Delhi District Court
4. Cr. A. 16/99 Titled As Mohd Raffique vs State" on 1 May, 2014
1
IN THE COURT OF MS SHAIL JAIN: SPECIAL JUDGE:
NDPS: 02: CENTRAL DISTRICT: TIS HAZARI :
DELHI
SC NO. 39/11
STATE
versus
Mohmad Javed
s/o Mohmad Ahmed
R/O H. No. 1849, Basti Julahan
Sadar Bazar, Delhi.
FIR No. : 100/11
Offence U/S : 21 NDPS Act
Police Station : Crime Branch
DATE OF INSTITUTION: 08.07.2011
DATE OF JUDGMENT: 01.05.2014
JUDGMENT
1. The accused Mohmad Javed s/o Mohd Ahamad , as per prosecution case, was found in conscious possession of 270 grams of heroin on 14.04.2011 on pavement near temple, Roshnara Road, Delhi. The accused was arrested and after completion of investigation, the charge sheet was 1 2 filed.
2. Accused was charged for the offense punishable u/s 21 NDPS Act to which accused pleaded not guilty and claimed trial.
3. Prosecution had examined 10 witnesses in all to prove the case against the accused. The substance of the prosecution evidence is as follows:
4. PW1 HC Om Parkash that on 15.04.2011, he was working as Reader ACP, Narcotics cell, Shakarpur. On that day, he received DD no. 6 dated 14.04.2011 duly forwarded by Inspector Narcotics, Vivek Pathak, Narcotics cell and seen by ACP Veer Singh. Copy of the same is Ex.PW1/A. On the same day, two special reports u/s 57 NDPS Act were received in respect of seizure and arrest of accused prepared by SI Paramjeet Singh and SI Satyawan, duly forwarded by Inspector Narcotics and seen by ACP bearing their signatures on both the reports. Copies of the same are Ex.PW1/B and 1/C.
5. PW2 W/Ct Rojalia has deposed that on 14.04.2011, on 2 3 the basis of rukka sent by SI Paramjeet Singh through HC Subhash, she recorded formal FIR of this case through computer Ex.PW2/A. She had also recorded DD no.6 EX.PW2/B .
6. PW3 HC Jag Narain has deposed that on 14.04.2011, he was working as MHCM at PS Crime Branch. On that day, SHO called him in his office and deposited with him three pulandas and FSL form duly sealed with the seal of 8B PS NB DELHI & KSY and carbon copy of recovery memo. On the same day, SI Satyawan deposited with him the personal search of accused Javed. On 20.04.2011 vide RC no. 168/21, one pulanda mark A and FSL form duly sealed were sent to FSL office through HC Rajender. On 22.06.2011, he received back the pulanda from FSL office with FSL result through Ct. Anny Vergis. He made the abovesaid entry in register no. 19 at serial no. 956/11 and copy of the same is Ex.PW3/A . The copy of the RC and copy of the acknowledgment are Ex.PW3/B and 3/C.
