Delhi District Court
State vs Mohd. Israil on 8 July, 2010
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 138/07
FIR No. 603/06
P.S. Janak Puri
U/s 20/61/85 NDPS Act
State Versus Mohd. Israil
S/o Mohd. Muslim
R/o D263, Papan Kalan,
Sector03, Dwarka,
New Delhi.
Date of Receipt : 04.07.2007
Date of Conclusion of arguments : 05.06.2010
Date of Decision : 05.07.2010
JUDGMENT :
1. The accused Mohd. Israil has been chargesheeted by Police Station Janak Puri for commission of offence under Section 20 NDPS Act.
2. Story of prosecution in brief is that on 27.09.2006, Ins. Dalip Kaushik was on patrolling along with HC Ram Bhaj and Ct. Satish Kumar in the area of PS Janak Puri vide DD no. 43B and while patrolling, the police party reached near C2B, District Park, near MCD Office, Janak Puri at about 6.00 pm. On seeing the police party, one person i.e accused tried to run inside the District Park and on FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 suspicion, he was apprehended by Ins. Dalip Kaushik with the help of staff at about 6.05 pm. On inquiry, that person disclosed his name as Mohd. Israil and on his formal search, he was found having a polythene in his hand. Ins. Dalip Kaushik checked that polythene and on seeing and smelling, it was found containing ganja. On recovery of Ganja, Ins. Dalip Kaushik requested 4 to 5 passersby to join the proceedings, but none obliged and went away expressing their inability, without disclosing their names and addresses. Thereafter, Ins. Dalip Kaushik served a notice u/s 50 NDPS Act upon the accused and also told him about his legal right that his search is to be conducted and if he wants, his search can be conducted in the presence of a Gazetted Officer or Magistrate, who can be called at the spot. The Accused refused for the same and told that as the ganja has already been recovered from his possession, he did not want to call any gazetted officer or Magistrate at the spot. Accused also refused to take the search of the police party. Thereafter, Ins. Dalip Kaushik took out the ganja from the thelley and weighed the same on electronic weighing scale. It was found to be 1 kg 100 gram. Sample of 100 gram was separated from the recovered ganja and was put in a transparent polythene, wrapped in a white cloth and prepared the pullanda. The pullanda was given mark 1A. Remaining Ganja was kept back in the same polythene, wrapped in a white cloth and pulanda was prepared and that pullanda was marked as serial no. 1. Both the pullandas were sealed with the seal of DK by Ins. Dalip FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 Kaushik. Ins. Dalip Kaushik filled in Form FSL and he affixed his seal of DK on the Form FSL. Both the pullandas and FSL Form were seized. Seal after use was handed over to Ct. Satish Kumar. Case property was sent to PS along with rukka through HC Ram Bhaj. Case was got registered. The investigation was carried out. Site plan was prepared. Accused was arrested. After completion of the investigation, the charge sheet against the accused was filed in the Court. The copies were supplied.
3. The accused Mohd. Israil was charged for the offence punishable U/s 20 NDPS. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
4. Prosecution in order to bring home the guilt of the accused, examined 9 witnesses and thereafter, prosecution evidence was closed.
5. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied the entire evidence and stated that he has been falsely implicated in this case. Accused further stated that he is innocent. He was lifted from his tea shop situated adjacent to MCD Office, near Distt. Center, Janak Puri. Thereafter, Rs. 50,000/ was demanded from him. He somehow arranged Rs. 20,000/ after taking the same from his neighbour as a loan after mortgaging his FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 house/jhuggie and gave that sum of Rs. 20,000/ to SI Dalip Kaushik. His thumb impressions were obtained on some blank papers and he was falsely implicated in this case. He also examined Ms. Sabrul Khatoon as DW1 in defence evidence. Thereafter the case was fixed for final arguments.
6. I have heard arguments from the learned Additional Public Prosecutor for the State, learned Defence counsel for the accused person and perused the record.
