Delhi District Court
State vs State ( Air 2003 Sc 1311) Wherein Hon'Ble ... on 3 March, 2016
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IN THE COURT OF MS SHAIL JAIN: SPECIAL JUDGE:
NDPS: 02: CENTRAL DISTRICT: TIS HAZARI :
DELHI
SC NO. 102/12
STATE
versus
Binod Kumar @ Bindu
s/o late Sh Sumer Singh Prasad
r/o N9B/274, Jhuggi Lal Bagh
Azadpur, Delhi.
FIR No. : 203/12
Offence U/S : 20 NDPS Act
Police Station : Crime Branch
DATE OF INSTITUTION: 26/10/2012
DATE OF JUDGMENT:03/03/2016
JUDGMENT
1. As per prosecution case, on 29/07/2012 at 12.15 p.m, at main Ring Road, near Monkey Bridge, Jamna Bazar, Delhi, accused Binod Kumar @ Bindu was found in conscious possession of 139 kg ganja. The accused was arrested and after completion of investigation, the charge sheet was filed.
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2. Accused was charged for the offense u/s 20 NDPS Act, to which accused pleaded not guilty and claimed trial.
3. Prosecution had examined 15 witnesses in all to prove the case against the accused. The substance of the prosecution evidence is as follows:
4. PW1 Sh Vishal Mishra has deposed that he is working as accountant at Environmental Engineering Company. The company is in the business of manufacturing of air filter and used to supply the same in different parts of the country. One vehicle make Vikram having registration no. DL 1LL 5760 being driven by Om Prakash, used to load the filters from other company for the last more than two years. Witness has further deposed that on 28.07.2012, the filters were loaded from their company in the said tempo driven by Om Prakash to be delivered at Stud's Accessories Ltd. Ballabhgarh, Faridabad. The consignment was delivered at the Stud's Accessories Ltd. He had also issued the bill dated 30.07.012 in advance for loading the equipment and delivering the same to Om Prakash, the driver of the said 2 3 Vikram tempo, this consignment was to be delivered at Noida. The said Vikram tempo used to load and deliver their equipment for the last two years. On 30.07.2012 he had issued a certificate Ex PW 1/A.
5. PW2 Inspector Satyabir Singh has deposed that on 03.09.2012 the investigation of this case was transferred to him. He collected the FSL result (Ex PW 2/A). After completion of the investigation the charge sheet was prepared and filed. The NBW's against Vinod Jha and Shambhu Kumar were got issued and the process u/s. 82 Cr. P.C. was also got issued as they were not traceable.
6. PW3 HC Jag Narain has deposed that on 29.07.2012, at about 5.15pm, SHO PS Crime Branch Inspector C.R. Meena called him in his office alongwith register no.19 and handed over to him, two cloth pullandas Mark A and B and 5 plastic sacks bearing Mark 1,2,3,4 and 5 alongwith FSL form, carbon copy of seizure memo. One tempo make Vikram bearing registration no. DL 1LL 9760 which was parked in the PS was also entrusted to him. All the pullandas and 3 4 plastic sacks were having seal impressions of SP and CRM. Inspector C.R. Meena put the FIR No. 203/12 and his signature on all the above mentioned pullandas and plastic sacks. He also handed over to him the carbon copy of seizure memo after mentioning the FIR No. and putting his signatures. He had also handed over to him the keys of said tempo. He made the entry in register no.19 at serial no. 1609 regarding depositing the above mentioned articles in malkhana and Inspector C.R. Meena put his signatures at relevant serial no. in register no.19. Inspector C.R. Meena recorded the DD entry no.7 dated 29.07.2012 at 5.30pm in this regard. At about 9.30pm, SI Virender Singh arrived at malkhana and deposited the jamatalashi articles of the accused. Copy of register no.19 is Ex.PW3/A. As per the instructions of Inspector C.R. Meena on 22.08.2012, he handed over pullanda Mark A sealed with the seal of SP and CRM to Ct. Lalit Kumar vide RC no. 516/21/12 for depositing the same in FSL Rohini alongwith FSL form and other documents. He after depositing the pullanda arrived 4 5 at the PS and handed over one copy of Road Certificate and acknowledgment of FSL to him. On 27.09.2012, Ct. Vijender arrived at the Malkhana and handed over to him one paper parcel sealed with the seal of FSL alongwith result of FSL. Paper parcel was deposited in the Malkhana, entry was made in this regard in Register no.19. He handed over the result to the IO. Copy of Road Certificate is Ex. PW3/B and copy of acknowledgment of FSL is Ex.PW3/C.
