Delhi District Court
State vs Akhil Dass on 7 October, 2009
-::1::- FIR No 01/06
PS: Narcotics Branch
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE: NDPS:
TIS HAZARI COURTS:(WEST) DELHI
FIR no. 01/06
Police station: Narcotics Branch
U/s 21/29 NDPS Act
State V/s Akhil Dass
1. Session Case no. : 30/N/06
2. Name of the accused : (1) Akhil Dass S/o Masih Dass
and parentage R/o A-319, Majalis Park, Adarsh
Nagar, Delhi.
(2)Mahender S/o Sunder Lal
R/o G-1050, Shora Kothi, Subzi
Mandi, Ghanta Ghar, Delhi
(expired) (proceedings abated
against him on 16/12/2008)
3. Date of commission of :
offence 04/01/06
4. Arguments concluded : 24/09/09
on
5. Date of Judgment : 07/10/09
6. Date of final order : 09/10/09
JUDGMENT
1) The case of the prosecution in brief is that on 04/1/2006 at about 12.15 PM SI B.P. Singh received a secret information that Raj Rani, her husband Akhil Dass and Mahender Singh (since expired) are indulged in supply of "Heroin" and the secret informer further informed that on that day between 2.00 PM to -::2::- FIR No 01/06 PS: Narcotics Branch 2.15 PM Akhil Dass and Mahender would go from their residence in order to supply "Smack"; he produced the informer before SHO Inspector Ramesh Kumar who verified the information from him and informed ACP Shri Mehar Singh on telephone in his office who directed to conduct raid; SI B.P. Singh lodged the DD no.28 in this regard and put the same before the SHO; SI B.P.Singh organised a raiding party comprised of himself, HC Bhagwat Dayal, Ct. Ajit Singh, Ct. Yogender and Ct. Yogesh Kumar; at about 12.45 PM raiding party left the Police Station in the government vehicle bearing registration no. DL 1V 3570 driven by Ct. Satbir alongwith informer; raiding party reached at the out gate of the N.S. Mandi, Azadpur at about 1.45 PM via Ring road; SI B.P. Singh asked 3 passers-by and four rickshaw pullers to join the raid but all of them refused; he briefed the members of the raiding party and carried out a Nakabandi at T-point coming from Majlis Park to the service road on the Ring Road within a radius of 20-25 meters; at about 2.10 PM two persons were spotted coming from the side of Majlis Park towards the service road; the informer pointed out them; one of them was carrying a black coloured polythene bag in a folded condition in his left hand who was identified by the informer as Akhil Dass and the other was identified as Mahender; they were apprehended; SI B.P.Singh -::3::- FIR No 01/06 PS: Narcotics Branch disclosed his identity and the identity of the police team to the accused persons and also informed them about the secret information and that their search was to be conducted; SI B.P.Singh informed about their legal rights to get themselves searched in the presence of Gazetted officer/Magistrate or to search the police party which they refused; SI B.P Singh then served a notice u/s 50 NDPS Act upon both the accused persons and the accused Akhil Dass gave his reply in his own handwriting and accused Mahender was illiterate whose refusal was written under his dictation; personal search of accused Akhil Dass was taken out and a polythene bag was taken out from his left hand; on checking, it was found containing a transparent polythene bag whose mouth was tied with the rubber band containing Matiyala coloured powder; the powder was tested with field testing kit which gave positive result for "Heroin" and on weighing came to be 1 kg, out of which 2 samples of 5 grams each were taken out in two separate transparent polythene packs and converted into cloth parcels and given mark-A and B; the remaining "Heroin" was kept in the same manner as it was recovered and converted into a cloth parcel given mark-C; SI B.P.Singh filled up FSL-form, all the things were taken into possession and sealed with the seal of 3A PS NB DELHI; the seal after use was handed over to Ct. Ajit -::4::- FIR No 01/06 PS: Narcotics Branch Singh; thereafter SI B.P Singh conducted the search of accused Mahender but nothing incriminating was recovered from his possession; he prepared the rukka and handed over the same to Ct. Yogender alongwith parcels, form-FSL and copy of the seizure memo with the direction to hand over the rukka to the duty officer for registration of the case FIR and the remaining things to the SHO. Further investigation was given to SI Avinash (2nd IO) who reached at the spot and prepared the site plan at the instance of SI B.P.Singh and the accused persons were produced before him alongwith relevant papers; SI Avinash recorded the statement of the witnesses and formally arrested the accused persons; after completing the investigation, the chargesheet was prepared and submitted to the court.
2) After hearing the Ld Addl. PP for the State as well as Ld defence counsel, charge u/s 21/22/61/85 of the NDPS Act, 1985 was framed against accused Akhil Dass separately and the charge u/s 29/61/85 of the NDPS Act,1985 was framed jointly against both the accused on 10/5/2006 to which they pleaded not guilty and claimed trial.
3) On 16/12/2008 proceedings against accused Mahender -::5::- FIR No 01/06 PS: Narcotics Branch were abated after verification as he had expired on 16/11/2008.
4) In order to prove its case, the prosecution has examined in total 11 witnesses.
