Delhi District Court
State vs . (1) Mohd. Munna S/O. Sh. Mainuddin ... on 11 March, 2015
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI
Unique ID No. 02402R0188732012
Sessions Case No. 46A/13
Date of Institution: 26.06.12
Date of transfer to this court: 24.07.13
Date on which reserved for orders: 07.03.15
Date of delivery of order: 11.03.15
State v/s. (1) Mohd. Munna S/o. Sh. Mainuddin Miyan
R/o. Vill. Bada Pareuwa, PS. Raxaul,
Distt. Motihari, Bihar.
FIR No. 104/12
PS. Crime Branch
U/s. 20 NDPS Act.
JUDGMENT:
1. Prosecution case is that an information was received at Narcotic Cell of Crime Branch by ASI Devender Singh on 1604 2012 at about 6:15 AM. The information was that two boys both named Munna residents of Bihar use to bring Charas from Bihar. FIR No. 104/12, PS. Crime Branch Page 1 of 19 St. Vs. Md. Munna Chhota munna also did the tailoring work at Prahlad pur Delhi. The duo were expected to bring heavy quantity of charas between 7:30 8:30 pm near outer gate of Anand Vihar ISBTfor supply to someone. The secret informer was produced before Inspector Narcotic Cell Kuldeep Singh, who also satisfied himself about the information. He then communicated the information to ACP Bir Singh telephonically at his residence, who directed the raid. The information was recorded in writing as DD no 6 at 6:45 AM. A raiding team consisting of ASI Devender,HC Charan Singh and HC Laxman Singh, was constituted, which left the PS vide DD no 7 in Government vehicle no DL 1CM4228 driven by HC Satyavan. The IO took alongwith him field testing kit, electronic weighing machine and IO Bag. On way public persons were asked to join the investigation. Around 7:55am one person was seen coming from Anand Vihar In Gate side, who was wearing white shirt and Light blue jeans and was having red and black colour bags. He was identified by the secret informer as Munna. The person was apprehended when he started to move after waiting for 23 minutes. IO disclosed to him the information that he had and also told him that he had a right to be searched in presence of a FIR No. 104/12, PS. Crime Branch Page 2 of 19 St. Vs. Md. Munna magistrate or a gazetted officer. The accused was offered the search of raiding team members and official vehicle as well. He was given a notice under section 50 NDPS Act. He however refused all the offers, which refusal was recorded on his notice by the IO. He was searched and from his possession 6KG charas was recovered from the bag that he was carrying. Samples were drawn; FSL form was sealed all the pulandas i.e. samples A and B and remainder C as also the FSL form were sealed with the seal of DS.
2. The case property was sent to PS crime branch, where it was sealed by the SHO, who also put his seal on FSL form. The case property was deposited with MHCM. The second IO went to the spot and conducted the arrest proceedings. The sample was sent to FSL and report was obtained. Chargesheet was filed.
3. Accused was charged under section 20 (b)(ii)(C) of the NDPS Act. He pleaded not guilty and claimed trial.
4. To prove its case Prosecution examined 9 witnesses.
5. PW1 HC Rojalia was the duty officer. She proved the FIR No. 104/12, PS. Crime Branch Page 3 of 19 St. Vs. Md. Munna registration of FIR No. 104/12 based on the rukka sent by ASI Devender Singh through HC Charan Singh. The copy of FIR is Ex. PW1/A. He also made an endorsement on the rukka which is ExPW1/B.
6. PW 2 SI Paramjeet Singh deposed that on 16/04/12, around 03.45 pm on receiving of further investigation, he took copy of FIR and original rukka from HCt. Charan Singh and went to the spot by government vehicle driven by HC Satyavan. He reached the spot at about 04.15 pm and met ASI Devender Singh along with accused Mohd Munna identified by him in the court and other staff there. SI Bhagwan Singh handed over the documents prepared by him and custody of the accused to him. He prepared the site plan Ex. PW2/A and recorded the statement of HC Laxman Prasad. He arrested accused Mohd Munna after brief interrogation vide memo Ex. PW2/B conducted his personal search vide memo Ex. PW 2/C and recorded his disclosure Ex. PW 2/D. From the personal search of the accused one carbon copy of the notice u/s 50 NDPS Act, cash Rs. 102/ were recovered. After completing the investigation they all returned to Crime Branch Malviya Nagar, FIR No. 104/12, PS. Crime Branch Page 4 of 19 St. Vs. Md. Munna where he deposited the personal search of the accused with MHCM. He produced accused before Inspector Kuldeep Singh Incharge Narcotic Cell. He had prepared his report under section 57 NDPS Act, which he gave to Inspector Kuldeep Singh. The report is Ex PW2/E. He proved he notice recovered from the personal search of the accused as Ex PW2/F.