7. PW4 HC Dilbagh Singh has deposed that on 29.07.2012 on the basis of ruka, the present FIR was registered on computer through computer operator. Computerized copy of FIR is Ex.PW4/A.
8. PW5 Ct Vijender Kumar has deposed that on 27.09.2012, Inspector Satya Bir Singh handed over to him an authority letter. On the basis of said authority letter, he collected a pullanda sealed with the seal of STY and result of FSL from FSL Rohini. He deposited the sealed pullanda in the Malkhana of PS Crime Branch and from there he reached the office of SOS/Crime Branch and handed over 5 6 the result of FSL to Inspector Satya Bir Singh.
9. PW6 Ct Lalit Kumar has deposed that he took the pulandas along with copy of seizure memo and FSL form to the FSL Rohini.
10. PW7 Santosh Tripathi, SSO, FSL Rohini has deposed that on 22.8.2012 one sealed cloth parcel having seal impression of 'SP' and 'CRM' was received in the office of FSL along with FSL Form having seals of SP & CRM tallying with the seals which were there on the cloth parcel, copy of seizure memo and copy of FIR. On opening the parcel 'A' it was found containing Ex. A i.e. greenish brown colour fruiting and flowering vegetative tops and on physical microscopic, chemical and TLC examination, Ex. A was found to be 'Ganja' (cannabis) as female flowers were also there in Ex. A. The detailed report in this regard is Ex. PW2/A.
11. PW8 Inspector Suhaib Ahmed has deposed that on 29.07.2012, SI Samar Pal along with HC Suresh Tyagi reached at office and informed him regarding the 6 7 information of this case which was written in DD no. 4. He had gone through the contents of mark A. The information was that Vinod Jha supplier of Ganja would reach near Lal Kila along with the huge consignment of Ganja. He can be apprehended , if raided. The ACP, who was also present in the office was also informed in this regard. Thereafter, SI Samar Pal Singh conducted the raid. On 30.07.2012, one report u/s 57 NDPS Act regarding seizure of 139 kg. of Ganja , duly signed by SI Virender Singh was put up before him. He forwarded the same to the office of ACP, SOS . The original report u/s 57 NDPS Act is Ex. PW11/A.
12. Witness has further deposed that on 30.08.2012, investigation of the present case was given to him. Later on further investigation was given to Inspector Satyavir .
13. PW9 Sh Om Parkash has deposed that he used to drive Mahindra Champion no. DL1LL9760. This vehicle belongs to his brother Dhruv Singh. This vehicle is attached with EE Company situated at Kadi Pur,Industrial Area, Gurgaon. On 28.07.2012 , he delivered filter at Studs 7 8 Company , Faridabad, Haryana . He was coming back in his Mahindra Champion vehicle and there was some mechanical defect in said Vikram at Badarpur Border. On the next day, at abut 9AM , he called the mechanic and he got the vehicle repaired. In the meanwhile, one person whose name later on revealed as Binod Kumar came to him and asked him to load his five plastic bags and to take the same to Azad Pur , Delhi . An amount of Rs. 800/ was settled between him and Binod Kumar. Accused Binod Kumar loaded all the five plastic bags, loaded with something, inside his Mahindra Champion. He asked regarding the contents of all the five plastic bags and on this he stated that the bags contain his company article. Accused Binod kumar sat by the side of driver seat and he drove the vehicle. When he reached behind the Red fort near bridge, his vehicle was stopped by the police officials. Police officials asked him regarding the contents of the same. He stated that accused Binod kumar who was sitting besides him loaded those plastic bags and those bags 8 9 belongs to him. Police officials checked those bags and all the five bags were found containing packets of ganja. The police officials had taken the samples from the bags and have taken those sample and the plastic bag in to their possession and also seized the aforesaid vehicle vide seizure memo Ex. PW9/A. He had also given the bills/invoice to the police officials, which was taken into possession by the police vide seizure memo Ex. PW9/B. The vehicle is Ex. PX.
14. PW10 HC Suresh & PW12 Ct Anil Kumar were member of the raiding party. They have deposed in detail about the recovery of contraband from the possession of accused.