7. Ld. Addl. PP submitted that in the present case there were three recovery witnesses that is PW2 Ct. Satish Kumar, PW3 HC Ram Bhaj and PW9 Ins. Dalip Kaushik and they all supported the prosecution case. It has been proved on record that on 27.09.2006, PW9 Ins. Dalip Kaushik, PW3 HC Ram Bhaj and PW2 Ct. Satish Kumar were patrolling in the area of PS Janak Puri vide DD no. 43B, proved as Ex. PW2/A. While patrolling, the police party reached near C2B, Distt. Park, near MCD Office, Janak Puri, Delhi at about 6.00 pm. On seeing the police party, one person tried to run inside the District Park and on suspicion, he was apprehended by PW9 Ins. Dalip Kaushik with the help of staff at about 6.05 pm. On inquiry, that person disclosed his name as Mohd. Israil and on his formal search, he was found having a polythene in his hand. PW9 Ins. Dalip Kaushik checked that polythene and on seeing and smelling, it FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 was found containing ganja. On recovery of Ganja, PW9 Ins. Dalip Kaushik requested 4/5 passersby to join the proceedings, but none obliged and went away expressing their inability, without disclosing their names and addresses. Thereafter, without wasting time, a notice u/s 50 NDPS Act proved as Ex. PW2/B was served upon him by PW
9. PW9 Ins. Dalip Kaushik also told the accused about his legal right that his search is to be conducted and if he wants, his search can be conducted in the presence of a Gazetted Officer or Magistrate, who can be called at the spot. PW9 also told him that he has a right to take the search of the members of the raiding party, before his search is conducted and notice given to this effect is proved as Ex. PW3/A. The Accused refused for the same vide his refusal proved as Ex. PW2/C and told that as the ganja has already been recovered from his possession, he did not want to call any gazetted officer or Magistrate at the spot. Accused also refused to take the search of the police party. Thereafter, PW9 Ins. Dalip Kaushik took out the ganja from the thelley and weighed the same on electronic weighing scale. It was found to be 1 kg 100 gram. Sample of 100 gram was separated from the recovered ganja and was put in a transparent polythene, wrapped in a white cloth and prepared the pullanda. The pullanda was given mark 1A. Remaining Ganja was kept back in the same polythene, wrapped in a white cloth and pulanda was prepared and that pullanda was marked as serial no. 1. Both the pullandas were sealed with the seal of DK by PW9 Ins. FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 Dalip Kaushik. PW9 Ins. Dalip Kaushik filled in Form FSL and he affixed his seal of DK on the Form FSL. Both the pullandas and FSL Form were seized vide seizure memo proved as Ex. PW2/C, by PW
9. Seal after use was handed over to PW2 Ct. Satish Kumar by PW
9. Thereafter, PW9 prepared rukka Ex. PW9/A and handed over the same to PW3 HC Ram Bhaj along with FSL form, copy of seizure memo and case property with instruction to hand over rukka to duty officer and remaining to SHO PS Janak Puri for depositing in the Malkhana. PW3 HC Ram Bhaj left the spot at about 7.30 pm and reached the PS and handed over the rukka to PW6 ASI Satbir Singh duty officer who recorded FIR Ex. PW6/A. PW3 HC Ram Bhaj also handed over the sealed parcels, FSL Form and copy of seizure memo to PW8 Ins. Babu Lal. PW8 Ins. Babu Lal also affixed his seal of BL on all the pullandas and FSL Form. PW8 Ins. Babu Lal also wrote FIR number on all the three pullandas, Form FSL and copy of seizure memo and deposited the case property, FSL form and copy of seizure memo in the malkhanna with PW5 HC Ram Niwas, who recorded entry no. 3129 in register no.19 Ex. PW5/A. After registration of the FIR, PW3 HC Ram Bhaj handed over the copy of FIR and rukka to PW1 SI Deshraj and PW1 SI Deshraj along with PW3 returned to the spot. PW1 SI Deshraj inspected the site and prepared the site plan Ex. PW1/A at the instance of PW9 Ins. Dalip Kaushik. PW1 SI Deshraj gave a notice u/s 52 NDPS Act proved as Ex. PW1/B to the accused and arrested him vide arrest FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 memo Ex. PW1/C and conducted his personal search vide memo Ex. PW1/D and in his personal search, one purse containing cash and some visiting cards and carbon copy of notice u/s 50 NDPS Act Ex. P 1 were recovered.