7. This witness appeared again in the court on 15/12/2014 to prove some documents prepared by the first IO ASI Devender Singh, who was pleaded to be terminally with cancer and unable to come to the court for this reason. The witness deposed that documents : report u/s 57 NDPS Act regarding seizure on charas; carbon copy of notice; rukka; the notice under section 50 NDPS Act and its reply bore the signature of ASI Devender Singh.
8. PW5 ASI Om Prakash is the reader to ACP N and CP . He deposed that on 16.04.2012 DD No. 6 was received in the office of ACP and N CP from Insp Narcotic cell which was entered in dairy register vide serial no. 867. The DD was put before ACP Beer Singh who endorsed the same. He produced the DD No. 6 FIR No. 104/12, PS. Crime Branch Page 5 of 19 St. Vs. Md. Munna which was received in the office. The document is ExPW5/A. He further deposed that on 17.04.2012 two reports u/s 57 NDPS Act were received in the office of ACP and N CP vide dairy no. 877 and 878. Both were endorsed by ACP Beer Singh. The received copies are EXPW5/B and ExPW5/C . The original diary register containing entry no. 866, 867 & 868 was produced . The copy is ExPW5/D. In his cross examination he stated that he could not tell the time when documents were produced before ACP Beer Singh.
9. PW6: Inspector CR. Meena deposed that on 16/04/12, at about 01.35 pm HCt. Charan Singh came to his office and handed over three pulandas mark A B and C and one FSL form and carbon copy of seizure memo, to him. All of above had one seal each of DS marked on them. He put his seal of CRM on each pulanda and FSL form and wrote FIR No, after inquiring from duty officer on all pulandas and documents. He then MHCM HC Jag Narayan in his office and the case property and documents were handed over to him. HS Jagnarayan made an entry in register no. 19 and he made DD No. 10 regarding aforesaid proceedings. The DD entry is Ex PW6/A. On 20/04/12, MHCM gave sample A along with FSL FIR No. 104/12, PS. Crime Branch Page 6 of 19 St. Vs. Md. Munna form to Ct. Paramjeet for sending to FSL.
10. PW7 HC Paramjeet corroborated the evidence saying that he received sample pullanda mark A and FSL form having seals of DS and CRM on 20.04.2012 and as per the directions of SHO he deposited the same in FSL Rohini . He had handed over the received copy to MHC(M). In his crossexamination the witness stated that he did not hand any proof regarding his visit/travel to Rohini.
11. PW 8 HC Jag Narain was MHC(M) on the relevant date. He deposed that on 16.04.2012 he was posted in PS Crime branch as MHCM. He was called by Inspector C.R. Meena SHO Crime Branch through duty officer with register no. 19 to his office. SHO handed over three parcels duly sealed with the seal of DS and CRM marked A , B and C, form FSL and carbon copy of seizure memo, to him. SHO had put the FIR number on each pullanda and had signed the same. He made entry at Sl. No. 1379. The said entry is ExPW8/A. On the same date SI Paramjit produced personal search articles of accused , which were deposited in malkhana. On FIR No. 104/12, PS. Crime Branch Page 7 of 19 St. Vs. Md. Munna 20/04/2012 on the directions of SHO he handed over parcel mark A duly sealed with seal of DS and CRM to HC Paramjeet Singh vide RC No. 222/21 alongwith FSL form for depositing the same at FSL Rohini. Copy of RC is ExPW7/A and Copy of receipt is ExPW7/B.
12. PW 9 Inspector Kuldeep Singh deposed that on 16/04/12 at about 06.30 am ASI Devender Singh had come to his office along with secret informer and told him that he had received an information about two persons both by the name of Md Munna R/o Bihar and Chhota Munna was working as tailor in Prahaladpur Delhi and who were indulge in supply of Charas bringing the same from Bihar and supplying it in the Delhi. He deposed that he was also informed that these persons were expected to bring Charas between 07. 30 to 08.30 am at Out Gate of Anand Vihar Railway Station and could be apprehended if raided. He deposed that after satisfying himself about the information, he conveyed the same to ACP & CP Sh. Bir Singh on telephone, who directed necessary legal action. The witness further deposed that the information was recorded by ASI FIR No. 104/12, PS. Crime Branch Page 8 of 19 St. Vs. Md. Munna Devender Singh by DD No. 6 ( Ex. PW 5/A) and he forwarded the same to ACP & CP vide his endorsement and signature at point B. Thereafter, ASI Devender Singh along with raiding team and secret informer left the PS. SI Bhagwan Singh took along with him, IO bag, field testing kit and electronic weighing machine.
The witness further deposed that after the registration of FIR further investigation was handed over to SI Paramjeet Singh who came to his office along with accused (correctly identified by the witness in the court) at about 08.45 pm. He made inquires from accused regarding the facts of his arrest and satisfied himself. On 17042012 ASI Devender Singh and SI Paramjeet Singh produced their special reports u/s 57 NDPS Act which he forwarded to ACP N & CP vide endorsement Ex. PW 5/B and C.