15. PW11 ACP Krishan Kumar has deposed that on 29.07.2012, Inspector Suhaib Ahmed Farooqi informed him that HC Suresh had received a secret information from one Secret informer to the effect that one person namely Vinod Jha r/o Azad Pur, Lal Bagh Jhuggi used to deal in ganja and he would proceed towards Azad Pur via ring road to supply 9 10 ganja to someone at about 1112 noon, he can be arrested if raid is conducted. He was also informed that HC Suresh informed regarding the same to SI Samar Pal Singh who later on produced the secret information before Inspector Suhaib Ahmed Farooqi and in turn he was informed. He directed Inspector Suhaib Ahmed Farooqi to take further necessary action by constituting a raiding party. On 30.07.2012, one special report u/s 57 NDPS Act was produced before him. He put his signatures on the same. The report u/s 57 NDPS Act is Ex. PW11/A.
16. PW13 Inspector C R Meena has deposed that on 29.07.2012, at about 4.50PM, Ct. Anil Kumar of SOS Crime Branch arrived at his office and handed over to him seven pullandas mark A, B and 1,2,3,4 and 5, all bearing one seal of SP along with FSL form and carbon copy of seizure memo. FSL form was also bearing same seal of SP . He put his seal of CRM on all the above said seven pullandas Mark A, B, 1,2,3,4 and 5 as well as on FSL form. After inquiring FIR number from the duty officer, he mentioned the same 10 11 and put his signatures on all the seven pullandas, FSL form and carbon copy of seizure memo. At about 5.10PM, he called MHC(M) HC Jag Narain along with register no. 19 in his office and deposited all the above said seven pullandas and documents in the malkhana . HC Jag Narain made the entries in register no. 19 and put his signatures in the relevant column of register no. 19. He recorded DD number 7 at about 5.30PM in this regard. SI Virender Singh arrived in his office at about 9PM and recorded his statement between 9PM to 9.30PM. Copy of DD no.7 is Ex. PW13/A. On 22.08.12, he instructed the MHC(M) to get the sample pullanda along with FSL form and other documents deposited at FSL , Rohini through some other police officials and accordingly MHC(M) sent the case property to FSL . The photocopy of relevant entry of register no.19 is Ex. PW3/A.
17. PW14 Inspector S. P. Singh, first IO of the case, has deposed that on 29.07.12 , HC Suresh received a secret information from the secret informer to the effect that one 11 12 person namely Binod Jha , a resident of Azad Pur, Lal Bagh Jhuggi used to deal in Ganja, would proceed towards Azad Pur via Ring Road to supply ganja to some one at about 1112noon and he can be arrested if a raid is conducted. HC Suresh gave this information to him and he verified the information and inquired from the secret informer and thereafter he produced secret informer before Inspector Suhaib Ahmed Farooqui, who also inquired from the secret informer and passed this information to ACP Sh. K K Sharma. ACP directed Inspector Suhaib Ahmed Farooqui to take further necessary action. He reduced the secret information into writing vide DD no. 4 (PW14/A), copy of the same was produced before Inspector Suhaib Ahmed Farooqui. Thereafter, a raiding party was constituted consisting of himself, HC Suresh , HC Yogender , HC Harvinder, HC Vikram , Ct. Lal Bahadur, Ct. Harinder, Ct. Pankaj , Ct. Ravinder, Ct. Anil . He briefed all the members of raiding party regarding the secret information. He also collected IO Kit bag, electronic weighing machine etc. and 12 13 they all the police officials along with secret informer departed from office in a government vehicle no. DL1CJ5474 and one private car . He made departure entry vide DD no.5 (Ex. PW14/B). Police party along with secret informer reached behind Red Fort, Monkey Bridge. He requested 56 passersby to join the raiding party by telling them the facts of the secret information but none joined and left the place without telling their names and addresses. He made nakabandi near Monkey Bridge, Ring Road and started checking the vehicles. At about 12.15noon one Vikram Tempo of green colour bearing no. DL1LL9760 was found coming from Rajghat side. The secret informer, on seeing the tempo stated that the person, who was sitting besides the driver of the tempo is Bindu @ Binod Jha and he used to carry supply of Ganja for Vinod Jha. After pointing out towards the accused, secret informer left the spot. Witness with the help of staff got stopped the aforesaid vehicle. On inquiry, the name of the person who was sitting besides the driver of the tempo 13 14 revealed as Binod kumar @ Bindu & name of the driver of the tempo was revealed as Om Parkash.
18. Witness has further deposed that he informed accused regarding the secret information and the possibility of recovery of contraband from the accused. He also informed accused regarding his legal right to the effect that their search and the search of the vehicle can be taken in the presence of Gazetted Officer or a Magistrate. He also informed accused that search of the police vehicle and the other vehicle and their search can be taken before the search of accused and search of the tempo was taken but accused refused.