8. Ld. Addl. PP further submitted that on 16.10.2006, one sealed pullanda having seals of DK and BL as well as FSL Form were sent to FSL vide RC no. 50/21 through PW4 HC Ashwini and copy of RC is proved as Ex. PW5/B and HC Ashwini after depositing the same at FSL, handed over the receipt to PW5 HC Ram Niwas. Case property was not tampered with by MHC(M) and HC Ashwini till it remained in their custody. FSL Results Ex. 1/F and Ex. PW1/G were received, according to which sample/exhibit was found to contain "Tetrahydrocannabinol" which is main constituent of Cannabis Plant and was identified to be flowering portions of Indian Hemp Plant (Ganja). Ld. Addl. PP submitted that all the recovery witnesses have stood through the test of crossexamination, no material has come on record, which could help the accused persons in any way. Mandatory provisions of Section 50 NDPS Act has been complied with. Case property was also sealed by the SHO and thereafter, same was deposited with the MHCM. MHCM was examined as PW5 and he has also supported and corroborated the testimony of other witnesses that case property was deposited with him and entires in this regard were made in register no. 19. MHCM and other witnesses have FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 stated that till the case property remained in their custody, it was not tampered with. Ld. Addl. PP submitted that recovery of contraband from the possession of the accused has been proved ; all the mandatory provisions of NDPS Act have been complied with. It is prayed that as prosecution has fully discharged its onus, accused be held guilty and convicted.
9. Learned defence counsel submitted that seal after use was given to PW2 Ct. Satish, but no document was prepared while handing over or taking back the seal. Seal was also handed over to one of the member of the raiding party i.e. Ct. Satish, examined as PW2 and seal was also received back by Ins. Dalip Kaushik by PW2 on the very next day, whereas samples were sent to FSL on 16.10.2006, meaning thereby that Ins. Dalip Kaushik received back the seal before the samples were sent, therefore, possibility of tampering with the case property cannot be ruled out.
10. After hearing the arguments and going through the record, I found that it is mentioned in the seizure memo Ex. PW2/C itself that seal after use was given to Ct. Satish. No document was prepared, when the seal was received back. The contention of the learned defence counsel is that possibility of tampering with the case property cannot e ruled out as the seal was received back by Ins. Dalip Kaushik before the samples were sent to FSL. But the record shows that on FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 27.09.2006 itself, the case property was deposited in the Mal khana by Ins. Babu Lal after putting his seal of BL and from the Mal khana, the case proprety was taken by HC Ashwini examined as PW4. There is no such suggestion to the MHCM that while the case property remained in his custody, it was tampered with by SI Dalip Kaushik. Even other, when the case property was received in the FSL, the seals were found intact as is evident from the FSL report Ex. PW1/G. Even, MHCM PW5 HC Ram Niwas and PW4 HC Ashwini stated that seals were intact on the case property, therefore, I do not find any merit in the contention of learned defence counsel that the case property was tampered with.
11. Learned defence counsel submitted that the accused was apprehended from a public place i.e from Footpath, District Park, C 2B, Janak Puri and there were public persons available near and on the spot, but no public person was joined in the raiding party. Even after, the accused was apprehended, no sincere efforts were made by the police to join the public persons in the investigation. Only the police officials are the recovery witnesses, who have been examined as PW2 Ct. Satish, PW3 HC Ram Bhaj and PW9 Ins. Dalip Kaushik and there is no corroboration by any public witness to their testimonies, which itself creates doubt about the truthfulness of the story of the prosecution, particularly when the accused was apprehended from a public place. It is prayed that benefit of doubt be FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 given to accused and he be acquitted.
12. After hearing the arguments and going through the record, I found that in the present case, there are three recovery witnesses i.e. PW2 Ct. Satish, PW3 HC Ram Bhaj and PW9 Ins. Dalip Kaushik. All these three recovery witnesses have stood through the test of cross examination and there is nothing to disbelieve them. They have also fully corroborated and supported each other. According to the testimonies of all these three witnesses, on the spot, PW9 SI Dalip Kaushik requested four/five passersby to join the proceedings, but all of them refused and went away without telling their names and addresses. This statement of PW9, which is well corroborated by PW2 and PW3 clearly shows that efforts were made to join the public persons in the raiding party, but none obliged. Therefore, this contention of the learned defence counsel that no efforts whatsoever was made by the police to join the raiding party has no merits.