7. PW4 SI Paramjeet Singh is the first IO the case. He 3 4 has deposed that on 14.04.2011, at about 09.00 am, one secret informer came to him in the office and informed that one person namely Javed resident of Sadar Bazar and involved in illegal trade of smack would come between 10.30 to 11.00 a.m at Roshnara Bagh roundabout near mandir for supply of smack to someone and informer was produced before Inspector Vivek Pathak thereafter he forwarded the information telephonically to ACP Beer Singh who instructed to conduct raid. Thereafter he recorded DD entry Ex.PW4/A and same was placed before SHO for further action u/s 42 NDPS Act. One raiding party was organized consisting of himself, HC Subhash and HC Sanjeev Kumar on the directions of Inspector Vivek Pathak. At 09.45 a.m, vide DD entry no. 7 Ex.PW4/B, the raiding party left the PS. He had requested 45 persons near the PS to join the raiding party as well as again requested at Mori Gate bus stand to 56 passengers to join the raiding party but they refused. Police party took their positions about 34 meters near the main gate by hiding themselves 4 5 and started waiting for the suspect. At about 10.55 a.m, police party noticed one boy wearing black jeans and mahendi color Tshirt having one black color polybag in his left hand coming from Roshnara road side on foot. The secret informer identified him from 15 /20 steps distance and pointed out that he is Javed and left the spot. That boy stood on the footpath near the gate and it seems that he was waiting for someone . Police party apprehended him. Witness introduced him and raiding party to the boy who disclosed his name as Mohd Javed. Witness informed him about the secret information with him and he was also briefed about his legal right to be searched before any Gazetted officer and Magistrate and that the same can be arranged for him. Witness also offered the search of whole raiding party and the vehicle before taking his search. On refusal of accused, witness prepared notice u/s 50 NDPS Act and same was read over and explained to accused. He was also made to understand the meaning of his rights and the Gazetted Officer and Magistrate. The carbon copy of 5 6 notice was given to him. The notice is Ex.PW4/C. The accused refused to exercise his right and himself mentioned his refusal to exercise his right and his refusal written by him is Ex.PW4/D. Thereafter witness conducted his search. The black polythene bag was taken from his left hand and he searched the same and one transparent heavy polythene tied with rubber band having matiala powder was found in it. He untied the rubber band and matiala color powder was tested on the field testing kit and the same was found to be heroin. He weighed the powder with transparent polythene and it was 270 gms. He separated two samples of heroin of 5 gms each in two separate polypacks and same were tied with rubber bands and then turned in white cloth pulandas and marked A and B. The remaining heroin in the same transparent poly pack was tied with rubber band and then placed in the black polythene bag and turned in to a white cloth pulanda and marked C. He also filled up FSL form. He affixed his official seal 8 BPS NB DELHI on the FSL form, on pulandas 6 7 mark A, mark B and mark C. He seized the abovesaid FSL form and sealed pulandas mark A, B and C vide memo Ex.PW4/E. Thereafter he prepared rukka and handed over to same to HC Subhash alongwith pulandas mark A, B and C, FSL form and copy of seizure memo with directions to hand over the rukka to duty officer and remaining documents and pulandas to SHO. At 04.20 p.m, SI Satyawan reached at spot in the same vehicle with driver HC Harinder as the further investigation was marked to him. He briefed him and the accused was also handed over to him alongwith the prepared papers at the spot. SI Satyavan prepared site plan at his instance. He interrogated the accused and arrested him at 06.15 p.m vide arrest memo Ex.PW4/G. He conducted his jama talashi. The carbon copy of notice u/s 50 NDPS Act and cash of Rs. 217/ alongwith black color purse were recovered from his personal search and he signed the memo Ex.PW4/H. Accused made disclosure statement Ex.PW4/J . SI Satyawan deposited the jama talashi in 7 8 Malkhana. On 15.04.2011, he prepared special report u/s 57 NDPS Act Ex.PW4/K and presented the same before Inspector Vivek Pathak. Witness has identified sample Ex.P1, sample heroin Ex.P2. Heroin as Ex.P3 .
8. PW5 HC Rajinder has deposed that on 20.04.2011, he took one sealed cloth pulanda mark A alongwith FSL form with the seals of 8B PS NB DELHI and KSY on both vide RC no. 168/21 alongwith other papers from MHCM HC Jag Narayan and deposited the same at FSL Rohini. He obtained the receipt from FSL and carbon copy of the RC and handed over the same to MHC(M) PS Crime Branch at Nehru Place, Delhi. During the tenure, the abovesaid sealed pulanda remained in his possession, same was not tampered or allowed to be tampered with it.
9. PW6 Inspector Vivek Pathak has deposed that on 14.4.2001 at about 9.10 am SI Paramjit Singh came alongwith one secret informer who informed that one Javed R/o Sadar Bazar, Delhi is involved in the supply of smack/ heroin would visit Roshanara Bagh area near mandir to 8 9 supply the smack/heroin. He himself verified the information and forwarded the same to ACP Sh.Bir Singh through telephone who instructed to take action as per law. SI Paramjit Singh recorded DD no. 6 Ex. PW1/A and produced the same before him which he forwarded to ACP. On his direction SI Paramjit Singh constituted a raiding party consisting of HC Sanjeev, HC Subhash. At about 9.20 p.m on the same day SI Satyawan alongwith accused came in his office. On 15.4.2011 SI Paramjit Singh presented report Ex.PW4/K before him and he forwarded the same to ACP. SI Satyawan also presented report Ex.PW6/A before him and he forwarded the same to ACP.