5) The brief discussion of these witnesses is as under:-
PW1 HC Mahesh Chand has deposed that on 04/01/2006 he was working as duty officer from 8.00AM to 8.00PM. On that day at about 6.30 PM Ct. Yoginder handed over to him a rukka sent by SI Brij Pal Singh and he registered the case; thereafter on the directions of SHO he handed over the rukka alongwith copy of the FIR to SI Avinash to investigate the case who left the Police Station in Government vehicle no. DL 1 V 3570 gypsy driven by Ct. Satbir and he lodged the DD no. 37 Ex. PW1/A; he has lodged the DD no. 44 Ex.PW1/B regarding closing of FIR; SI Avinash returned from the spot alongwith both the accused and other raiding party members and he handed over the rukka and copy of FIR to him; he has proved the copy of FIR Ex.PW1/C. PW2 HC Omkar Singh has deposed that on 19/1/2006 he was working as MHC(M); on that day at about 9.30AM on the direction of SHO and IO he handed over cloth sample parcel mark-A duly sealed with seal of 3A PS NB DELHI and 1SHO NBR DELHI alongwith FSL-form having the same seal to Ct.Virender Singh vide road certificate no. 149/21 with the direction to deposit the same at -::6::- FIR No 01/06 PS: Narcotics Branch FSL, Rohini; he made the endorsement in malkhana register; after depositing the same Ct. Virender deposited the receipt on the copy of the road certificate. He further deposed that till the case property remained in his possession the same was kept safe and intact and was not tampered with and proved the copy of the malkhana register as Ex. PW2/A and copy of the road certificate with receipt Ex.PW2/B. PW3 HC Jagdish Parshad has deposed that on 4/1/2006 he was working as MHC(M); on that day at about 7.00 PM, SHO Inspector Ramesh Kumar called him alongwith malkhana register no. 19 and handed over to him three parcels mark-A, B and C duly sealed with the seals of 3A PS NB DELHI and 1SHO NBR DELHI alongwith form-FSL having the same seal and he deposited the same vide entry no. 543 in the malkhana and the SHO lodged the DD entry no. 38 at 7.15 PM. He further deposed that on the same day 11.00 PM SI Avinash deposited the personal search of accused Akhil Dass consisting of one carbon copy of notice u/s 50 NDPS Act, one driving licence, one RC of the vehicle no. DL8 SAE 6888, one black coloured purse containing Rs. 100/- and personal search of accused Mahender consisting of one carbon copy of notice u/s 50 NDPS Act, one wrist watch make Sonata with gold chain, one pocket diary and cash of Rs. 70/-. He further deposed that on 19/1/2006 he -::7::- FIR No 01/06 PS: Narcotics Branch was on leave and the sample parcel alongwith FSL-form were sent by HC Omkar Singh and on 13/3/2006 and Ct. Pushpender collected the FSL-result and remnant parcel from FSL, Rohini and handed over the same to him and he made the endorsement and remnant parcels were deposited in the malkhana and the FSL result was handed over to the IO. He has proved the photocopy of the entry made by him in register no.19 as Ex. PW2/A. He further deposed that till the case property remained in his possession the same was kept safe and intact and was not tampered with.
PW4 HC Yashpal has proved the reports u/s 57 NDPS Act Ex. PW4/A and Ex. PW4/B sent by SI B.P. Singh which was received in the DCP office on 05/1/2006 and were produced before the DCP Shri A.S. Cheema and signed by him and he has proved the copy of the diary register as Ex. PW4/C. PW5 Ct. Birender Singh has deposed that on 19/1/2006 on the direction of SHO, MHC(M) HC Omkar Singh handed over to him sample mark-A alongwith FSL-form duly sealed with the direction to deposit the same at FSL, vide RC no. 149/21; he accordingly deposited the same with the FSL, Rohini and received the acknowledgment on the back of the RC and deposited to the MHC (M). He further deposed that till the case property remained in his possession the same was kept safe and intact and was not -::8::- FIR No 01/06 PS: Narcotics Branch tampered with.
