC(M) and contents of entry at Sr. no.1437 Ex.PW4/A recorded in register no.19. Contents of the recovery memo have been reproduced in 4th column of this entry. It finds specific mention thereafter that seal of 'KS' was also affixed.
Despatch of sample
15. As per prosecution version, sample parcel was got despatched from malkhana on 09.05.2013 through Ct. Ram Niwas vide road certificate No. 31/21. FIR No. 97/2012 14 According to PW4 HC Johri Lal, the sample parcel was got despatched through Ct. Ram Niwas vide road certificate, copy whereof is Ex PWC/B. He has also proved Ex PW4/C i.e. copy of acknowledgment delivered to him by Ct. Ram Niwas after having deposited the sample parcel at FSL. Statement of PW4 has gone unchallenged for want of cross examination. Even otherwise, PW10 SI Anuj Yadav who took over investigation subsequently has deposed about despatch of sample parcel through Ct. Ram Niwas.
Ct. Ram Niwas, while appearing as PW1, stated that on 09.05.2012, he deposited a sealed parcel and FSL form at FSL on 09.05.2012, after having collected the same from MHC(M) of PS Nabi Karim. He further deposed that on return he deposited with MHC(M) acknowledgment issued by FSL and road certificate.
It may be mentioned here that as per prosecution version, only one of the two sample parcels, was sent to FSL alongwith FSL form and deposited there on 09.05.2012. But, according to PW1 Ct. Ram Niwas on that date he had collected two sealed parcels from the MHC(M). Further according to him, parcels were bearing seals of MI and another seal, impression of which he did not remember.
The documentary evidence in the form of entry no. 1437 Ex PW4/A recorded in register no. 19 would reveal that only one sample parcel of two grams, bearing Mark A and sealed with the seal bearing impression 'MY' and 'KS', and FSL form were handed over by the MHC(M) to Ct. Ram Niwas for FIR No. 97/2012 15 their deposit at FSL.
Statement of PW4 HC Johri Lal, concerned MHC(M) in this regard has gone unchallenged. The other document in proof of despatch of one sample parcel bearing seals of 'MY' and 'KS' is copy of road certificate is Ex PW4/B. It clearly stands recorded in it that only one sample parcel, FSL form and certain documents were handed over to Ct. Ram Niwas for their deposit at FSL. Copy of acknowledgment ExPW4/C also establishes that only one ( and not two) parcel was deposited at FSL. Report Ex PW4/D issued by FSL on 15.06.2012 would reveal that the only seal parcel deposited at FSL by Ct. Ram Niwas on 09.08.2012 was bearing seals of 'MY' and 'KS' which were intact and tallied with the specimen seals. It appears that memory of PW1 Ct. Ram Niwas did not help him on the point of number of parcel and impression of seals on it.
From the above evidence led by the prosecution, this Court finds that prosecution has ruled out possibility of tampering with the case property right from the stage of making of parcels, sealing thereof, their deposit with MHC(M) and despatch of sample parcel & FSL form to FSL on 09.05.2012. Therefore, this Court can safely rely on the report given by the expert on analysis of contents of sample.
Ex PW4/D is report given by the expert of FSL would reveal that percentage of Diacetylmorphine in contents of the sample was 23.08%.
Having regard to total quantity of 18 gms recovered from the accused, this FIR No. 97/2012 16 Court finds that he was found in possession of this much quantity of Diacetylmorhphine.
Defence plea
16. Learned Defence counsel has referred to statement of Smt. Santosh, mother of the accused to prove that present case is out of revenge on account of complaint filed by brother of the accused against police officials of PS Nabi Karim.
At the outset, it may be mentioned that only unsigned photocopy of complaint dated 21.01.2012 addressed by one Sonu to the Commissioner of Police has been placed on record. For want of its original and proper proof, this photocopy being perse inadmissible in evidence cannot be relied upon.
As regards oral testimony of DW1 Smt. Santosh mother of the accused, according to her, one day about 8 pm on return to her house she learnt from her daughterinlaw that police of PS Nabi Karim had come and taken away her son Monu @ Mahesh. Accused has not examined his wife to lend corroboration to the defence plea that on such and such date at about 8 pm, he was taken away by the police of PS Nabi Karim from his house. Statement of Smt. Santosh is based on what she was told by her daughter in law and as such is hearsay evidence.
It is not believable that wife or mother of the accused would have kept mum after he had been picked up by the police without any reason. Had accused been taken away by the police from his house without any reason, his wife or FIR No. 97/2012 17 mother must have filed complaint against police officials/officers. However, there is nothing on record to suggest that anyone of them filed any complaint against any police official to the effect that on 23.04.2012, he was kidnapped from his house and ultimately implicated in this case. There is no explanation for inaction in this regard. All this makes the defence plea further unbelievable.
Conclusion
17. From the material available on record and the above discussion, this court finds that that prosecution has fully established its case against the accused that on 23.04.2012, when apprehended, at about 8.10 pm, in the area of Gali No. 10, Multani Dhandha, Nabi Karim, Delhi, he was found in possession of 18 grams of heroin, in violation of provisions of Section 21 of the Act. I thus hold the accused guilty of the offence under Section 21 (b) of the Act. He is convicted thereunder.
Be put up after some wait to hear the convict on the point of sentence.
Announced in Open Court
on 10.04.2013 (Narinder Kumar )
Special Judge(NDPS) Delhi.
FIR No. 97/2012 18
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE (NDPS): DELHI
SC No.18/12
FIR No. 97/2012
PS Nabi Karim
U/s 21 of NDPS Act.
In the matter of:
State
Versus
Mahesh @ Monu .......Convict
ORDER ON SENTENCE
10.04.2013
Present: Sh. V.K. Negi, Addl. P.P. For State.
Mahesh @ Monu, convict on bail, with proxy counsel Sh. Manish Kumar.
I have heard learned Addl. P.P., convict Mahesh @ Monu and learned proxy counsel, on the point of sentence.
Convict and learned proxy counsel have prayed for leniency on the point of sentence submitting that he is not previous convict and he is to support his family consisting of his mother, wife and two kids.
The convict has been held guilty on proof of the allegations that he was found in possession of of 18 grams of heroin.
FIR No. 97/2012 19
Having regard to all the facts and circumstances, that the convict kept in his possession 18 grams of heroin, and that he is to support his family which includes his mother, wife and two kids, the convict is hereby sentenced to rigorous imprisonment for 6 months and to pay fine of Rs.2,000/ or in default of payment of fine to undergo further SI for 15 days, U/s 21 (b) of Narcotics Drugs and Psychotropic Substances Act.
The period of imprisonment already undergone during investigation, inquiry and trial to be set off against the period of sentence awarded vide this judgment.
Case property be confiscated to State and disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 10.04.2013 (Narinder Kumar )
Special Judge(Central)Delhi.
FIR No. 97/2012 20