10. PW7 HC Sanjeev Kumar was the member of the raiding party. He has deposed on the same lines as deposed by PW4/ASI Paramjit Singh. He had deposed in detail about the recovery of contraband from the possession of accused.
11. PW8 HC Subhash Singh was also the member of the raiding party. He has deposed on the same lines as 9 10 deposed by PW7. He had deposed in detail about the recovery of contraband from the possession of accused.
12. PW9 Inspector Kuldeep Singh was SHO of PS Crime Branch at the relevant time. He has deposed that on 14.04.2011 HC Subhash from Narcotics cell came to his office and produced three cloth parcels marked as A, B and C alongwith one FSL form and carbon copy of seizure memo. He put FIR no on all the parcels and FSL form and carbon copy of seizure memo. He put his own seal of KSY on all the three parcels and on FSL form. He got the case property deposited in malkhana. HC Jag Narain, MHCM had made relevant entry in register no. 19 which was signed by him on Ex.PW4/A.
13. PW10 SI Satyawan was second IO of the present case.
14. Thereafter prosecution evidence was closed.
15. Statement of accused was recorded u/s 313 CrPC wherein the entire incriminating evidence has been put forth and explained to the accused to which he pleaded innocence and false implication. He stated that he has 10 11 been falsely implicated in this case . Nothing was recovered from his possession .
16. Accused had stated that he did not want to lead any evidence in defence .
17. I have heard Ld APP for the State and Shri Pradeep Anand, Ld counsel for accused . Written arguments have also been submitted on behalf of the accused dated 30.04.14 but same does not bear the signatures of Ld counsel, hence the same cannot be considered to be the written arguments advanced by Ld counsel as per provisions of law. However, same has also been considered.
18. Ld Defense Counsel Shri Pradeep Anand had argued that as per secret information recorded in DD no 6 information was in respect to the "smack" and not "heroin", therefore, this is not a valid secret information as per provisions of NDPS Act because 'smack' is not mentioned in the schedule dealing with narcotic drugs. It is also argued that there was no requirement of compliance of section 42 NDPS Act as smack is not contraband. As 11 12 regards, rukka, in the present case, it is stated that rukka is improper as notice u/s 50 NDPS Act is not legal as notice u/s 50 NDPS Act was given prior to personal search of accused being conducted. Hence the notice was not legal and the rukka, on the basis of that search is also not legal. As regards seizure memo Ex.PW4/E, it is argued by Ld defence counsel that no prosecution witness says that he has signed the pulanda . It is also argued that seizure memo Ex.PW4/E bears the DD no 7 and not the FIR, even the notice u/s 50 NDPS Act Ex.PW4/C bears the DD no 7 only. It is also argued that register no. 19 does not bear the signatures of SHO hence the entry has not been proved by the SHO. It is further argued by Ld defence counsel that only the rukka was prepared by the IO SI Paramjit Singh and no other document was prepared by him, therefore the documents cannot be relied upon. As regards the vehicle, it is argued by Ld counsel that log book entry of the vehicle has not been made. It was stated by PW4/ IO SI Paramjit Singh that the vehicle was his private vehicle and was 12 13 being driven by HC Harirnder Singh. The objection of Ld Defence counsel was that if the vehicle was of IO SI Paramjit Singh's son, why it was being driven by HC Harinder Singh, it should have been driven by IO SI Paramjit Singh and HC Harinder Singh has not been made a witness in the case. Therefore, the case of the prosecution is not proved beyond reasonable doubt and the accused is entitled to acquittal.