PW6 Ct. Ajit Singh is the recovery witness and has deposed that on 04/1/2006 at about 12.40 PM SI B.P. Singh called him and organised a raiding party consisting himself, HC Bhagwat Dayal, Ct. Yogender and Constable Yogesh Kumar; SI B.P.Singh told him that he received an information that one person namely Akhil Dass alongwith one lady Raj Rani were indulged in supply of "Heroin" after procuring the same from Rajasthan and Akhil Dass alongwith his associate Mahender would go out for supply of "Heroin" from their house between 2.00 PM to 2.15 PM and if a raid was conducted, they would be apprehended; at about 12.45 PM raiding party left the Police Station in the government vehicle bearing registration no. DL1V3570 driven by Ct. Satbir alongwith informer; SI B.P. Singh had taken alongwith him the field testing kit, IO bag and an electronic weighing scale; at about 2.00 PM raiding party reached at the out gate of the N.S. Mandi, Azadpur via ISBT; the vehicle was made to park on the service road and driver Ct. Satbir was deployed; SI B.P.Singh asked 3 passers-by and four rickshaw pullers to join the raid but all of them refused and went away without disclosing their names and addresses; SI B.P. Singh briefed the members of the raiding party and carried out a Nakabandi; at about 2.10 PM two persons were spotted coming -::9::- FIR No 01/06 PS: Narcotics Branch from the side of Majlis park towards the service road; the informer pointed out them; one of them was carrying a black coloured polythene bag in a folded condition in his left hand who identified by the informer that he was Akhil Dass and other was Mahender; both the accused were apprehended at about 2.15 PM; SI B.P. Singh disclosed his identity and the identity of the police team to the accused persons and also informed them about the information and that their search was to be conducted; SI B.P. Singh informed about their legal rights to get themselves searched in the presence of Gazetted officer/Magistrate or to search the police party and the accused refused the same; SI B.P Singh served the notice u/s 50 NDPS Act (Ex. PW6/A and Ex. PW6/B) upon both the accused persons and the accused Akhil Dass who gave his refusal in his own handwriting Ex. PW6/C and accused Mahender was illiterate whose refusal was written under his dictation Ex. PW6/D; personal search of accused Akhil Dass was taken out and took polythene bag from his left hand; on checking it was found containing a transparent polythene bag whose mouth was tied with the rubber band containing Matiyala coloured powder; the powder was tested with field testing kit which gave positive result for "Heroin" and weighed which came 1 kg; out of which 2 samples of 5 grams each taken out in two separate transparent polythene packs tied their mouths with -::10::- FIR No 01/06 PS: Narcotics Branch rubber bands and converted into cloth parcels and given mark-A and B; the remaining "Heroin" was kept in the manner in which it was recovered and converted into a cloth parcel and given mark-C; SI B.P. Singh filled up FSL-form, all the things were taken into possession vide memo Ex. PW6/E and affixed his seal of 3A PS NB DELHI on all the parcel alongwith FSL-form; the seal after use was handed over to him; thereafter SI B.P Singh conducted the search of accused Mahender but nothing incriminating was recovered from his possession and non-recovery memo was prepared to this effect Ex. PW6/F; he prepared the rukka and hand over the same to Ct.Yogender alongwith parcels, form-FSL and copy of the seizure memo with the direction to hand over the rukka to the duty officer registration of the case FIR and the remaining thing to the SHO; at about 5.35 PM Ct Yogender left the spot alongwith articles in the abovesaid government vehicle driven by Ct. Satbir; at about 7.35 PM SI Avinash (2nd IO) reached at the spot and prepared the site plan at the instance of SI B. P. Singh and recorded the statement and the accused persons were produced before him alongwith relevant papers; SI Avinash recorded the statement of the witnesses and arrested accused Akhil Dass Vide memo Ex. PW6/G and conducted his personal search vide memo Ex. PW6/H wherein carbon copy of notice u/s 50 NDPS Act NDPS Act, driving licence, registration -::11::- FIR No 01/06 PS: Narcotics Branch certificate, black leather purse containing Rs. 100/- in cash and some papers were recovered; SI Avinesh then arrested accused Mahender vide arrest memo Ex. PW6/J; conducted his personal search vide memo Ex. PW6/K wherein carbon copy of notice u/s 50 NDPS Act, cash of Rs. 70/- pocket diary and wrist watch make Sonata were recovered; SI Avinash interrogated the accused persons and recorded their disclosure statements; at about 10.45 PM they left the spot alongwith accused persons and reached the Police Station at about 11.45 PM; both the accused produced before the SHO and got medically examined and sent to the lockup; supplementary statement was recorded; He has correctly identified the case property and copy of the notice u/s 50 NDPS Act.
PW7 Dr Madhulika Sharma has proved the FSL report Ex. PW7/A and Ex. PW7/X. PW8 Ex. Ct. Yoginder Kumar is another recovery witness who has fully supported the prosecution story and also corroborated version of the material witness on all relevant points.
PW9 Inspector Ramesh Kumar has deposed that on 04/1/2006 he was working as SHO; on that day at about 12.25PM SI B.P. Singh produced before him an informer who gave the information about the contraband being supplied by Raj Rani, her husband Akhil and his friend Mahender resident of Adarsh Nagar -::12::- FIR No 01/06 PS: Narcotics Branch who are engaged in the business of "Smack" and Akhil Dass and Mahender would come from their house with "Smack" between 2.00 PM and 2.15 PM; after verification from the secret informer, he informed ACP Shri Mehar Singh on telephone who directed him to conduct a raid; SI B.P. Singh had lodged DD no. 28 regarding the information received and the same was forwarded by him to the higher authorities and copy of the same was Ex. PW9/A; SI B.P.Singh organised a raiding party and left the Police Station at about 12.45 PM in a government vehicle no. DL1 V 3570. He further deposed that at about 6.37 PM Ct. Yogender came to his office and produced before him three sealed parcels mark-A,B and C, form-FSL and copy of seizure memo having the seal of 3A PS NB DELHI and he has also affixed his own seal of 1SHO NBR DELHI on all the things;
he has scribed the FIR on all these things produced before him; thereafter he called MHC(M) Jagdish Prasad and deposited the case property with him who made the entry in register no. 19 which was signed by him; he has instructed the duty officer to hand over the further investigation to SI Avinash. He further deposed that at about 10.45 PM accused persons were produced before him; his statement was recorded by SI Avinash Singh on 05/1/2006 between 12.20 AM to 12.40 AM; he has also forwarded the report u/s 57 NDPS Act to the higher authorities and proved the carbon copy of the same -::13::- FIR No 01/06 PS: Narcotics Branch Ex.PW9/B and Ex. PW9/C. He further deposed that on 19/1/2006 on his direction MHC (M) handed over sample parcels , FSL-form to Ct.Birender Singh for depositing the same to FSL vide Rc. no. 149/21.