13. So far as the evidentiary value of the statements of PW2 Ct. Satish, PW3 HC Ram Bhaj and PW9 Ins. Dalip Kaushik is concerned, law is very clear that employment of a witness has nothing to do with the evidentiary value and credibility of that witness. Testimony of a witness cannot be simply discarded due to his employment. In my opinion, it has to be seen as to whether the witness is trustworthy, credible and has stood through the test of crossexamination. If the FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 witness is believable, trustworthy and credible and his testimony has remained unimpeached during the crossexamination, then his statement can certainly be relied upon. But, if he is not trustworthy or has not stood through the test of crossexamination, then no reliance can be placed upon such a witness, even if he is a public witness. All the three recovery witnesses have stood through the test of cross examination and they are believable and trustworthy, I find no reason to discredit them.
14. In the present case, prosecution has examined nine witnesses. Ins. Dalip Kaushik along with Ct. Satish and HC Ram Bhaj were patrolling in the area vide DD no. 43B proved as Ex. PW2/A and they reached near C2B, District Park, Janak Puri, Delhi. On seeing the police party, accused started running. He was apprehended due to suspicion and was found in possession of contraband, which he was carrying in a polythene in his hand. Notice u/s 50 NDPS Act Ex. PW 2/B was served upon the accused. He was also told about his legal rights that he can get his search conducted either before a gazetted officer or Magistrate, who can be called on the spot, but the accused refused to exercise his legal rights and his refusal was recorded by PW9 Ins. Dalip Kaushik as the accused was not knowing how to write. The police party also offered their search to the accused vide memo Ex.PW3/A, but the accused refused to take their search also. Thereafter, the search of the accused was taken, but no further FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 contraband were recovered. Contraband, which was recovered was weighed and it was found to be 1 kg 100 gram. Samples were taken. FSL Form was filled in. Provisions of Section 55 NDPS Act were also complied with. Accused was arrested. All the three recovery witnesses examined as PW2, PW3 and PW9 have fully supported and corroborated each other and proved that accused was found in possession of 1 kg 100 gram ganja. The case property was deposited with the MHCM by PW8 Ins. Babu Lal, who made the entries at serial no. 3129 in register no. 19, which is proved on record as Ex. PW5/A. The case property was sent to FSL on 16.10.2006 through PW4 vide RC no. 50/21, which is proved on record as Ex. PW5/B. FSL result has also been received and proved on record as Ex. PW1/F and Ex. PW1/G, according to which the sample was found to be of Ganja. Report u/s 57 NDPS Act was also sent to senior officers. All these facts clearly shows that all the mandatory provisions of NDPS Act have been complied with. Recovery of ganja from the possession of accused has also been proved beyoud doubt. I, therefore, hold him guilty for the offence punishable u/s 20 NDPS Act and he is convicted accordingly.
Announced in open Court
on today i.e. 05.07.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE
ROHINI : DELHI
FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI S.C. No. 138/07 FIR No. 603/06 P.S. Janak Puri U/s 20/61/85 NDPS Act State Versus Mohd. Israil S/o Mohd. Muslim ORDER ON SENTENCE : 08.07.2010 Present : Ld. Addl. PP for the State.
Convict in person with counsel.
Arguments heard on the point of sentence. Record perused. Learned counsel for the convict submitted that convict is having no previous criminal record ; he is married having wife and children ; he is very poor ; presently he is having no regular source of income ; he is the sole bread earner of the family ; he had already remained in J.C for about one month during the trial and is facing trial for the last about three years. Learned counsel for the convict prayed that a lenient view may kindly be taken.
Learned Addl. PP for the State submitted that convict is supplier of contraband and he was found in possession of one kilogram and 100 gram FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 ganja. Keeping in view the gravity of offence that it affects the entire nation and future generation, no leniency be shown and severest punishment be awarded to him.
Keeping in view the submissions and the fact that convict was found in possession of ganja and also the fact that he is first offender and having family to support, he is sentenced to one months rigorous imprisonment, along with a fine of Rs. 5,000/ u/s 20 NDPS Act, in default of payment to undergo 15 days R.I. Benefit of Section 428 Cr.P.C is given to him.
Case property be destroyed after the period for filing the appeal is over or no appeal is preferred. Copy of judgment and copy of order on sentence be given to the convict free of cost.
File be consigned to Record Room.
(V.K. BANSAL) ADDL. SESSION JUDGE ROHINI : DELHI : 08.07.2010 FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2 FIR no. 603/07 PS Janak Puri : State vs. Mohd. Israil Page 2/2