19. In the written arguments submitted on behalf of the accused, apart from the arguments mentioned above, it is also submitted that DD no 7 Ex.PW4/B and DD no 13 Ex.PW10/C have not been proved on record by the prosecution. As per the written arguments, it is submitted by ld defence counsel that statement of Inspector Vivek Pathak recorded u/s 161 Cr.P.C does not mention about forwarding of the report u/s 57 of NDPS Act to ACP, hence it proves that reports were not forwarded by Inspector Vivek Pathak to ACP, therefore prosecution has not been able to prove the proper compliance with the provisions of law. As 13 14 regards the case property, it is submitted by Ld defence counsel that pulanda did not bear FIR No. , therefore it is not proved by the prosecution that this was recovered from the possession of the accused. In support of his arguments Ld counsel for accused has relied upon following authorities:
"1. 2006 (3) JCC Narcotic 150
2. 2011 (2) JCC (Narcotics) 123
3. 2007 (2) JCC (Narcotics) 71
4. Cr. A. 16/99 titled as Mohd Raffique vs State"
20. On the other hand, it is submitted by Ld Addl.P.P for the State that the prosecution has proved its case sufficiently as the witnesses have supported the case of the prosecution. Prosecution had proved its case beyond reasonable doubt that accused was found in conscious possession of 270 grams of heroin . Prosecution witnesses have supported the case of the prosecution. Proper compliance of provisions of NDPS Act have been complied with. It is therefore prayed by Ld Additional P.P that 14 15 accused be convicted for the offence punishable u/s 21 (C) NDPS Act.
21. I have considered the arguments advanced by Ld counsel for the parties, judgments relied upon by Ld counsel for accused and the material on record.
22. Very strange arguments has been advanced by Ld defence counsel while advancing oral arguments, in the present case, even, the same fact has also been stressed upon by Ld defence counsel in his written arguments submitted on record. It is stated in written arguments that the substance for which the secret information was received was of 'smack' and not of 'heroin', therefore, there was no secret information received in the present case and the entire basis of the prosecution of the present case is illegal.
23. Though, it is correct that NDPS Act does not mention the word 'smack' either in the provisions or the schedule. But it is common knowledge and understanding that word 'smack' is used in common parlance for the contraband 15 16 'heroin'. Even in the present case word 'smack' and 'heroin' has been used by the prosecution interchangeably. Further, from the FSL report Ex.Px it is clear that contraband which was recovered from the possession of accused was found containing "diacetylmorphine Phenobarbital and Paracetamol and as per the provisions of NDPS Act, Section 21 of the Act deals with the punishment for contravention in relation to Manufactured Drugs and preparation. Further section 2 (xi) of the Act, defines Manufactured Drugs as:
(a) All coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b)....................
24. Section 2, clause (xvi) of the Act defines opium derivatives as under:
"Opium derivative means:
a)...............
b)...............
c)..............
d) diacetylmorphine, that is the alkaloid also known as diamorphine or heroin and its salt.
25. Thus, as per definition u/s 2 (XVI) (d) NDPS Act, any 16 17 substance found to contain diacetylmorphine and its salt will fall within the category of opium derivatives and therefore will fall in the definition of manufactured drugs as defined u/s 2 (xi) NDPS Act. Therefore, this argument of Ld defence counsel appears to have been taken only for the sake of arguments and does not have any substance in it.
26. The other contention and arguments of Ld defence counsel has been that the document ie rukka , seizure memo, notice u/s 50 NDPS Act etc bears the DD no 7 and not FIR, therefore it cannot be presumed to be the documents of the present case. I am of the opinion that this argument has also been taken by Ld defence counsel without properly considering the facts and circumstances of the case. It is admitted case of the prosecution as well as defence that prior to preparation of rukka Ex.PW2/B, FIR was not registered. When FIR has not been registered, there was no possibility for the first IO/SI Pararamjit Singh or any other police official preparing any document to put FIR no on the rukka or the notice u/s 50 NDPS Act or the 17 18 seizure memo. All these documents were prepared prior to the registration of FIR. Hence the DD no 7 is mentioned on these documents, as this was the DD through which IO/PW4 had gone for conducting raid. This argument, rather supports the case of the prosecution and proves that the documents were prepared prior to registration of FIR.
27. Further contention of Ld defence counsel has been that rukka was prepared by the IO and the other documents were not prepared by the IO in his own handwriting, in my opinion much importance cannot be given to this fact. It is no where stated by any of the prosecution witness that documents were not prepared either in the presence of IO or were not prepared under the supervision of the IO. The mere fact that one document was prepared in the handwriting of IO does not doubts the credibility of that witness or truthfulness of that document. As regards the arguments of Ld defence counsel that different witnesses have spoken for the writer of different document being different persons, I am of the opinion that these are very 18 19 trivial issues. Considering the fact that incident is of April, 2011 and the examination of all prosecution witnesses was concluded in the year 2013, benefit of lapse of memory due to time is to be given to the prosecution witnesses. Whether the documents were prepared by the IO in his own handwriting or were prepared by other person, who was also the member of the raiding party, will not create doubt on the testimonies of the prosecution witnesses, specially when it is the case of the prosecution that all the documents were prepared under the supervision of PW4 SI Paramjit Singh.