PW10 SI Avinash Singh is the 2nd IO of the case and deposed that on 04/01/2006 further investigation of this case was handed over to him; the duty officer had handed over to him copy of the FIR and the original rukka thereafter he alongwith driver Ct.Satbir Singh went to the spot where SI B.P. Singh ( 1st IO) handed over to him the relevant papers and produced the accused persons before him; he has prepared the site plan Ex. PW10/A at the instance of SI B.P. Singh and recorded his statement.
PW11 SI B.P. Singh is the 1st IO of the case who has fully supported the prosecution story and also corroborated the version of other material recovery witnesses on all relevant points. In addition he has proved the rukka Ex. PW11/A, disclosure statement of accused persons Ex. PW11/B and Ex. PW11/C. He has further deposed that he had again recorded the disclosure statement of accused Akhil Dass who was on Police Custody remand and proved the same as Ex. PW11/D. He has duly identified the case property.
6) Both the accused were examined under section 313CrPC on 16/4/2008 in which they denied the allegations stating that -::14::- FIR No 01/06 PS: Narcotics Branch they have been falsely implicated in this case.
7) I have heard Ld counsel Shri Sunil Mehta for accused Akhil Dass who argued that case of the prosecution was not proved beyond reasonable doubt because of the following reasons:-
A) The prosecution has not examined any independent public witness as the same were not joined during investigation and the testimony of official witnesses is neither reliable nor trustworthy because the same suffers from inherent contradictions and material discrepancies.
B) DD no. 29 Ex PW9/A regarding the secret information is false because the address of the accused persons is not mentioned in it and without knowing the address how the raid was conducted near the house of the accused persons. This fact shows that no secret information was ever received and no such raid was ever conducted and nothing was recovered from the possession of the accused persons on the alleged date, time and place.
C) PW11 SI B.P. Singh Investigating Officer has admittedly not recorded in writing his conversation with the secret informer and the provisions of section 42 of the NDPS Act are not complied with.
D) There are material contradictions in the deposition of witnesses because all the witnesses PW8, -::15::- FIR No 01/06 PS: Narcotics Branch PW11 has stated that rukka was prepared/written by SI B.P. Singh but PW6 has stated that the rukka was scribed by Ct Yogesh. Ct. Yogesh has not been cited or examined as a witness and the chain of the witnesses is not complete as a result the defence of the accused has been prejudiced.
E) The deposition of PW7 Madhulika Sharma has established that the sample and the case property has been tampered with. The FSL report Ex.PW7/A has found the percentage of contraband diacetylmorphine and phenobarbital as 7 % and 3.4% respectively. On the application of the accused the fresh sample mark-C1 was drawn from the case property when produced in the court and the said sample was also chemically examined by PW7 Dr.Madhulika Sharma and the percentage of diacetylmorphine and phenobarbital was found 1% and 0.008% respectively. This difference in the percentage of contraband in the samples drawn at the time of alleged recovery and subsequent sample drawn on the request of the accused by the court shows that the sample drawn allegedly on the spot does not represent and correspond to the case property from which the subsequent sample mark- C1 was drawn. Admittedly, there was no change in the colour and form of the alleged contraband of the sample mark- C1 and the previous sample examined by PW7 and the alleged recovery has therefore become doubtful and benefit of doubt would go to the -::16::- FIR No 01/06 PS: Narcotics Branch accused.
8) Ld counsel has referred and relied upon the following cases in support of his above contention :-
(1) In Gulrej Mian Vs. The State (Government of NCT of Delhi) criminal appeal no. 657/04 judgment dated 4/8/2008 (High court of Delhi) a fresh sample was drawn by the directions of Hon'ble High Court and was sent to FSL and the FSL report submitted to the Hon'ble High Court of Delhi which was perused and it was held as under:-
"Perusal of the report shows the following result of examination/opinion:-
(i) "On chemical, Thin Layer Chromatography & G.C. Examination, Exhibits 'CA' & 'CB' were found to contain Paracetamol, Caffenine, Acetyoclodeine, Monoacetylmorphine & Diacetylmorphine.
(ii) However, on Gas chromatography examination, Exhibits 'CA' & 'CB' were found to contain Diacetylmorphine 0.03% & 0.04% respectively."
As per the opinion of Dr. Madhulika Sharma, Assistant Director (Chemistry), FSL Delhi with the passage of time physical and chemical changes do take place in smack/heroin (Diacetylmorphine) sample as there is change in the colour from brown to dark brown; the powder is changed into lump form and diacetylmorphine converts into monoacetylmorphine , morphine etc codeine also converts into morphine.-::17::- FIR No 01/06
PS: Narcotics Branch While considering the report of the FSL, these changes are also to be kept in mind by the court. The fact remains that the sample of heroin CA & CB weighing 5 gms with polythene, each on examination were found to contain diacetylmorphine 0.03% and 0.04% respectively. It is every small quantity for which the punishment awarded to the appellant is not proper nor in accordance with law.
