Delhi District Court
State vs . Zamarai @ Doctor Sc No. 25/09 on 30 April, 2013
State vs. Zamarai @ Doctor SC No. 25/09
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 25/09
ID No. 02403R0287202009
FIR No. 26/09
PS Special Cell
u/s 21/29 of NDPS Act
State Vs. 1. Zamarai @ Doctor
S/o Moinuddin
R/o C188, New Moti Nagar,
New Delhi
2. Kalu Christian
S/o Kalu
R/o H. No. 791A, Near Kuber
Building, Maidangarhi, New Delhi
Date of Institution : 15.09.2009
Judgment reserved on : 15.04.2013
Date of pronouncement : 30.04.2013
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21/29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act"). FIR No. 26/09 Page No. 1 of 40
State vs. Zamarai @ Doctor SC No. 25/09
2. Briefly stated the allegations against the accused as contained in the chargesheet are as follows:
(a) On 15/10/2009 at about 02:00 PM, Insp. Devender Singh, Special Cell/ Southern Range, received a secret information that one Afghani namely Zamarai, residing somewhere in Moti Nagar is indulging in supply of heroin in Delhi and that on 15.10.2009 at about 06:00 PM, he would be coming near Kuber Building at Maidan Garhi to supply heroin in huge quantity to a Nigerian.
(b) The information was brought to the notice of ACP L.N. Rao who gave directions for necessary action to be taken. DD entry no. 9 was also lodged in this regard in the Special Cell and as per the directions of the senior officials, a raiding team comprising of Inspector Devender Singh, Insp. Satender Sangwan, ASI Rakesh Kumar, HC Balram Singh, HC Devender Kumar, HC Devender Singh, HC Nirdesh Kumar, Ct. Rajesh Kumar, Ct. Yashpal and the secret informer left the office of Special Cell at about 03:45 PM for Maidan Garhi Village.
(c) On the way to the spot, at Saket and at the spot, Insp. Devender Singh requested 56 passersby to join the raiding team but none of them agreed to do so.
(d) On reaching the spot at about 04.25 PM, the members of the raiding team positioned themselves at strategic points and at about 06.10 PM, one FIR No. 26/09 Page No. 2 of 40 State vs. Zamarai @ Doctor SC No. 25/09 stout built person was seen getting down from an auto rickshaw in front of Kuber Building. The said person started waiting for someone and was identified as Zamarai, the suspect by the secret informer. The said person was carrying two coloured polythene bags. After sometime, while the said accused was waiting, one African looking person came from a south side gali and stood near accused Zamarai and started talking to him.
Thereafter, accused Zamarai was seen handing over one polythene bag to the African looking person and at this point of time, both the accused persons were intercepted by the members of the raiding team.
(e) It is asserted that at that point of time also, 23 passersby were requested to join the investigation but none agreed. The IO introduced himself and the members of the raiding team to them and on enquiry, the accused persons confirmed that their names were Zamarai and Kalu Christan. They were then informed about their legal rights and were issued notices u/s 50 of NDPS Act and were made to understand that they have a legal right to be searched before the Magistrate or a Gazetted Officer. Both the accused persons refused to exercise the said right and wrote their refusals on the notices by themselves.
(f) Thereafter, Insp. Devender Singh conducted the search of the accused Zamarai and from the multi colour strip polythene bag held by him, one transparent polythene bag tied on the top was recovered. On opening the FIR No. 26/09 Page No. 3 of 40 State vs. Zamarai @ Doctor SC No. 25/09 same, it was found containing cream colour substance in powder and crystal form, which on testing with field testing kit, gave positive result for heroin. The recovered heroin was weighed and its total weight came out to be 1.800 kg. A sample of 20 gms was taken out from the recovered heroin and converted into a pullanda which was then given Mark 'S1'. The remaining heroin was also converted into a cloth pullanda and given Mark 'A'.
(g) Thereafter, Inspector Devender Singh conducted the search of the accused Kalu Christan and from the white polythene bag held by him, one transparent poly bag tied on the top was recovered. On opening the same, it was found containing cream colour substance in powder and crystal form, which on testing with field testing kit, gave positive result for heroin. The recovered heroin was weighed and its total weight came out to be 1.500 kg. A sample of 20 gms was taken out from the recovered heroin and converted into a pullanda which was then given Mark 'S2'. The remaining heroin was also converted into a cloth pullanda and given Mark 'B'. All the Pullandas were sealed by the IO with the seal of 'DSN'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared.
(h) Thereafter Rukka was prepared and was sent through ASI Rakesh Kumar for registration of FIR. Further investigation was handed over to FIR No. 26/09 Page No. 4 of 40 State vs. Zamarai @ Doctor SC No. 25/09 ASI Anand Swaroop who came to the spot and he was narrated the facts of the case by Insp. Devender Singh and the accused persons and the documents prepared were handed over to him. ASI Anand Swaroop then inspected the site and prepared the site plan. After interrogating the accused they were then arrested and after completion of proceedings at the spot, the raiding team alongwith the accused persons went to PS Special Cell, Lodhi Colony and the accused were produced before the SHO and deposited the personal search articles of the accused persons in the Malkhana. Thereafter, the accused persons were brought to Special Cell/Southern Range, New Friends Colony.
i) Accused Kalu Christian was inquired about his travel documents but he could not give any satisfactory reply nor could provide any valid documents regarding his stay in India. The information regarding arrest of accused Kalu was sent to the Nigerian Embassy. On 16/5/2009 Special Report U/s 57 of NDPS Act was prepared. On 18/6/2009, the sample pullandas of this case were sent to FSL, Rohini and after receiving the report from FSL, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed against the accused persons by the Ld. Predecessor of this court vide order dated 6/10/2009 for the offences punishable u/s 21 (b)(c) r/w section 29 of the NDPS Act.