19. Thereafter, he prepared notice under section 50 NDPS Act and gave to accused Binod Kumar @ Bindu. The reply to the notice is Ex. PW10/B. Thereafter, he conducted the search of accused Binod Kumar @ Bindu, nothing was recovered from his search. Thereafter search of the aforesaid tempo was conducted. There were five plastic kattas inside the tempo . He had given serial no.1 to 14 15 5 to these five plastic kattas . The mouth of the plastic katta was tied with plastic sutli . He checked all the five plastic kattas . Plastic katta bearing serial no.1 and 2 were having 25 packets each. Katta bearing serial no.3 was having 30 pkts. Katta bearing serial no. 4 was having 36 packets and plastic katta bearing serial no. 5 was having 23 packets. There were total 139 packets in semi transparent polythenes. All the packets were having khaki colour tape . He opened these semi transparent polythenes and these were found containing flowering tops and seeds. From the physical appearance and smell, these found to be ganja. Thereafter , he weighed each semi transparent polythene containing ganja and it came to be 1kg each. He had taken out sample from each and every packet and 2 samples of 250 gm each were drawn and these two samples were kept in two separate polythene, tied with the rubber band and then the same were kept in two separate cloth parcels and mark A and B were given to the parcels. The remaining ganja was kept in the respective packets and then in the 15 16 respective plastic kattas and the mark 1 to 5 had already been given to these kattas.
20. Thereafter he prepared form FSL at the spot. He affixed his seal i.e. SP on all the five parcels bearing no. 1 to 5 , A and B. The seal after use was given to HC Suresh . Thereafter, he had taken into his possession all the sealed parcels , the FSL Form and also the aforesaid tempo vide seizure memo Ex. PW9/A. He prepared tehrir Ex. PW14/C, and gave the same to Ct. Anil Kumar with the direction to hand over the same to the duty officer. He had also given all the seven sealed parcels, FSL Form and carbon copy of seizure memo to Ct. Anil with the direction to hand over the same to SHO, PS Crime Branch. He directed Ct. Anil to keep the case property etc. in the same tempo and directed him to take the samples from the spot to PS Crime Branch and the tempo was being driven by the driver Om Parkash. He also directed ct. Anil to deposit the aforesaid tempo with MHC(M) and accordingly at about 3.30PM, Ct. Anil left the spot in the aforesaid tempo. After some time SI 16 17 Virender came at the spot. He produced the accused and the documents before SI Virender. SI Virender prepared site plan at his instance.
21. PW15 SI Virender Singh is second IO of the case. He has deposed that On 29.07.2012, duty officer of PS Crime Branch Malviya Nagar informed him that SI Samar Pal Singh had apprehended one accused Binod Kumar @ Bindu along with 139 kg. of ganja behind Red Fort at Monkey Bridge and further investigation was assigned to him. He reached at the spot alone where SI Samar Pal Singh, HC Suresh Kumar, HC Harvinder singh, HC Yogender Singh , Ct. Lal Bahadur Ct. Ravinder and 23 other police officials along with accused Binod Kumar @ Bindu met him. SI Samar Pal Singh produced accused along with documents. He prepared site plan at the instance of first IO, which is Ex. PW15/A. In the meanwhile Ct. Anil came at the spot alone and handed over the computerized copy of FIR and original tehrir to him. He interrogated accused Binod Kumar @ Bindu & recorded his disclosure statement (Ex. 17 18 PW10/C). Accused was arrested by him vide arrest memo Ex. PW10/DX. He also conducted personal search of accused vide personal search memo Ex. PW10/E. During inquiry, OM Parkash , owner of the tempo, had produced the bill/invoice of Studs Accessories Articles, which was taken into possession vide memo Ex. PW 9/B. He deposited personal search articles of accused with MHC(M). On 30.07.2012 he prepared special report u/s 57 NDPS Act (Ex. PW11/A) and produced the same before Inspector Suhaib Ahmed Khan. On 30.08.2012 exhibits of the present case were to FSL Rohini through Ct. Lalit Kumar. Later on the FSL Result (Ex. PW2/A) was received. Further investigation was handed over to Inspector Suhaib Ahmed Khan.
22. Thereafter prosecution evidence was closed.
23. Statement of accused was recorded u/s 313 CrPC wherein the entire incriminating evidence has been put and explained to accused to which he pleaded innocence and false implication. He stated that he has been falsely 18 19 implicated in this case & nothing was recovered from his possession. He has deposed that he is not that Vinod Kumar Jha in respect to whom the secret information was received and he was not transporting any contraband in the vehicle. Accused had stated that he wanted to lead evidence in defense & had examined four defense witnesses.