Under these circumstances, sentence awarded to the appellant is reduced to the undergone period. The order on sentence of the trial court dated 4th September, 2004 stands modified accordingly.
(2) In Ram Narayan Vs. State reported as 2005 (2) JCC (Narcotics) 170, High court of Delhi it was held that "differences in the test result of the samples taken from the very same packet cast doubts on the issue as to whether the case property is the same as what is alleged to have been recovered from the petitioner. This is not a definite finding and that would come at the time of trial. However, on the basis of material brought on record, there is every likelihood that petitioner may not be convicted in this case." The mandatory condition of grant of bail u/s 37 of the NDPS Act was held to have been satisfied and the petitioner was granted bail. (3) In Eze Val Okeke vs. Narcotics Control Bureau reported as 2005 (1) CC cases (HC) 72, High court of Delhi. It was held that "The act lays down stringent -::18::- FIR No 01/06 PS: Narcotics Branch punishments for the offences committed there under and as such casts a heavy duty upon the court to ensure that there remains no possibility of an innocent getting convicted. The officers concerned with the investigation of the offences under the Act must produce best and unimpeachable evidence to satisfy the court that the accused is guilty because no chance can be taken with the liberty of a person. No doubt that drug trafficking is a serious matter but the investigation into such offences also have to be serious and not perfunctory ."
Ld defence counsel therefore vehemently argued that because of above discrepancies and contradictions, prosecution has failed to prove its case against the accused beyond reasonable doubt and accused was entitled to acquittal.
9) Ld Addl. PP for the State on the other hand argued that the IO has made sincere efforts in joining of the public witnesses and the testimony of police officials is natural and straight forward and same is reliable and trustworthy. She further argued that the contradictions are minor in nature and witnesses have sufficiently deposed that the case property was not tampered with so long it remained in their possession and the FSL-report shows that the -::19::- FIR No 01/06 PS: Narcotics Branch samples were received intact and the seal tallied with the specimen seal. Regarding non-examination of Ct. Yogesh who has scribed the rukka Ld Addl. PP for the State submitted that he was not the witness to the recovery of the contraband and was never in possession of recovered contraband and as such his non- examination has not prejudiced the defence of the accused in any manner. Since the said Ct. Yogesh has simply scribed the rukka on the dictation of Investigating Officer, his examination as a witness was not necessary to establish the case against the accused and the same has been fully established by examination of all the recovery witnesses who has witnessed the recovery of the contraband from the accused. Regarding the cases referred by the Ld counsel for the accused Ld Addl. PP for the State submitted that the case of Gulrej Mian (Supra) is supporting the prosecution case because in the said case despite the difference in the percentage of Diacetylmorphine in the subsequent sample, the Hon'ble High Court has not acquitted the accused and the conviction was upheld and the sentence was modified because the case of the accused was not falling in the commercial quantity after the subsequent FSL report and as such the accused was sentenced to imprisonment already undergone.
10) Regarding Ram Narayan's case (supra) Ld Addl. PP for the -::20::- FIR No 01/06 PS: Narcotics Branch State submitted that in the said case there were some difference in colour in the allegedly recovered "Heroin" and what was actually produced in the court as is not the case in hand and in the said matter before the Hon'ble High Court the granting of the bail after satisfying of the mandatory condition u/s 37 NDPS Act was considered and no principle of law was laid down as to what would be the effect of such difference of percentage of Diacetylmorphine in the subsequent sample on the trial of the case.
Ld Addl. PP for the State therefore submitted that the prosecution has established its case against the accused beyond reasonable doubt and accused is liable to be convicted.
11) I have considered the rival submissions made at bar and gone through the record of the case.
12) It is true that the police had prior information against the accused persons. It is not a case where the accused had been apprehended and it had led to a chance recovery of contraband from them. In the case of prior information against the accused, was it not imperative for the police to have joined independent witnesses in the raid supposed to be conducted against the -::21::- FIR No 01/06 PS: Narcotics Branch accused? The answer must be given in the affirmative. Ld Addl. PP for the State however, has drawn my attention to the testimony of three recovery witnesses wherein they have stated that they had tried to join the independent witnesses but all of them had refused. Ld Addl. PP for the State has forcefully contended that the general public is not willing to join the police investigation either because of the inconvenience caused to it on account of the peshi in the Court on various dates or because of the fear of the accused. She has forcefully contended that the statements of official witnesses should not be brushed aside and rather should be relied upon to base conviction against the accused. What then is the effect of the non-joining of the public witnesses in a raid against the accused? Should the case of the prosecution be seen with suspicion and thrown away? The answer is provided by a judgment of our own High Court reported as Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 it has been observed:
"It is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. It is hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a preposition of law the presumption should be -::22::- FIR No 01/06 PS: Narcotics Branch the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
13) Regarding non-joining of the public witness at the time of recovery, in criminal appeal no. 327/2002 Shashi Shekhar @ Neeraj @ Raju Vs. State, decision dt. 23/5/2007 Hon'ble High court of Delhi was pleased to hold that evidence of police witnesses cannot be discarded for the reason that no public witness was joined at the time of recoveries. The evidence of police witnesses could be relied upon if no serious infirmity is pointed out in their evidence on behalf of the accused. Just -::23::- FIR No 01/06 PS: Narcotics Branch because the recovery witnesses are police official, it cannot be said that their evidence is not of an independent character because both are government servants and there is a presumption u/s 114, illustration (e) of the Evidence Act regarding the fact that all official acts by government servants were regularly performed. It was further held if an accused wants to rebut this presumption he can do so by bringing on record relevant material either by producing his own evidence or during the cross-examination of the witnesses from which a doubt may enter the judicial mind regarding the genuineness of the acts which the police witnesses claim to have performed while discharging their official duties during the investigation of a crime. In Praveen Kumar Vs. State of Karnataka reported as (2003) 12 SCC 199, it was held that where the court is satisfied that the evidence of police officials can be independently relied upon then there is no prohibition in law that the same cannot be accepted without any independent corroboration.