FIR No. 26/09 Page No. 5 of 40
State vs. Zamarai @ Doctor SC No. 25/09
4. In order to prove its case against the accused persons, the prosecution has examined 13 witnesses in all.
5. PW3 Insp. Devinder Singh, PW8 SI Satender Sangwan and PW9 SI Rakesh Kumar are members of the raiding team. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. PW3 Inspector Devender Singh is the main investigating and seizing officer. As per his deposition, DD No. 9 dated 15/5/2009, in which the secret information was reduced has been exhibited as Ex.PW2/D and the departure entry DD No. 12, in which the departure of the raiding team from the PS is recorded has been exhibited as Ex.PW2/E. The notices issued to the accused persons u/s 50 of the NDPS Act have been exhibited as Ex.PW3/A and Ex.PW3/B and the refusal written by accused persons on the said notices have been exhibited as Ex.PW3/C and Ex.PW3/D. The seizure memos prepared with respect to the recovery of the heroin from accused persons have been exhibited as Ex.PW3/E and Ex.PW3/F. The tehrir prepared at the spot has been exhibited as Ex.PW3/G.
6. PW1 Dr. Madhulika Sharma, Asstt. Director, FSL Rohini has proved the report prepared by her with respect to the analysis conducted by her with respect to the samples sent to FSL. The said report has been FIR No. 26/09 Page No. 6 of 40 State vs. Zamarai @ Doctor SC No. 25/09 exhibited as Ex. PW1A and as per the said report, the samples Mark 'S1' and 'S2' were found to contain 'caffeine, acetylcodeine, monoacetylmorphine and diacetylmorphine and the percentage of diacetylmorphine were found therein to be 20.3% and 11.6% respectively.
7. PW2 SI Daler Singh has deposed that he is working as Reader to ACP Special Cell and that on 15/5/2009 DD No. 9 regarding secret information, DD no. 12 regarding departure of raiding team and on 16/5/2009 the report u/s 57 of the NDPS Act regarding seizure of heroin and arrest of accused persons were received in the office of ACP. The said DDs and report have been exhibited as Ex.PW2/A, Ex.PW2/E and Ex.PW2/B as per the deposition of this witness.
8. PW4 ASI Mathias Baxla has inter alia deposed that on the instructions of Insp. Govind Sharma, he had deposited the case property in the Malkhana and had made an entry in this regard in Register No. 19. The relevant entry has been exhibited as Ex.PW4/A. This witness has also inter alia deposed that on 18/6/2009, he had sent sealed pullandas mark S1 and S2 to FSL, Rohini. The original MHC(M) Register was also produced in the Court. According to this witness, on 19/8/2009 two remnant pullandas were deposited in the malkhana by ASI Rakesh and he had made an entry in this regard in Register No. 19. The relevant entry FIR No. 26/09 Page No. 7 of 40 State vs. Zamarai @ Doctor SC No. 25/09 has been exhibited as Ex. PW4/E.
9. PW5 Ct. Yashpal Singh has merely deposed that on 18/6/2009 on the instructions of SI Anand Swaroop, he went to Lodhi Colony malkhana and collected two samples bearing the seal of DSN and GS, FSL alongwith the FSL Form from the MHC(M) and had deposited the same in FSL, Rohini and obtained its acknowledgment on the back of the RC. The acknowledgment of the sample has been exhibited as Ex.PW5/A.
10.PW6 ASI Satbir Singh, Duty Officer has inter alia deposed that on 15/5/2009 at about 10:00 PM, he had received the rukka prepared by Insp. Devender Singh and sent through ASI Rakesh and had registered the FIR Ex.PW6/A and had made an endorsement, Ex.PW6/B in this regard on the rukka.
11.PW7 SI Anand Swaroop has inter alia deposed about the investigation carried out by him. As per his deposition, the site plan prepared by him at the spot has been exhibited as Ex.PW7/A. He has also inter alia deposed that he had recorded the statements of various witnesses in this case and had arrested the accused persons Zamarai and Kalu Christan and the arrest memos prepared by him have been exhibited as Ex.PW7/B and Ex.PW7/C respectively. This witness has further deposed that he had prepared the report u/s 57 NDPS Act which has been exhibited as FIR No. 26/09 Page No. 8 of 40 State vs. Zamarai @ Doctor SC No. 25/09 Ex.PW7/H.
12.PW7 Sh. Virender Singh Dahiya, has inter alia deposed that Kalu Christan had taken one flat no. 3 in his house 791A, Maidan Garhi, New Delhi on rent two months prior to the registration of the present case and he had got the police verification of Kalu Christan done at the time of giving the house to him on tenancy.
13.PW7 Anuj Bhatia, Nodal Officer from Vodafone Essar Mobile Services Ltd. has produced before the court the call detail records of the telephone number 9654392250 (the mobile allegedly recovered from accused Kalu Christian) for the period 9/5/2009 to 15/5/2009 and the same have been exhibited as Ex.PW7/D. The said witness has also produced the customer application form and declaration form with respect to the said number and as per the said form Ex.PW7/A and Ex.PW7/B, the aforementioned phone was subscribed in the name of one Santosh s/o Sh. Dev Narain.
14.PW8 Insp. Govind Sharma has interalia deposed that on 15/5/2009, he was posted as SHO, PS Special Cell and on that day, ASI Rakesh Kumar produced before him, two pullandas mark A and B , two samples mark S1 and S2, two FSL Forms and two carbon copy of Seizure Memos. As per the deposition of this witness, he put his seal 'GS' on all the pullandas, the FSL forms and the seizure memos and then got the said property FIR No. 26/09 Page No. 9 of 40 State vs. Zamarai @ Doctor SC No. 25/09 deposited in the Malkhana by ASI M. Baxla, MHC(M) and lodged DD no. 14B in this regard which has been exhibited as Ex.PW8/A.
15.PW10 Sh. Vishal Gaurav, Nodal Officer from Bharti Airtel has produced before the court the call details record of the telephone number 9818129702 (the mobile allegedly recovered from accused Zamarai) for the period 9/5/2009 to 15/5/2009 and the same have been exhibited as Ex.PW10/A. The said witness has also produced the certified copy of Airtel prepaid form with respect to the said number and the same has been exhibited as Ex.PW10/B.