24. DW1 Sh Suraj has stated that on 28.07.2012, at about 11.30AM, his father Binod Kumar was called by one uncle out of the house. They had a conversation for about 15 minutes. When he came outside to call his father, he was told by that uncle that his father was being taken to PS Darya Ganj for some inquiries. He waited for his father till 22.30AM. Thereafter, he slept. On next day, in the morning at around 7AM, he went to his uncle & narrated the whole incident to his chacha. His uncle asked him to make a call to his father. When he called up at the mobile phone of his father, it was found switched off. He was asked by his chacha to wait for some time and the police might leave him after some time. On the next day i.e. 19 20 30.07.2012, his mother and brother came back from Haridwar . Rest of the inquiries were made by his brother and mother.
25. DW2 Smt Sunita Devi has deposed that on 27/07/12 he along with his elder son Pankaj went to Haridwar in the month of Sawan. Every year on the occasion of Sawan, she used to go to Haridwar. On 29/07/12 she took holy dip at Har Ki Pohri Haridwar and also donated Rs101/ to Shri Ganga Sabha (Regd) Haridwar and for the same, receipt dt 29/07/12 was issued, which is mark A. On 30/07/12 she came back to Delhi and came to know that some police officials of PS Daryaganj had taken her husband for some inquiries and till 30/07/12 his whereabouts were not known. She went to PS Daryaganj for inquiry. The police officials did not allow her to meet her husband initially and thereafter they only allowed her to meet her husband after getting her signatures on certain blank documents and certain filled documents.
26. DW3 SI Ganesh Kumar has deposed that the 20 21 photocopy of complaint dt 30/07/12 made by Sh Vipin Kumar is Ex.DW3/A. Photocopy of the statement of Sh Vipin Kumar is as Ex.DW3/B. Photocopy of the relevant record is Ex.DW3/C.
27. DW4 Sh Vipin Kumr has deposed that on 29/07/2012, again said may be 2011, his nephew namely Golu s/o Binod Kumar came to his house at about 7 a.m. He informed him that his father Binod Kumar had been taken away by some person on the previous night and Binod Kr had not come back to home . Golu also informed him that his mother and elder brother had gone to Haridwar. He had tried to call his brother Binod Kr on his mobile but his phone was switched off. He waited for return of his brother the whole day. Since 29th July was Sunday, he waited that day and on Monday ie 30th July, he sent a FAX to PS Daryaganj about inquiring and lifting away of his brother by police officials of PS Daryaganj. Ex.DW3/A is the copy of the FAX. He was also called by the office of DCP after about a month where his statement was recorded, which is Ex.DW3/B. 21 22
28. I have heard arguments from Sh Subhash Chauhan, Ld Additional P. P for the State and Sh Dinesh Malik, Ld Amicus for accused.
29. Main contention of the Ld Amicus Curiae in this case has been that this is a case of mistaken identity, where accused has been wrongly implicated in place of person named 'Vinod Jha' whereas the name of present accused is 'Binod Kumar'. Entire arguments have been advanced by Ld Amicus Curiae on the point that secret information was received by first IO in respect to the 'Vinod Jha' whereas in the present case, person arrested is 'Binod Kumar', who has nothing to do with 'Vinod Jha' and therefore, the accused should be acquitted.
30. It is also argued by Ld Amicus Curiae on behalf of the accused that there are contradictions in the testimonies of prosecution witness, as some of the witnesses have stated that barricades were put in order to stop the vehicle whereas the IO had stated that they had only put wooden ballias to stop the vehicle. It was also argued on behalf of 22 23 the accused by Ld Amicus Curiae that no public witness was joined in the investigation nor any log book has been placed or proved on record, which could show that actually raiding party had reached the spot. It was also submitted by Ld Amicus Curiae that arrest memo of accused bears the signatures of his wife, although as per defense of accused, wife of accused at that time was in Haridwar and therefore, could not have put signature on the arrest memo and it also shows that all the documents have been prepared at PS and no such raid was conducted. It was also submitted by Ld Amicus Curiae that accused was lifted from his house by the police officials without there being any rhyme or reason for arresting him. With these submissions, it has been prayed by Ld Amicus Curiae that accused be acquitted as false case has been filed against the accused.