14) It is, therefore, clear that even though, police officials are competent witnesses and conviction against the accused can be based on their sole testimony, an onerous duty has been cast on the Court to scrutinize their statements very closely in order to form an opinion whether they are reliable and trust worthy. -::24::- FIR No 01/06
PS: Narcotics Branch
15) Regarding the contention of the Ld Defence Counsel that public person has not been joined either in the raid or during the investigation despite their availability, the Ld Addl. PP for the State has taken me to the evidence of those witnesses who has deposed that public persons were asked to join the investigation. Even PW6 Ct. Ajit Singh has stated that SI B.P. Singh asked three passers-by and four rickshaw pullers to join the raid having informed them about the secret information but all refused and went away without disclosing their names and addresses. Similarly, PW8 Ct Yogender Kumar has also stated about asking of 2-3 passers-by to join the raid by SI B.P. Singh. SI B.P. Singh also deposed similarly about his asking to 2-3 passers-by and four rickshaw pullers to join the raid. Nothing was suggested in the cross-examination of these recovery witness to the effect that the IO has not made sincere efforts to join the public witnesses during the raid and investigation. SI B.P. Singh even in his cross- examination has clarified that the petrol pump was situated on the other side of the road and there were shops at some distance and he had not gone to ask anybody from those places to join the raid. The explanation given by SI B.P. Singh for non-joining of public witnesses is therefore found to be plausible and satisfactory.
16) The possibility and availability of a public witness for -::25::- FIR No 01/06 PS: Narcotics Branch joining investigation is a fanciful myth like meeting of the sky at the horizon. The near you go, the far it becomes and the ultimate meeting point never reaches. The public witness now a days has become a rare commodity. No one is ready to join police investigation either because of the fear of the accused or because of inconvenience to be suffered in attending the courts.
17) I have gone through the statements of the PWs in a careful manner. I find ample corroboration in the testimony of the PWs, especially the recovery witnesses. They have deposed uniformly about the receipt of information against the accused, the organisation of a raiding party and the manner of apprehension of the accused. They have also corroborated each other on the point of recovery of contraband "Heroin" from the accused Akhil Dass. They have successfully withstood the test of lengthy cross examination. Their statements have not been discredited on any material aspect of the case. There is nothing material on record to show that they have deposed falsely with a bias against the accused. And in case the police was adamant to falsely implicate the accused persons, then there was nothing to prevent them from showing the recovery of contraband from co-accused Mahender who was arrested and charge-sheeted only u/s 29 NDPS Act. This shows that the investigation was carried out in a fair and unbiased -::26::- FIR No 01/06 PS: Narcotics Branch manner. The deposition of police officials in this case is found to be coherent and trustworthy.
18) Regarding the contention of non compliance of section 42 of the NDPS Act , I have gone through the evidence of SI B.P.Singh who has stated that at about 12.15 PM he had received a secret information and lodged DD no. 29 Ex. PW9/A in that regard and had put up the same before SHO Inspector Ramesh Kumar. PW9 Inspector Ramesh Kumar in his cross-examination stated that the informer had stayed with him for about 4-5 minutes and he had perused the DD entry lodged by SI B.P. Singh in respect of the information before forwarding it to higher authorities; he had talked to the ACP on telephone in the presence of informer and SI B.P. Singh. It becomes clear from their deposition that the secret information was reduced into writing vide DD no. 29 Ex. PW9/A and the said information was conveyed to the ACP on his telephone. Thus, it is not a case of giving no information to the higher officers as is required by section 42 of NDPS Act. No prejudice is shown to have been caused to the defence of the accused if the information had been conveyed telephonically, because neither the SHO Inspector Ramesh Kumar nor the ACP were member of the raiding party and has not witnessed the recovery from the accused.
-::27::- FIR No 01/06
PS: Narcotics Branch
19) Regarding the contention of DD no. 29 not containing the address of the accused persons, I am of the considered opinion that it is not necessary to record the minute detail of the information and no prejudice has been caused to the defence of the accused for non-mentioning of his address in the DD no. 29 recorded on the basis of secret information received by SI B.P. Singh.
20) Regarding the contention of there being material contradictions in the deposition of material witnesses, I find force in the arguments of Ld Addl. PP for the State because the minor contradictions in the deposition of witnesses is natural. Non- examination of Ct. Yogesh who has scribed the rukka on the dictation of SI B.P. Singh has also not adversely affected the prosecution case because no prejudice has been caused to the defence of the accused because Ct. Yogesh has not witnessed the recovery from him. The presence of Ct. Yogesh has been proved by deposition of PW8 Ct. Yoginder Kumar in his cross- examination wherein he has stated that the informer was sitting in between Ct Yogesh and HC Bhagwat Dayal in the gypsy. PW6 Ct. Ajit Singh in his cross-examination stated that the rukka was scribed by Ct Yogesh who had sat on the seat of the driver while it was being dictated by SI B.P. Singh.