16.The entire incriminating evidence was put to the accused persons and their statements u/s 313 Cr.PC were recorded. Both the accused persons in their statements u/s 313 Cr.PC have denied their complicity in the present case. Accused Kalu Christian in his statement has inter alia stated that on the date of the incident i.e. 15.05.2009, he had gone alongwith his landlord to purchase one refrigerator from his landlord's friend electronic shop and that he alongwith his landlord had returned to his apartment at about 07.45 PM and that while they were waiting for the delivery van to arrive, some policemen came in civil clothes and introduced themselves as Special police officers. He has further stated that they told him that they were looking for one African national called John and enquired about him from him and that he told them that he does not have any clue about FIR No. 26/09 Page No. 10 of 40 State vs. Zamarai @ Doctor SC No. 25/09 any such person. As per the statement of this accused, the police officials then asked him to accompany them for further interrogation and on reaching the police station, he saw two other African nationals and one Afghani national already present at the Police station and the police officials asked the Afghan national if he was the one. Accused has further stated that the Afghani national clearly replied that he was not the one but despite the same, the police officials asked him to wait for a while and then asked him to pay 5000 $ if he wants to be let off. He has further stated that the other two African nationals paid between three to five thousand dollars before they were let off and since he could not afford the money, he was implicated in this false case. He has also further stated that Vijender Singh Dahiya, the witness produced by the prosecution was not his landlord and it was one Narender Singh who used to collect rent from him. This accused has also stepped into the witness box after filing an application u/s 315 Cr.PC and has stated the aforementioned facts on oath.
17.Accused Zamarai has also stepped into the witness box and he has also stated similar facts in his statement u/s 313 Cr.PC as well as on oath. According to this accused, he was a dentist in a government hospital in Kabul and after shifting to India, had started manufacturing medicines and exporting the same to Kabul. As per this accused, he had worked FIR No. 26/09 Page No. 11 of 40 State vs. Zamarai @ Doctor SC No. 25/09 with a company Arbru in Kirti Nagar and was in talks of starting his own business with a company at Ghaziabad and was also issued a licence by the Islamic Republic of Afghanistan for conducting business. This accused has alleged that the original of the said license was taken by the police officials. As per the deposition of this accused, on 14/5/2009 at about 11:30 PM four persons had come to his house and had forcibly picked him up. This accused has further alleged that he had been beaten on his feet and on his hands with dandas and had been even given electric shocks and that he had sustained injuries in his private parts. This accused had also summoned the medical officer incharge from Central Jail no.4 to prove that he had suffered injuries in his private parts.
18.After the evidence on behalf of the accused persons was concluded, an application was filed on behalf of the State praying therein that an additional charge be framed against accused Kalu Christian u/s 14 A of the Foreigners Act. The submission of the State was that though it was specifically mentioned in the chargesheet that this accused had failed to furnish any valid documents regarding his stay in India, inadvertently the Ld. Predecessor of this court had not framed a charge against him for having committed an offence punishable u/s 14A of the Foreigners Act. Since the Ld. Defence counsel had no objection to the said application, an additional charge u/s 14A Foreigners Act was framed against accused FIR No. 26/09 Page No. 12 of 40 State vs. Zamarai @ Doctor SC No. 25/09 Kalu Christian vide order dated 26.04.2012 to which he pleaded not guilty. the State thereafter recalled SI Anand Swaroop for leading evidence on this additional charge. Additional statement of accused Kalu Christian u/s 313 Cr.PC with respect to the additional statement tendered by SI Anand Swaroop was recorded on 21.08.2012.
19.It is also relevant to mention herein that thereafter again on 31.10.2012, amended charges were framed against both the accused persons, for during the course of final arguments on this date, it had come to the notice of this court that the charges framed in this case were liable to be amended in view of the material on record. As narrated hereinabove, the charges in this case were framed in the year 2009 by the Ld. Predecessor of this court and inadvertently in the said charges, it was accused Zamarai who was shown to have been found in the possession of one bag and accused Christian had been charged with having been found in possession of two bags, though the material on record is to the contrary as per the allegations in the chargesheet and the documents filed by the investigating agency, as narrated hereinabove, it was accused Zamarai who had handed over one bag to accused Kalu Christian and it is therefore accused Zamarai who was to be charged with having been found in possession of two bags one which he had handed over to accused Kalu Christian and the other that was recovered from his possession. Accordingly, vide order FIR No. 26/09 Page No. 13 of 40 State vs. Zamarai @ Doctor SC No. 25/09 dated 31.10.2012, amended charges were framed against the accused persons and accused Zamarai was charged with the offence punishable u/s 29 and 21(b) and (c) of the NDPS Act and accused Kalu Christian was charged only for the offence punishable u/s 29 and 21(b) of the NDPS Act r/w section 14A of the Foreigners Act. It is also relevant to mention herein that charges against accused Kalu Christian were framed u/s 21 (b) for having been found in possession of intermediate quantity of heroin (though allegedly 1.5 Kg of contraband had been recovered from him) and not for having been found in possession of commercial quantity for the alleged recovery of heroin from the accused persons was made on 15.10.2009 i.e. prior to the date of notification dated 18.11.2009 issued by the Government. It is only vide this notification that the Central Government has notified that it is not the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, wherever existence of such substance is possible, which shall be considered for determining the quantity of the contraband recovered in a particular case. Prior to the said notification, in view of judgments pronounced by the Hon'ble Supreme Court and Delhi High Court in cases titled as Ansar Ahmed & Ors. V. State (Govt of NCT of Delhi (123 FIR No. 26/09 Page No. 14 of 40 State vs. Zamarai @ Doctor SC No. 25/09 (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], it was the pure drug content in the recovered substance that used to be considered for determining the quantity of contraband recovered. Thus, in the present case, since as per the FSL report the sample of the contraband that was recovered from the accused Kalu Christian, on analysis, was found containing only 11.6 % of diacetylmorphine, it makes the quantity of heroin allegedly recovered from accused Kalu Christian as 174 gm (which is defined as an intermediate quantity by a notification issued by the Central Government in exercise of powers conferred to it under the NDPS Act).