31. On the other hand, Sh Subhash Chauhan, Ld Additional P.P had argued that prosecution has proved its case beyond reasonable doubt against the accused. As 23 24 regards confusion in the name of accused ie 'Vinod Jha' and 'Binod Kumar', it has been submitted by Ld Additional P.P that this is merely difference in pronunciation,sometimes people used the letter 'B' as substitute for the letter 'V' ie Binod and Bijay in place of 'Vinod' or 'Vijay', depending upon culture and the society, to which those persons belong. It is also submitted by Ld Additional P.P that in the present case, DW4 Sh Vipin Kumar, who is brother of accused had also mentioned the name of accused as Vinod Kumar and not Binod Kumar in the application moved by him before the senior police officials. Therefore, it cannot be said that it is case of mistaken identity. Ld Additional P.P had also submitted that collective evidence of the prosecution witnesses clearly proves the case against accused beyond reasonable doubt. It has been proved by the prosecution that accused was travelling in Vikram no. DL1LL5760 along with plastic bags containing ganja, contraband has been proved to be ganja by the testimony of PW7 Sh Santosh Tripathi, procedure adopted for 24 25 conducting the raid has been specifically proved by PW10 HC Suresh, PW12 Ct Anil Kumar and PW14 Inspector S.P. Singh. Ld Additional P.P had specifically stressed that it cannot be said that there is no independent witness in the present case as driver of Vikram ie PW9 Sh Om parkash is public witness, who is independent witness and it is also stated by him that accused had sat in his Vikram along with five plastic kattas, which was found containing ganja. With these submissions, it is prayed by Ld Additional P.P that accused be convicted for the offence u/s 20 NDPS Act.
32. I have considered the submissions made by Ld counsel for the parties & evidence led by the parties.
33. In the present case, main contention of Ld Amicus Curiae has been that a secret information received by first IO PW14 Inspector S.P. Singh was in respect to a person called 'Vinod Jha' and not in respect to person called 'Binod Kumar', therefore the entire case of the prosecution is false. Considering the contention of Ld Amicus Curiae, it is important to appreciate the testimony of PW10 HC 25 26 Suresh, PW12 Ct Anil Kumar and PW14 Inspector S.P. Singh in this respect. The testimony of PW10 HC Suresh shows that secret information received in the office was in respect to a person namely Binod Jha, who was working for supply of ganja. It was HC Suresh PW10, who had produced the secret informer before SI S.P. Singh, i.e PW14. Admittedly this is the first information received by HC Suresh in this case. It has been specifically mentioned by HC Suresh that information was in respect to Binod and not that of Vinod. No clarificatory question was put to this witness in cross examination on behalf of the accused by Ld Amicus Curiae. Similarly testimony of PW12 Ct Anil also mentions the name of person, against whom the secret information was received to be Binod and not Vinod. Therefore, it cannot be said that information received by police officials was in respect to some Vinod and not for person namely Binod.
34. Even otherwise, I am of the opinion that name Vinod and Binod are used by the persons commonly depending upon their way of pronunciation and it is based on the 26 27 society to which those persons belong, as it is clear from the testimony of DW4 Sh Vipin Kumar, who is stated to be brother of the accused, he himself has used his name somewhere as 'Vipin Kumar' and somewhere as 'Bipin Kumar'. Similarly in the application moved by DW4 before senior police officials, copy of which is Ex.DW3/A and the statement of DW3 recorded before DCP ie Ex.PW3/B interchangeably used the name of accused as 'Vinod' and 'Binod'. Thus, it cannot be said that it was a case of mistaken identity or that the accused has been falsely arrested in the present case by the police. Therefore, this contention of Ld Amicus Curiae cannot be accepted.
35. As regards the contention of Ld Amicus Curiae in respect to non joining of public witness, on this point Ld Additional P.P has relied upon the case of Karamjit Singh vs State ( AIR 2003 SC 1311) wherein Hon'ble Supreme Court has held that:
"The testimony of police personnel should be treated in the same manner as testimony of any other witness and 27 28 there is no principle of law that without consideration of independent witness their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other purpose and it is not a proper approach to distrust and suspect them without good grounds.