-::28::- FIR No 01/06
PS: Narcotics Branch
21) Regarding the last contention that the deposition of PW7 Madhulika Sharma has shown the difference of percentage of diacetylmorphine in the samples examined by her which was drawn from the same case property from which the earlier sample was drawn and examined by her vide report Ex. PW7/A. I have gone through the evidence of PW7 and also the FSL reports Ex.PW7/A and Ex. PW7/X. As per FSL report Ex. PW7/A on the basis of sample drawn at the time of recovery of the contraband from the accused, the percentage of diacetylmorphine and phenobarbital was 7.0% and 3.4 % respectively in sample parcel mark-A chemically analyzed vide FSL report Ex. PW7/A which was drawn on 4/1/2006. On 12/11/2007 the accused had moved an application for retesting of the purity contents of the contraband for drawing fresh samples from the case property. The said application was considered and disposed of on 5/12/2007 and retesting was allowed because it was contended on behalf of accused that the FSL result Ex. PW7/A has described the colour of the contraband as pinkish brown coloured powdery material whereas according to prosecution case the recovered "Heroin" was brownish in colour. The fresh sample was drawn on 5/12/2007 and was given mark-C1. The mark-C1 was chemically analyzed by PW7 Dr. Madhulika Sharma vide report Ex. PW7/X -::29::- FIR No 01/06 PS: Narcotics Branch dated 30/1/2008. I have compared the reports Ex.PW7/A and Ex.PW7/X and found that the colour of the contraband of sample mark-A and mark- C1 has been found same and similar in both the FSL reports i.e pinkish brown colour powdery material. I have also perused the deposition of the material recovery witnesses and the documents on record where the recovered contraband was described as Matiyala coloured powder. No difference in colour was noted at the time of recording of the evidence as compared to the colour mentioned in the seizure memo because it was the same Matiyala coloured powder as find mentioned in the seizure memo as well as in the deposition of the witnesses. Similarly, the colour of the sample mark-A and mark-C1 has also been found same and no change in the colour has been noted.
22) PW7 Dr. Madhulika Sharma has clarified in her cross- examination that in both the reports it has been mentioned that the sample had not changed its colour from brown to dark brown or the state from powdery to lump. Regarding the possible chemical changes that may occur in such narcotic drug because of lapse of time. PW7 has stated in her cross-examination as under:-
" (....As diacetylmorphine is a synthetic drug, hence its stability is less as compared to morphine, therefore, its starts get converted into mono acetyl morphine and then to morphine). It is not possible to detect the percentage of mono acetyl morphine as it -::30::- FIR No 01/06 PS: Narcotics Branch is metabolite of diacetylmorphine. Mono acetyl morphine is a narcotic drug as it contains phenanthren ring.
Question: Can you determine the percentage of mono acetyl morphine in a sample?
Answer: Pure standards are not available in the international market and therefore, the percentage of mono acetyl morphine in a sample can be determined.
I cannot say if any laboratory in India is equipped to determine such a percentage. I cannot tell the amount of change which can take place whereby diacetylmorphine gets converted into mono acetyl morphine. It is incorrect to suggest that I am aware of the fact that some laboratories can determine the percentage of mono acetyl morphine in a particular substance."
23) Thus from the deposition of PW7 it has been established that the sample mark-A subject matter of FSL report Ex. PW7/A and the sample mark-C1 subject matter of FSL report Ex. PW7/X were drawn from the same homogeneous mixture. The contents of both these samples has been found containing diacetylmorphine and phenobarbital both necessary constituents of contraband "Heroin". However, purity percentage of diacetylmorphine and phenobarbital in sample mark-A as per report Ex PW7/A was 7% and 3.4 % respectively whereas the same was found to be 1% and 0.008% respectively in the sample mark- C1. The main thrust of the arguments of Ld counsel for accused was that this significant difference in the percentage of -::31::- FIR No 01/06 PS: Narcotics Branch diacetylmorphine in sample mark-C1 as compared to sample mark-A has shown that the contraband produced in the court was not the same from which the sample mark-A analyzed vide report Ex PW7/A was drawn. Hence, it was argued that the case of the prosecution has become doubtful and the accused was entitled to acquittal.
24) The contention of the Ld Addl. PP for the State on the other hand was that this difference of purity content in the subsequent sample does not mean to throwing away the case of the prosecution and the accused can be given benefit only to the extent that the quantity of the recovered contraband has to be considered accordingly as per the contents found in the subsequent sample. It is argued that the said benefit was already extended to the accused and he was granted bail after the FSL report regarding subsequent sample mark-C1 because the case of the accused has fallen in the intermediate quantity.
25) Now the question is whether the reduction of purity content in the recovered contraband as per subsequent sample drawn on the request of the accused shall amount to making the prosecution case doubtful or not? Ld defence counsel in that regard has relied upon Ram Narayan's case (Supra) wherein it was held that I find that the differences in the test result of the -::32::- FIR No 01/06 PS: Narcotics Branch sample taken from the very same packet cast doubt on the issue as to whether the case property is the same as what is alleged to have been recovered from the petitioner. This is not a definite finding and that would come at the time of trial.