20.Despite the aforementioned amendment of charges, Ld. Defence counsel Sh. Sahoo had submitted that he did not wish to recall any of the prosecution witnesses and therefore this case was again adjourned for final arguments on 03.12.2012.
21.Subsequent to this, though Ld. Defence counsel Sh. Sahoo has advanced final arguments, the present APP Sh. R.K. Gurjar despite having been granted sufficient opportunities, has not advanced any further final arguments. Ld. Defence counsel has also filed written submissions on FIR No. 26/09 Page No. 15 of 40 State vs. Zamarai @ Doctor SC No. 25/09 record. The main contentions advanced by the Ld. Defence counsel are inter alia:
● There is no evidence brought on record by the prosecution to show that the accused persons had entered into a conspiracy for dealing in drugs. The allegation of the investigating agency that the accused persons were caught red handed while dealing in drugs cannot be believed for despite the fact that there were residential premises near the alleged spot of apprehension of the accused persons, the investigating officer did not make any effort whatsoever to join any occupants of the said premises in the raid. According to the Ld. Defence counsel, in the facts of the present case, therefore the failure of the investigating agency to join public witnesses in the investigation should be taken as fatal to their case.
● The prosecution witnesses are not worthy of any credence for they have falsely deposed that the accused persons were apprised of their legal rights of getting their search conducted in the presence of a Magistrate or a Gazetted Officer and that the accused persons had refused to exercise the said rights. It has been pointed out that the alleged refusal written by the accused persons in their own handwriting on the copy of the notices allegedly issued to them is in exactly the same words which is not otherwise possible, more so when FIR No. 26/09 Page No. 16 of 40 State vs. Zamarai @ Doctor SC No. 25/09 the two coaccused persons are of different nationalities. It has also been pointed out that infact the spelling of the word 'search' is written as 'sarch' by both the accused persons and that this would have been possible only if both of them had been made to copy the said refusal from the same source. It is the submission of the Ld. Defence counsel that though as per the case of the prosecution, the contraband was allegedly recovered from the bags that the accused were carrying in their hands and that therefore it was not mandatory for the investigating officer to have served the accused persons with notice u/s 50 NDPS Act, however since, the members of the raiding team, in particular the IO has deposed that he did subject the accused to a body search after giving him a notice u/s 50 NDPS Act, it is open to the accused to show that the said witness is not speaking the truth and therefore is not a credible witness. Ld. Defence counsel has pointed out that in a case titled as Union of India Vs. Shah Alam & Anr. reported in 2009(1) Drug Cases (Narcotics) 390, the facts before Hon'ble Supreme Court were that two accused persons were subjected to body search in course of which packets of heroin were found in the shoulder bag carried by them and in such facts also Hon'ble Supreme Court had held that the provisions of section 50 FIR No. 26/09 Page No. 17 of 40 State vs. Zamarai @ Doctor SC No. 25/09 should have been complied with and if the same had not been done, it would have a bearing on the credibility of the evidence of the official witnesses.
● The evidence produced by the prosecution itself shows that the samples sent to FSL for examination were not that of the contraband allegedly recovered from the accused persons and that there has been a tampering of the case property.
● The defence taken by the accused Kalu Christian that the police had come to the spot looking for one John and when they could not find him, they falsely implicated this accused, draws credence from the fact that in the disclosure statement of the accused Zamarai, there is a mention that this accused used to deal in drugs alongwith one John. It has also been pointed out by the Ld. Defence counsel that in the arrest memo prepared with respect to the arrest of the accused Kalu Christian, it has been shown by the investigating officer that one John, a friend of accused Kalu Christian has been informed telephonically about his arrest. The contention of Ld. Counsel is that if the investigating officer was aware that accused Zamarai had disclosed about one John being involved in the illegal trafficking of drugs, why did he not make any effort to verify if the alleged friend of accused Kalu Christian whom this accused wanted to convey the fact of his FIR No. 26/09 Page No. 18 of 40 State vs. Zamarai @ Doctor SC No. 25/09 arrest was the same John or not. It is the submission of Ld. Defence counsel that the aforementioned fact shows that the police officers in the present case despite knowing that the accused Zamarai had disclosed about John being his associate falsely implicated the accused Kalu Christian and then wrote the disclosure of accused Zamarai on their own as per their convenience and to suit their own case and that the said illegal acts of the police officials therefore not only makes the case of the investigating agency doubtful against accused Kalu Christian but also against accused Zamarai. ● The fact that though 1.8 Kg and 1.5 Kg of contraband has been shown to have been recovered from accused Zamarai and Kalu Christian respectively, a mere 20% and 11% respectively of the same has been reported as diacetylmorphine by the FSL which in itself shows that the contraband has been planted on the accused persons. ● The fact that both the accused persons have stepped into the witness box and have stated their defence on oath and have subjected themselves to crossexamination must be taken into consideration by this court.
22.In support of his contentions, Ld. Defence counsel has relied upon the following judgments:
FIR No. 26/09 Page No. 19 of 40
State vs. Zamarai @ Doctor SC No. 25/09 ● Charalotte Eve Vs. Narcotics Control Bureau Del, 2000(4) AICLR 645. ● Kamruddin Jamaluddin Pathan Vs. The State of Maharashtra (Bombay) (DB) 1191 Cr.L.J 826. ● Pradeep Kumar Vs. State 1997 JCC 476. ● Noor Aga Vs. State of Punjab and Anr. reported in (2009)12 SCC 161 ● Prem Pal Singh Vs. State of Delhi 2000(3) C.C. Cases HC 124. ● Hari Singh Vs. Govt. of NCT of Delhi 2010(1) JCC 296.