36. As per the judgment Karamjit Singh vs State ( AIR 2003 SC 1311) there is no necessity to examine public witness or for disproving the testimonies of police officials only on the ground that they are the police officials but in the present case, there is independent witness examined by the prosecution namely PW9 Om Parkash, who was driver of vehicle ie Vikram and from that Vikram, contraband was recovered from the possession of the accused. Here, it is important to mention that defense taken by the accused is that he was lifted from his house on 28/07/12 at about 1.30 a.m without mentioning any reason/rivalry between the accused and the police officials. As per the case of the prosecution, acting upon secret information received, raid was conducted near Monkey Bridge and in that raid, 28 29 contraband was recovered from the possession of the accused, while he was travelling in the vehicle ie Vikram and the accused was arrested in the present case. On one hand, defense has stated that accused has been falsely implicated in the present case on the basis of mistaken identity in respect to the name Binod and Vinod. On the other hand, defense taken by the accused is that he was lifted from his house in midnight of 28/07/12. It is very difficult to understand any reason of accused being lifted by the police on 28/07/12 without there being any previous animosity or history against the accused, specially in the light of the fact that defense has not countered or challenged the recovery of ganja, as per secret information received from the spot. Only defense taken by the accused is that secret information was in respect to some Vinod Jha, whereas person arrested is Binod Kumar. This, in itself shows that ambiguous defense has been taken by the accused half heartedly.
37. The collective reading and appreciation of testimonies 29 30 of PW10, PW12 and PW14 clearly proves that secret information was received in respect to a person namely Binod Jha, who is dealing in the supply of ganja and there was also information that ganja would be carried by that person Binod and not Vinod and therefore, raiding party was constituted by following the procedure laid down in NDPS Act. Secret information was conveyed to ACP concerned, who directed for conducting raid.
38. It is also proved on record by testimonies of PW10, PW12 and PW14 that raiding team reached at the spot and took position and at the pointing out by secret informer, vehicle Vikram was stopped and driver of Vikram ie PW9 Om Parkash had stated that bags kept in the vehicle belongs to accused. PW9 Om Parkash was cross examined at length on behalf of the accused but at no place, any suggestion was given to the witness that the goods or contraband being carried in that vehicle did not belong to accused or that there was no such contraband being carried by the accused in that Vikram. Status and position of PW9 30 31 Om Parkash, being driver of Vikram has already been proved by the testimonies of PW1 Sh Vishal Mishra, who has proved that Om Parkash (PW9) used to carry their goods in Vikram no. DL1LL5760 and has also proved that on 28/07/12 certain articles were given to him ie to PW9 Om Parkash for delivering the same at Ballabhgarh, Faridabad. Therefore, testimonies of PW1 proves that PW9 had gone to Ballabhgarh for delivering the goods ie filter at Studs Accessories Ltd. Thus, the testimony of PW1 corroborates the testimony of PW9 and no contradiction or motive has been pointed out against the testimonies of PW1 and PW9 in so deposing.
39. Thus, testimonies of PW1 and PW9 reading conjointly with the statements of other recovery witnesses proves that PW9 Om Parkash had gone to deliver filters to Ballabhgarh on 28/07/12 and while he was returning, accused had taken lift in his Vikram. It is also proved by the testimony of PW9 that accused at that time was having 5 plastic bags, which were put in the Vikram and lateron seized by the police 31 32 during raid.
40. The testimonies of PW10, PW12 and PW14 have clearly proved the procedure conducted by raiding party that they have complied with the provisions of NDPS Act. Notice u/s 50 NDPS Act was given to the accused, reply to which was given by the accused in his own handwriting. It is not the case of the defense that reply to notice u/s 50 NDPS Act ie Ex.PW10/B was not written by accused in his own handwriting. As regards the contradiction of difference in the name of Binod and Vinod, it is also important to mention that all the raiding party members have stated that it has come to their knowledge during the time of apprehension of accused that he is the person, who is supplying ganja for and on behalf of Vinod Jha. Thus, the relationship between present accused and Vinod Jha has already been established by the testimonies of PW10, PW12 and PW14. No cross examination has been conducted of any of those witnesses in this regard.
41. As regards the contradictions pointed out by Ld Amicus 32 33 Curiae in respect to putting barricades or ballias, I am of the opinion that there is no contradiction in the testimonies of reading team and even if there is slight difference in the interpretation of situation, same is not material as to affect the root of the case. PW10 HC Suresh had specifically stated that he does not remember if any barricades was put on the road, thus he has not stated that barricades were not put on the road. PW12 Ct Anil kumar had stated that barricades were put on the road and PW14 Inspector S.P. Singh has also stated that they have put ballias on the road in order to stop the vehicles. No clarification was sought from Ct Anil PW12 regarding nature of barricades put on the road in order to stop the offending vehicle ie Vikram driven by PW9 Om parkash. In the absence of any opportunity to PW12 for explaining the nature of barricades put on the road, I am of the opinion that it cannot be said to be contradiction, which is not major in its nature so as to disprove the case of the prosecution entirely.