28. Even otherwise it is settled preposition of law that on mere technical grounds accused is not to be acquitted unless it has specific bearing or affect the root of the case. In the case Chittranjan Das vs State of West Bengal, 1963 SCR 237 it was held:
"that undue emphasis on mere technicalities in respect of matters which are not vital or of important significance 19 20 in a criminal trial, may sometime frustrate the ends of justice. Any irregularity or even illegality during investigation should not be treated as a ground to reject the prosecution and that corroboration of evidence with mathematical nicesities cannot be expected in criminal cases.
29. As regards the contention of Ld defence counsel that log book of vehicle has not been proved or placed on record, I am of the opinion that this is a strange argument advanced by Ld defence counsel. Once admittedly SI Paramjit Singh PW4 who is IO of the case had stated in his examination in chief that raiding party had gone in private vehicle bearing no. DL4CS9884 driven by HC Harinder Singh and has stated in his cross examination that vehicle belongs to his son. There was no necessity of either maintaining the log book or placing it on record. There is no need to state that the private vehicles are not required to maintain the log book.
20 21
30. Another argument advanced by Ld defence counsel is that if it was the vehicle of SI Paramjit Singh, PW4, why it was being driven by HC Harinder Singh. It appears that this arguments has also been raised by Ld defence counsel for the sake of arguments and it has no bearing on the facts of the present case. Even otherwise, it can very well be observed that if SI Paramjit Singh being first IO of the case is present on the spot after apprehension of the accused and rukka along with pulanda and other documents were taken to PS Crime Branch by HC Subhash PW8 in private vehicle, the vehicle has to be driven by some other person than SI Paramjit Singh. It is further not necessarily required that owner of the private vehicle has to drive the vehicle by himself. This argument being flimsy argument is not acceptable.
31. Ld defence counsel has strongly relied upon the fact that in cross examination PW4 SI Paramjit Singh had accepted his suggestion that he had given the option to the accused Mohd Javed to get himself searched before 21 22 Gazetted Officer or Magistrate. On this point, it has been argued by Ld defence counsel at length that since the IO SI Paramjit Singh had given the only 'option' to accused of being searched before Gazetted Officer or Magistrate hence it is not the proper compliance of section 50 NDPS Act and the accused has not been made aware of his right of being searched in presence of Gazetted Officer or Magistrate. On this point of Ld defence counsel has relied upon the judgment of Vijaysingh Chandubha Jadeja vs State of Gujrat, AIR 2011 SC 77.
32. In Vijay Singh's case mentioned above, Hon'ble Supreme Court was dealing with the questions whether section 50 NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere inquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with mandate of the said Section". In 22 23 that case it was held that suspect should be informed about his legal right to be searched before Gazetted Officer or Magistrate and merely informing him of his option will not be correct compliance.
33. The argument advanced by Ld defence counsel in this regard is not correct as per the testimonies of prosecution witnesses. PW4 SI Paramjit Singh has specifically stated in his examination in chief that accused Mohd Javed after apprehension was apprised about his 'legal right' to be searched before Gazetted Officer or Magistrate. He has also stated that accused was made to understand the meaning of his rights and meaning of Gazetted Officer or Magistrate. The objection of Ld defence counsel that only option was given by the IO is therefore incorrect and it is to be seen that IO/PW4 SI Paramjit Singh had only admitted the suggestion given by Ld defence counsel to be correct. But that does not mean that PW4 had failed to perform his legal duty to inform the accused for his legal right to be searched before Gazetted Officer or Magistrate. In the 23 24 entire cross examination of PW4 not even a single suggestion has been given to PW4 that accused was not informed of his legal right of being searched before Gazetted Officer or Magistrate. It is also important to note at this point that while PW4 had admitted the suggestion of option given by Ld defence counsel, he had stated voluntarily that he had explained the legal right to accused. It has been further stated by PW4 in cross examination that he had orally explained the meaning of Gazetted Officer or Magistrate to the accused. In view of the testimony of PW4 supported by the testimonies of PW7 HC Sanjiv Kumar and PW8 HC Subhash Singh, I am of the opinion that legal requirement of explaining legal right of suspect before giving notice u/s 50 NDPS Act has been complied with by the prosecution/IO. There is no lacuna in compliance of the provisions of section 50 NDPS Act.