23.As narrated hereinabove though the present APP has not advanced any arguments, Ld. APP Ms. Sushma who was earlier posted in this court had on 30.01.2012 in rebuttal to the arguments made by the defence had inter alia contended that the absence of public witnesses in the raiding team is not a ground to doubt the prosecution's case when the testimony of the prosecution witnesses is otherwise credible. She had also pointed out that the lacuna pointed out by the Ld. Defence counsel in the link evidence produced by the prosecution is not sufficient to draw an inference that the case property has been tampered with. She has also contended that the material on record is sufficient to draw an inference that both the accused persons had acted in conspiracy with each other and in support of her contentions, she had relied upon the following judgments:
● Bilal Ahmed vs. State 2011(1) JCC (Narcotics) 27. ● Santokh Singh Vs. State of NCT of Delhi 2011(4) JCC (Narcotics) 209. ● Iqbal Moosa Patel Vs. State of Gujarat 2011(1) JCC (Narcotics) 35. FIR No. 26/09 Page No. 20 of 40 State vs. Zamarai @ Doctor SC No. 25/09
24.I have carefully considered the submissions made by the Ld. Counsel and have perused the entire record carefully.
25.The first and foremost circumstance that can be said to be proved on record is that despite availability of residential premises near the spot of alleged apprehension of accused persons, no effort whatsoever was made by the investigating officer to join the occupants of the said premises in the proceedings at the spot. The main investigating officer PW3 Inspector Devender Singh when asked in the crossexamination about the availability of residential premises near the spot of apprehension has deposed that the Kuber building in front of which the accused persons were apprehended was a five or a six storeyed building but that the whole building was vacant and no one was residing in that building. However, contrary to this deposition of this witness, PW8 Inspector Satender Sangwan has stated in his crossexamination that there are 3035 flats in the Kuber building and some of them are occupied. Further even if one does accept, the statement of PW3 that there were no occupants in the Kuber building, this IO himself admits that there were residential premises near the Kuber building. Similarly, PW7 Virender Singh Dahiya, a public person occupying H.No. 791 opposite Kuber building and who as per the case of the prosecution was the landlord of accused Kalu Christian has also categorically stated that the building opposite FIR No. 26/09 Page No. 21 of 40 State vs. Zamarai @ Doctor SC No. 25/09 Kuber building was having 11 flats and apart from himself, 11 other tenants were residing in the said building. Thus the fact that there were residential premises stands proved by the statements of the public witnesses. Further, the fact that the IO, despite being asked in the cross examination has brazenly refused to give any reasons for his not requesting the occupants of the said residential premises to join the raiding team does lead to an inference that infact he had not made any efforts to join any public witness in the proceedings. This court is constrained to observe that it has become a regular practice for the police officials of the Special Cell to depose in court casually that though they had made efforts to join passersby in the raiding team, none of the passersby agreed to join the proceedings and left the spot without disclosing their name and addresses. Despite a specific query by this court to the Ld. APP as to why the investigating agency only asks passersby to join the proceedings and does not make an effort to join in the proceedings, the occupants of residential premises near the spot of apprehension so, that at least both the investigating agency and the court are aware of the addresses of the persons who refused to accede to the request of a government public official, there is no explanation in this regard coming forth from the prosecution. It will not be out of place to mention herein that in all of the Special Cell cases tried by this court, FIR No. 26/09 Page No. 22 of 40 State vs. Zamarai @ Doctor SC No. 25/09 there is not a single case where the investigating officer has been able to join a public witness in the proceedings though in all NCB cases, the said investigating agency is able to make public witnesses join their investigation. No doubt, one cannot argue with the contention of Ld. APP that public persons are hesitant to join police proceedings, but the least that is expected is that the investigating agency must be able to satisfy the court that genuine and sincere efforts were made by the investigating officer to make public persons join the proceedings.
26.It has been repeatedly held by the higher courts that in such cases as the present one, the investigating agency must show that sincere efforts were made to join independent witnesses and that the investigating agency cannot merely take a stand that public witnesses refused to join the investigation. In this regard particular reference is made to the judgments reported as Ritesh Chakravarty Vs. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150, Anup Joshi Vs. State 1999(2) C.C. Cases 314, Roop Chand Vs. State of Haryana 1999(1) C.L.R 69. In Ritesh's case (supra), the Hon'ble Supreme Court has depreciated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on request of the police officials. In the other two judgments, it has been observed by the Hon'ble High Courts FIR No. 26/09 Page No. 23 of 40 State vs. Zamarai @ Doctor SC No. 25/09 that the failure to proceed against the public persons who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence. Further, very recently, as pointed out by Ld. Defence counsel, the Hon'ble Punjab and Haryana High Court in the case titled as Bhupender Singh Vs. State of Punjab (supra) has held that where there is a contradiction between the testimony of two official witnesses with respect to the joining of public witnesses, their statements have to be scrutinized very cautiously.