26) What would be the effect of difference in the test results of the samples on the prosecution case after trial has been decided by the Hon'ble High Court of Delhi in the case of Gulrez Mian (Supra) which has also been referred and relied upon by the counsel for the accused. In the said case the sample was drawn from the case property in the custody of the malkhana by the direction of the Hon'ble High Court of Delhi during the pendency of the appeal and the same was sent to the FSL where percentage of diacetylmorphine in the two samples was found to be only 0.03% and 0.04% respectively. The trial court in the said case had convicted the accused u/s 21 (c) for being in possession of commercial quantity of the contraband and he was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1 lac. The Hon'ble High Court has only modified the sentence awarded to the accused because there being small quantity of the contraband as per the FSL report regarding fresh sample. The judgment of the trial court was however upheld meaning thereby -::33::- FIR No 01/06 PS: Narcotics Branch the difference in the test result of the sample taken from the same packet does not mean the case prosecution was doubtful. The court is therefore required to consider the whole material on record including the evidence produced by the prosecution during trial. On the basis of testimony of PW7 Madhulika Sharma the colour and state of the contraband in both the samples remained same i.e pinkish brown coloured powdery material. As per prosecution case the recovered contraband was in the form of Matiyala coloured powder. The colour of the recovered material produced in the court as identified by prosecution witnesses was also found to be Matiyala coloured powder. Thus there was no change in the colour and state of the recovered contraband so as to create doubt in the prosecution story regarding recovery of alleged contraband from the possession of the accused. As deposed by PW7 Dr Madhulika Sharma the diacetylmorphine is a synthetic drug and its stability is less as it starts getting converting into monoactylmorphine and then to morphine and it was not possible to detect the percentage of monoactylmorphine as it is metabolite of diacetylmorphine. She has further clarified that the percentage of monoactylmorphine in sample cannot be determined because pure standards are not available in the international market. She further stated that she cannot tell the -::34::- FIR No 01/06 PS: Narcotics Branch amount of change which can take place whereby diacetylmorphine gets converted into monoactylmorphine.
27) Therefore, I am of the considered opinion that the difference in the percentage of diacetylmorphine in the subsequent sample does not cast doubt in the recovery of the alleged contraband if the recovery otherwise stands established beyond reasonable doubt. The evidence produced by the prosecution was found to be natural and straight forward and the testimony of official witnesses was found to be reliable and trustworthy because there was nothing to assail their deposition in cross-examination and there was nothing brought on record by the accused that the official witness were inimical towards him and had acted with a bias. The defence raised by accused was found to be an afterthought and was therefore liable to be rejected.
28) No evidence has been brought forth by the prosecution to establish the alleged conspiracy of supplying contraband in Delhi by accused Akhil Dass in collusion with co-accused Mahender (since expired).
29) From the above discussion, I am convinced that on 4/1/2006 the accused was apprehended by the raiding party -::35::- FIR No 01/06 PS: Narcotics Branch headed by SI B.P.Singh and 1 kg of "Heroin" containing 1% diacetylmorphine (10 grams "Heroin") as per FSL report Ex.PW7/X was recovered from his possession. I therefore hold the accused guilty and convict him under section 21 (b) of NDPS Act. ANNOUNCED IN THE OPEN COURT ON 07/10/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE:NDPS (WEST)DELHI -::36::- FIR No 01/06 PS: Narcotics Branch IN THE COURT OF SHRI RAJ KUMAR CHAUHAN ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE: NDPS:
TIS HAZARI COURTS:(WEST) DELHI FIR no. 01/06 Police station: Narcotics Branch U/s 21 NDPS Act State V/s Akhil Dass ORDER ON SENTENCE Present : Ld Substitute Addl. PP for the State .
Convicts is present with Counsel Shri Sunil Mehta. Vide separate judgment, accused has been convicted u/s 21 (b) of NDPS Act,1985.
I have heard the Ld. Defence counsel on the point of sentence who argued that accused/convicts is not previous convict. It is further submitted that he has already suffered more than 2 years and 33 days imprisonment during trial.
It is further submitted that convict is having a family, wife and children who are dependent upon him and earning his livelihood by doing transport business. His wife is suffering from chronic T.B disease and his daughter is of marriageable age Therefore, it is prayed that he be sentenced to imprisonment already suffered by him during trial.
Ld Addl. PP for the state on the other hand submitted that case of the accused/convict falls in intermediate quantity and maximum punishment be awarded to him.
-::37::- FIR No 01/06
PS: Narcotics Branch I have considered the rival submissions made at bar. Considering the clear antecedents of the accused and the fact that he has not been previously convicted in any other offence, I am of the considered opinion that ends of justice will be met if he is sentenced to imprisonment already suffered by him during trial and a fine of Rs. 10,000/- for the offence u/s 21(b) NDPS Act having been found in possession of 10gm of "Heroin". In case of default of payment of fine, convict shall undergo simple imprisonment (SI) for period of 2 months.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 09/10/2009 (RAJ KUMAR CHAUHAN) SPECIALJUDGE:NDPS (WEST): DELHI