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42. As regards the contention of Ld Amicus Curiae of non filing of log book, from the testimonies of prosecution witnesses, it is clear that no question has been put to the witness about the log book. No opportunity has been given to witnesses to explain as to whether any log book was filed or not.
43. As regards the signatures of wife of the accused on arrest memo, for which Ld Amicus Curiae had submitted that no raiding team member had stated that wife of the accused was called at the spot and even, as per defense evidence, wife of the accused was out of town, hence she could not have signed the arrest memo, it is clear from the testimony of PW15 SI Virender Singh, second IO of the case that wife of the accused was not called at the spot rather she was informed on her mobile regarding arrest of the accused, which clearly shows/proves that second IO, PW15 SI Virender Singh, had informed wife of the accused, after arrest of the accused has been made, and only thereafter she had put her signatures on the arrest memo. 34 35
44. Considering the defense evidence led by the accused, I am of the opinion that accused has not been able to disprove the case of the prosecution. Defense taken by the accused is that he was lifted from his house on 28/07/12 in the night when his wife and elder son Pankaj had gone to Haridwar. DW1 Sh Suraj had stated that he was sleeping in his house at that time, at about 11.30 a.m, when police came to his house and took his father with them. In cross examination, Ld Additional P.P had put specific question to the witness about the other siblings present in the house at that time, to which DW1 has specifically stated that he has three sisters and all of them were present in the house at that time. Out of three sisters, youngest sister was in 12th class at that time. It is also clear from the cross examination of DW1 that he did not wake up any of his sister when his father was taken away by some 'uncles'. This shows that this could have been the routine affair for DW1 and accused going out of house in the middle of night, that is why, DW1 has not woken up his sisters. It is also difficult to 35 36 believe that if for the first time accused was taken from his house in middle of the night by some persons, DW1 will keep quite and sleep till morning and only in the morning he will communicate with his uncle DW 4 Sh Vipin Kumar and he will also keep waiting for two days before moving the application to the senior police officials.
45. Though, it is the case of the defense that wife and eldest son of accused had gone to Haridwar on 28/07/12 and reached Delhi on 30/07/12, despite that neither elder son of the accused nor wife of the accused have moved any application before any authority or police official regarding false implication of accused in the present case. Even the application moved by DW4, which is Ex.DW3/A is regarding the fact that accused has been taken to PS without any reason and is made to sit in the PS without any reason. On this application, inquiry was conducted and it was found that accused was apprehended in the NDPS Act case, i.e. present case, as is proved by DW3 SI Ganesh Kumar and therefore, it was opined by senior police officials that no 36 37 further police action was called for. DW3 has not been re examined on this point nor any other evidence has been led by the defense to show that accused has been falsely implicated in the present case. Only grievance of DW4 in the application Ex.DW3/A is that accused has been arrested by police without any reason, & when it was concluded, after inquiry, that he has been arrested in present case neither any action was taken by DW4 or the family members of the accused nor any complaint of false implication was lodged before any authority by DW4 or members of family of the accused. This proves that case of the prosecution has not been challenged by the accused in any manner & hence proves the authenticity of the raid & recovery of contraband from possession of accused Binod Kumar @ Bindu.
46. The testimony of prosecution witnesses, although they are police officials, inspire confidence and their statements are duly corroborated with the documents. PW10, PW12, PW14 and PW15 had proved beyond 37 38 reasonable doubt that on 29/07/2012 at 12.15 p.m, at main Ring Road, near Monkey Bridge, Jamna Bazar, Delhi, accused Binod Kumar @ Bindu was found in conscious possession of 139 kg ganja. Their testimonies remained unshaken during crossexamination and no concrete reason has been attributed to them for false implication of the accused. The provisions of NDPS Act particularly section 42, 50, section 55 and section 57 have been properly complied with. The samples were sent to FSL within reasonable time. Result (Ex. PW2/A) of FSL proves the contraband to be 'ganja'. For these reasons, the recovery of ganja from the possession of the accused has been proved against accused beyond reasonable doubt. I, therefore, convict accused Binod Kumar @ Bindu u/s 20 NDPS Act, 1985.
ANNOUNCED IN THE OPEN COURT ON 3rd March, 2016 (SHAIL JAIN ) SPECIAL JUDGE: NDPS02 CENTRAL DELHI 38