27.Now thus in the present case, in the absence of the independent persons witnessing the search proceedings, it becomes incumbent upon this court to scrutinize the prosecution evidence very cautiously and if one does so, it becomes apparent that the prosecution has failed to prove that as long as the seized contraband remained in the malkhana, the same was not tampered with. As per the own version of the prosecution, the contraband in the present case was allegedly seized on 15.05.2009 and the samples thereof were sent to FSL, Rohini only on 18.06.2009. In other words, there is a delay of more than a month in sending the samples for testing. No doubt, though it has been rightly contended by Ld. APP that as long as it is shown by the prosecution that the seized articles had been kept in proper custody during the period it was kept in the malkhana, the delay in FIR No. 26/09 Page No. 24 of 40 State vs. Zamarai @ Doctor SC No. 25/09 sending the sample for testing would not be fatal to its case, the facts of the present case throw a grave doubt with respect to the proper custody of the contraband. As per the deposition of PW9 Rakesh Kumar, he had been handed over at the spot by Inspector Devender Singh, four sealed pullandas, FSL form in duplicate, carbon copy of seizure memos and the rukka of this case with directions that the same be produced before the SHO PS Lodhi Colony for registration of FIR and for deposit of case property with the MHCM. This witness has deposed that on the aforementioned instructions, he handed over the rukka to Duty officer PS Special Cell, Lodhi Colony and deposited the four sealed pullandas, FSL form in duplicate and the copy of seizure memo with the SHO and the SHO Inspector Govind Sharma thereafter put a seal on the pullandas, FSL forms and seizure memos and then the SHO deposited the case property with the MHCM. PW8A Inspector Govind Sharma has also similarly deposed that on 15.05.2009 at about 10.00 PM, ASI Rakesh Kumar appeared before him and deposited four pullandas marked A, B, S1 and S2, two FSL forms and two carbon copies of seizure memo before him. According to his deposition all the four pullandas were found sealed with the seal of DSN and he thereafter put his own seal of GS on the pullandas and the FSL forms and the copies of the seizure memos and then handed over all of them to MHCM. Now the MHCM, PW4 ASI Baxla in his FIR No. 26/09 Page No. 25 of 40 State vs. Zamarai @ Doctor SC No. 25/09 examination in chief does not talk about the deposit of any FSL form with him and secondly, the register no.19 produced by this witness shows that it is nowhere mentioned in the relevant entry that the pullandas deposited with him by the SHO were also bearing the seal of GS. The documentary evidence namely the register no.19 produced by the prosecution shows that in the relevant entries no. 1349 and 1350, Ex.PW4/A and PW4/B, there is no mention whatsoever that the pullandas deposited with the MHCM were bearing the seal of GS. Though Ld. APP Ms. Sushma had tried to contend that as a general practice, the MHCM merely copies the seizure memo in register no.19 and therefore there is no mention of the seal of SHO on the pullandas neither PW8A Inspector Govind Sharma nor PW4 ASI Baxla have deposed with respect to the said practice. Both the witnesses were categorically confronted with Ex.PW4/A, the relevant entry of register no.19 and it was pointed out to them that there is no mention of the seal of GS on the same. Yet despite this specific confrontation, both the witnesses did not furnish any such explanation for the same. On the other hand, ASI Baxla in his crossexamination admitted that he had made entry no. 1349 as per the description of the case property after minutely checking the same. Similarly, PW8A stated in his crossexamination that after the entry was made by malkhana incharge, he had read it and had then signed it but had not found it FIR No. 26/09 Page No. 26 of 40 State vs. Zamarai @ Doctor SC No. 25/09 necessary to make any addition or alteration in the said entry despite the fact that there was no mention of any seal of GS in the relevant entry. Thus, the documentary evidence produced by the prosecution and the statements made in their crossexamination by MHCM and SHO concerned show that there was no seal of GS on the samples when the same were deposited in the malkhana on 15.05.2009. The said seal is however shown to be affixed on the samples on 18.06.2009 when the samples were sent to FSL. In such view of the matter, the tampering of the case property cannot be ruled out at all. It is also to be taken note of that in the present case though as per the investigating officer, he had prepared the FSL form in duplicate and both the copies of the FSL form were sent for deposition, MHCM ASI Baxla does not depose that any such forms were deposited with him. Further though as per the deposition of PW8A, Inspector Govind Sharma, he had signed on both the copies of the FSL form (original as well as the carbon copy), no such signature of the SHO is found on the carbon copy of the FSL from filed on record alongwith the chargesheet.
28.The aforementioned lacuna in the case of the prosecution does indicate that the provisions of section 55 of the NDPS Act have not been complied with by the investigating agency in the present case. As per the provisions of section 55 of the NDPS Act, an officer incharge of a police station is FIR No. 26/09 Page No. 27 of 40 State vs. Zamarai @ Doctor SC No. 25/09 bound to take charge of and keep in safe custody, all articles seized under the NDPS Act.
29.In a case titled as Eza Val Okeke Vs. NCB reported in 2005(1) C.C. Cases (HC) 72, Hon'ble Delhi High Court after noting that the prosecution had not been able to prove that the contraband allegedly recovered from the accused was properly seized, properly preserved, acquitted the accused. In another case titled as Gurbaksh Singh Vs. State of Haryana 2001(3) SCC 28, the Hon'ble Supreme Court has held that though the provision of section 52 and 57 are directory and the violation of these provisions do not ifso facto violate the trial or conviction, the investigating agency cannot totally ignore these provisions and such failure will have a bearing on the appreciation of the evidence regarding arrest of accused and seizure of article. In another judgment titled as Valsala Vs. State of Kerala pronounced in 1993 SCC 665, after taking note that there is no evidence worth mentioning whether the articles were seized or sealed by the officer incharge, Hon'ble Supreme Court acquitted the accused by holding that it could not be held that the article seized from the accused were properly sealed and preserved and therefore were the same that were sent to the Chemical Examiner. The Hon'ble Supreme Court in the said case also clearly observed that though FIR No. 26/09 Page No. 28 of 40 State vs. Zamarai @ Doctor SC No. 25/09 the provisions of section 52 of the NDPS Act are not mandatory, the prosecution has to lead satisfactory evidence to show what was seized was sent to the Chemical Examiner. Similarly, in another case titled as State of Rajasthan Vs. Daulat Ram AIR 1980 SC 1314, the Hon'ble Supreme Court held that it is the duty of the prosecution to prove that while in their custody, the sample was not tampered with before reaching the Chemical Analyst.