34. Further it is contended in the written submissions that Inspector Vivek Pathak has not mentioned in his statement u/s 161 Cr.P.C about forwarding reports to ACP. From the 24 25 testimony of PW6 Inspector Vivek Pathak, it is clear that his statement was recorded by the IO on 14.4.2011 whereas report u/s 57 NDPS Act were put before him on 15.04.2011 and same were forwarded by him to ACP. The fact which is corroborated by the testimony of PW1 HC Om Parkash who had stated that on 15.4.2011 he received said reports u/s 57 NDPS Act prepared by SI Paramjit Siongh and SI Satyavan duly forwarded by Inspector Narcotic ie PW6 Inspector Vivek Pathak.
35. As regards the argument that DD no 7 Ex.PW4/B has not been proved by the prosecution, I am not inclined to accept the argument of Ld defence counsel in this regard. The DD by which departure entry is made by PW4 SI Paramjit Singh while leaving the Narcotic Cell. He has proved in his examination in chief itself that he made DD no. 7 Ex.PW4/B. No suggestion was given to PW4 about the DD no 7 being incorrect, hence at this stage, it cannot be said that DD no 7 has not been proved.
36. As regards the argument of Ld defence counsel that DD 25 26 no 13 Ex.PW10/C has not been proved by the prosecution, I am not inclined to accept the argument of Ld defence counsel in this regard. The DD by which arrival entry is made by PW10 SI Satyavan after reaching the Narcotic Cell wherein information about the accused being produced before Inspector Vivek Pathak and the inquiry made by him from the accused has been made. No suggestion was given to PW10 about the DD no 13 being incorrect or no defence was made hence at this stage, it cannot be said that DD no 13 has not been proved.
37. It is also argued, orally by Ld defence counsel that FIR no. is not mentioned on the pulanda and seizure memo. In regards to the seizure memo it is already explained that since at the time of preparation of seizure memo no FIR was registered, therefore DD no 7 was mentioned on the seizure memo. As regards the pulanda, this fact has also been explained in the testimonies of prosecution witnesses PW9 Inspector Kuldeep Singh wherein it was observed by the court during the cross examination of PW9 that space 26 27 of cloth wherein FIR no. should have been written bears the smudging impression which shows that FIR was written there but it has got smudged due to time or mishandling, when the other particulars mentioned on the pulandas were clearly visible. It is also to be noticed that in the examination of none of the prosecution witness ie PW1 HC Om Parkash till PW8 HC Subhash Singh it was observed that pulanda does not bear the FIR no. and only on 3.4.14 when Inspector Kuldeep Singh was cross examined it is mentioned that FIR no. is not mentioned on the pulanda. Considering the facts and circumstances as explained, I am of the opinion that it is quite possible that FIR no being written on pulanda with ink might have got smudged due to opening of pulanda at various stages and resealing of the same. Even otherwise, this being very small issue, the case of the prosecution cannot be thrown out on this aspect when testimonies of prosecution witnesses have proved the case of the prosecution against accused. There is no lacuna in the testimonies of 27 28 prosecution witnesses.
38. On proper and careful evaluation of the facts and events of the case, I conclude that testimony of prosecution witnesses is consistent and trustworthy. The recovery of contraband from the possession of accused is clearly established. The accused was found in conscious possession of 270 grams of heroin which is punishable u/s 21 NDPS Act. Holding the accused guilty, I convict accused Mohd Javed u/s 21 ( C ) NDPS Act, 1985. ANNOUNCED IN THE OPEN COURT ON 01.05.2014 (SHAIL JAIN ) SPECIAL JUDGE: NDPS02 CENTRAL DELHI 28