30.In another judgment pronounced by Hon'ble Delhi High Court in a case titled as Rishi Dev Vs. State Crl. Appeal No. 757 of 2000 and CRL M (B) A. No. 799/2007, the Hon'ble Delhi High Court after taking note of the fact that though the delay in sending a sample for testing is not per se fatal to the case of the prosecution, observed that the prosecution is however under a duty not only to explain the reasons for the delay but has also to show that the samples were kept in proper custody during the period they were deposited in malkhana and the time it was sent for testing. The Hon'ble Delhi High Court in para 19 of the said judgment categorically held that the trial courts must satisfy themselves that the investigating agency has strictly complied with the requirement that the sample should be sent for testing within 72 hours and if there has been a delay in the said regard, the investigating agency has been able to FIR No. 26/09 Page No. 29 of 40 State vs. Zamarai @ Doctor SC No. 25/09 satisfactorily explain the said delay. The Hon'ble Delhi High Court has categorically held that the reasons for the insistence of such a compliance is that when a sample is kept in a police malkhana, under the seals of the police officials themselves, there is every possibility that the samples could be tampered and again resealed by the very same officials by again affixing the same seals and therefore to prevent the same, the legislature had thought it fit to lay down that the sample must be sent within 72 hours of its seizure. The Hon'ble Delhi High Court has reiterated the dicta laid down by Hon'ble Supreme Court in Valsala's case and observed that the prosecution is under a duty to show as to what happened during the period the seized article was kept in malkhana and before it was sent belatedly to the FSL laboratory. The Hon'ble Delhi High Court has also categorically held in para 14 of its judgment that no doubt trafficking of narcotic drugs is menace to the society but in the absence of satisfactory proof that what was seized from the appellant alone was sent to the Chemical Examiner, the Courts cannot convict an accused under the NDPS Act.
31.As narrated hereinabove, in the present case, there is a delay of one month in sending the sample for examination. There is not a word in the chargesheet filed for the reasons of the said delay. Though Ld. APP Ms. Sushma had contended that the said delay does not cause any prejudice to the case as the seals on the sample tested by the FSL laboratory were FIR No. 26/09 Page No. 30 of 40 State vs. Zamarai @ Doctor SC No. 25/09 found tallying with the seals found on the FSL form, the said fact loses much of its significance in view of the above discussion which shows that the prosecution has failed to prove that the said seals were put on the pullandas on the date of their deposit in the malkhana. Not only has the prosecution failed to give any reason for the delay in sending the sample, there is also no cogent evidence produced on record to show as to in whose possession the seal DSN remained after its use at the spot. Though PW Devender Singh has deposed that he had handed over his seal of DSN after use to Satender Sangwan, this police official Sangwan has not uttered a word in his deposition that the seal was handed over after its use to him. In view of the aforementioned lapses on behalf of the investigating agency, the contentions raised by the defence (elaborately referred to in para 21 hereinabove) in particular the contentions made with respect to the refusal written by both the accused persons, to the notices issued u/s 50 NDPS Act, in exactly the same words (despite it not being the prosecution's case that the said refusal was dictated to them), and the small percentage of diacetylmorphine found in the recovered substances, cannot be brushed aside lightly. No doubt in the present case, the accused persons have been charged for serious offences under the NDPS Act but that does not at all mean that the grave suspicion raised against them can be held to be a substitute for legal evidence.
FIR No. 26/09 Page No. 31 of 40
State vs. Zamarai @ Doctor SC No. 25/09
32.It has been held repeatedly reiterated by the Hon'ble Supreme Court in its various judgments that it must be borne in mind that severer the punishment, greater has to be the care taken to be seen that the case of the prosecution is proved beyond all reasonable doubt. In State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed". The Apex Court in the case of Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. It has also been observed by the Hon'ble Supreme Court in the said case that though the standard of proof required to prove the guilt of the accused on the prosecution is 'beyond all reasonable doubt.' In another recent case titled as Kuldeep Singh Vs State of Punjab reported in 2011 Cr. L. J. 2672 where the facts were inter alia that seized bags of contraband sealed at the spot were reopened at the police station for drawing out of samples, it was FIR No. 26/09 Page No. 32 of 40 State vs. Zamarai @ Doctor SC No. 25/09 held by Hon'ble Supreme Court that the entire search and seizure procedure in such facts stands vitiated and the accused is liable to be acquitted. The Hon'ble Supreme court taking note that the case property once sealed was reopened held that the entire search and seizure proceedings stood vitiated. The said judgment though not applicable in the facts of the present case show the importance that the Apex court attaches to the procedures relating to search, seizure and proper custody of contraband in the cases being tried under the NDPS Act.
33.In view of the discussion hereinabove, it is hereby held that the prosecution has failed to prove beyond reasonable doubt that the substance allegedly recovered from the accused persons was not tampered with, whilst being in the custody of the investigating agency and therefore both the accused persons will have to be acquitted of the charges against them u/s 21 and 29 of the NDPS Act.
34.However, as regards the offence punishable u/s 14A of the Foreigners Act, Ld. Defence counsel has been unable to point out any infirmity in the evidence produced by the prosecution in support of the charge for the said offence. In fact, the accused himself in his statement recorded u/s 313 Cr.PC on 21.08.2012, has clearly admitted that his visa had expired in the year 2008 and therefore it is clear that he did not have any valid document to stay in India on the date of his apprehension. Accordingly, accused FIR No. 26/09 Page No. 33 of 40 State vs. Zamarai @ Doctor SC No. 25/09 stands convicted of the charges u/s 14A Foreigners Act. To come up for arguments on sentence in this regard on 04.05.2013. Announced in open Court on this 30th day of April, 2013 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No. 26/09 Page No. 34 of 40 State vs. Zamarai @ Doctor SC No. 25/09 FIR No. 26/09 PS Special Cell State Vs. Zamari @ Doctor etc 04.05.2013 Present: Ld. APP for the State.
Convict Kalu Christian from JC.
Ld. Defence Counsel Sh.A.K.Sahoo.
The case is today fixed for arguments on sentence for the accused has been convicted for offence punishable u/s 14A Foreigners Act though he stands acquitted of the offence punishable u/s 21 of the NDPS Act.
I have heard the Ld. APP for the State and Ld. Defence Counsel and the convict himself.
Ld. APP for the State has submitted that the maximum punishment for the offence punishable u/s 14A of the Foreigners Act is upto 5 years and that the convict having been found staying in India without any valid documents should be sentenced to maximum imprisonment. He further submits that heavy fine be also imposed upon him.
Ld. Counsel for the convict, on the other hand has submitted that apart from this case, the convict is not involved in any other case and he has therefore prayed that a lenient view be taken against him and he be FIR No. 26/09 Page No. 35 of 40 State vs. Zamarai @ Doctor SC No. 25/09 sentenced to minimum imprisonment i.e. period already undergone by him and be imposed minimum fine. The convict present in court has also prayed that he had overstayed in India after the expiration of his visa only because he was facing financial hardships and wanted to start a business in India and was making efforts to get his visa extended.
I have given careful consideration to the submissions made by Ld. APP and the convict. Keeping in view that this convict has not been found guilty of having committed any offence under the NDPS Act and also taking into consideration that he has no previous criminal antecedents and that he has already spent almost 4 years in judicial custody, this court is of the considered opinion that the interest of justice would be met if the convict is sentenced to imprisonment for the period already undergone by him i.e. w.e.f. 15.05.2009 to 04.05.2013 and a fine of Rs. 5000/ is imposed upon him. Fine paid.
It is also made clear that since the convict has been acquitted of the offence punishable u/s 21 of the NDPS Act, the State in terms of the judgment of the Hon'ble Delhi High Court dated 03.06.2010 pronounced in Writ Petition(Civil) No.4663 of 2008 Gabriel O. Ajisafe and others vs FRRO & Ors, (in the said judgment, it has been held by the Hon'ble Delhi High Court that in view of the special provisions of The Foreigners Act, FIR No. 26/09 Page No. 36 of 40 State vs. Zamarai @ Doctor SC No. 25/09 1946 which lay down special guidelines, a foreign national acquitted by a court of India is not to be detained for an unnecessarily long period and that the prosecution agency is under a duty to inform the FRRO within 21 days of the judgment of acquittal whether it intends to file an appeal against the judgment of acquittal and in case no intimation is given by the prosecution within this stipulated period, the FRRO will be at liberty to deport the foreign national as per the laid down procedure) is hereby directed the convict Kalu Christian, who is a Foreign national be released from JC immediately and handed over to FRRO and the FRRO be informed by State within 21 days hereof about its decision to file an appeal against the present judgment vide which the convict has been acquitted for the offence punishable u/s 21 NDPS Act. In case no such intimation is given within a period of 21 days, this convict may be deported as per the provisions of Foreigners Act.
Copy of the order be sent to Jail Superintendent and FRRO, R.K. Puram. Copy of the judgment and this order be also given to the convict as prayed for.
(Anu Grover Baliga)
Spl. Judge, NDPS/N. Delhi
04.05.2013
FIR No. 26/09 Page No. 37 of 40
State vs. Zamarai @ Doctor SC No. 25/09
FIR No. 26/09
PS Special Cell
State Vs. Zamari @ Doctor etc
04.05.2013
Present: Ld. APP for the State.
Convict Kalu Christian from JC.
Ld. Defence Counsel Sh.A.K.Sahoo.
The case is today fixed for arguments on sentence for the accused has been convicted for offence punishable u/s 14A Foreigners Act though he stands acquitted of the offence punishable u/s 21 of the NDPS Act.
I have heard the Ld. APP for the State and Ld. Defence Counsel and the convict himself.
Ld. APP for the State has submitted that the maximum punishment for the offence punishable u/s 14A of the Foreigners Act is upto 5 years and that the convict having been found staying in India without any valid documents should be sentenced to maximum imprisonment. He further submits that heavy fine be also imposed upon him.
Ld. Counsel for the convict, on the other hand has submitted that apart from this case, the convict is not involved in any other case and he has therefore prayed that a lenient view be taken against him and he be FIR No. 26/09 Page No. 38 of 40 State vs. Zamarai @ Doctor SC No. 25/09 sentenced to minimum imprisonment i.e. period already undergone by him and be imposed minimum fine. The convict present in court has also prayed that he had overstayed in India after the expiration of his visa only because he was facing financial hardships and wanted to start a business in India and was making efforts to get his visa extended.
I have given careful consideration to the submissions made by Ld. APP and the convict. Keeping in view that this convict has not been found guilty of having committed any offence under the NDPS Act and also taking into consideration that he has no previous criminal antecedents and that he has already spent almost 4 years in judicial custody, this court is of the considered opinion that the interest of justice would be met if the convict is sentenced to imprisonment for the period already undergone by him i.e. w.e.f. 15.05.2009 to 04.05.2013 and a fine of Rs. 5000/ is imposed upon him. Fine paid.
It is also made clear that since the convict has been acquitted of the offence punishable u/s 21 of the NDPS Act, the State in terms of the judgment of the Hon'ble Delhi High Court dated 03.06.2010 pronounced in Writ Petition(Civil) No.4663 of 2008 Gabriel O. Ajisafe and others vs FRRO & Ors, (in the said judgment, it has been held by the Hon'ble Delhi High Court that in view of the special provisions of The Foreigners Act, FIR No. 26/09 Page No. 39 of 40 State vs. Zamarai @ Doctor SC No. 25/09 1946 which lay down special guidelines, a foreign national acquitted by a court of India is not to be detained for an unnecessarily long period and that the prosecution agency is under a duty to inform the FRRO within 21 days of the judgment of acquittal whether it intends to file an appeal against the judgment of acquittal and in case no intimation is given by the prosecution within this stipulated period, the FRRO will be at liberty to deport the foreign national as per the laid down procedure) is hereby directed the convict Kalu Christian, who is a Foreign national be released from JC immediately and handed over to FRRO and the FRRO be informed by State within 21 days hereof about its decision to file an appeal against the present judgment vide which the convict has been acquitted for the offence punishable u/s 21 NDPS Act. In case no such intimation is given within a period of 21 days, this convict may be deported as per the provisions of Foreigners Act.
Copy of the order be sent to Jail Superintendent and FRRO, R.K. Puram. Copy of the judgment and this order be also given to the convict as prayed for.
(Anu Grover Baliga) Spl. Judge, NDPS/N. Delhi 04.05.2013 FIR No. 26/09 Page No. 40 of 40