13. PW3 HC Laxman Prasad & 4 HC Charan Singh are the witnesses of recovery and were members of the raiding team. PW 3 deposed that on16042012 at about 7:50 am ASI Devender Singh had constituted a raiding party consisting of himself, the witness and HC Charan Singh PW4. He says that the IO had informed him about the secret information received by him FIR No. 104/12, PS. Crime Branch Page 9 of 19 St. Vs. Md. Munna regarding involvement of twp persons named Munna in supply of charas from Bihar to Delhi and also that they were likely to bring charas that day between 7:30 to 8:30 am at the outer gate of Anand Vihar ISBT. They all left in Govt. Vehicle No. DL1CM4228 driven by HC Satyavan and the informer. IO took his IO bag, field testing kit, and electronic weighing machine vide DD No. 7. On the way IO requested four passersby near Laxmi Nagar, 5 persons near Karkari morh and 4 at the spot to join the investigation, however, all of them did not join and left without disclosing their names and addresses. They reached the spot at about 07:25 am. At about 7:55 am (wrongly typed as pm), one person wearing white shirt and blue jeans was seen comig from "in gate" of the bus adda. The person was holding a cloth bag in his hand. The informer pointed out towards the person and left. After waiting for 23 minutes that person started to move and was apprehended. ASI Devender Singh disclosed his identity and identity of the raiding party members. The accused disclosed his name as Mohd. Munna S/o Mainuddin (accused was correctly identified by the witness in the court). The information available to the police was provided to him. PW3&4 say that the accused was apprised of his legal rights and was told FIR No. 104/12, PS. Crime Branch Page 10 of 19 St. Vs. Md. Munna that if he desired he could give his search in presence of Gazetted Officer or Magistrate. He was told the meaning of Gazetted officer and Magistrate. He was also told that he could take the search of raiding team members and government vehicle, if he wanted. A notice u/s. 50 NDPS Act Ex.PW3/A was given to the accused, which bears his signature at point X. The accused denied to avail the opportunity and gave his reply, which was written by the IO on the original notice as per the version of the accused. The refusal is Ex.PW3/B, which bears signature of PW3 at point A and of PW4 at point B as per their respective evidence. Witnesses deposed that formal search of accused was conducted by the IO after taking the bag from him. The bag was found containing black colour substance. The same was tested on field testing kit and was found to be Charas. The contraband was weighed and found to be 6Kg, out of which two samples of 50 gm each were drawn, which were kept in pullandas and were given mark A and B. Form FSL was filled. The remaining heroin was tied in same transparent and black polythene and was given mark C. All the pullandas were sealed with the seal of DS, which seal was also put on FSL form. All pulandas were seized vide memo Ex.PW3/B (should be 3/C as 3/B FIR No. 104/12, PS. Crime Branch Page 11 of 19 St. Vs. Md. Munna was the refusal). The seal after use was given to PW3.
The witnesses deposed that IO prepared the rukka and handed over the same along with 3 parcels, FSL form and copy of seizure memo to PW4, who left the spot at about 12.30 pm in Government Vehicle. He deposed that at about 4:15pm SI Paramjeet had come at the spot after the registration of case. Accused and documents were handed over to him by ASI Devender Singh. SI Paramjeet recorded his (PW3's) statement. Accused was arrested vide memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW2/C. His disclosure is Ex.PW2/D was also recorded. The witness identified the case property mark C as recovered Charas, the pulanda was found having seals of DS & CRM, and was exhibited as Ex.P5. Sample mark B was produced and proved as Sample Charas bearing the same seals and was exhibited as Ex.P3. The parcel mark A bearing seal of FSL was opened and was found containing remnant of sample charas and was exhibited as Ex.P1.
PW4 has further deposed that he took the rukka, case property and documents given to him by the IO to PS crime branch; where he got recorded the FIR and handed over the articles FIR No. 104/12, PS. Crime Branch Page 12 of 19 St. Vs. Md. Munna and documents to SHO crime branch Inspector CR Meena, who in his presence affixed his seal and wrote FIR number on pulandas and FSL form. Both the witnesses denied that no notice under section 50 NDPS Act was given to the accused.
14. SA was recorded wherein the accused denied all the incriminating evidence and state specifically that he did not know anything related to the notice under section 50 NDPS Act and giving of reply to the notice as incorrect.
15. It was argued by Ld counsel for the accused that notice under section 50 NDPS Act is not as per law. Though the notice bears the signature of the accused; the reply there at is not signed by the accused. Ld. Addl PP argued that this appears to be a typographical error. The notice was signed by the accused the reply on it was written as per his instructions, inadvertently his signatures were not obtained by the IO, the same, however, does not invalidate the notice completely.
16. The notice under section 50 NDPS Act is the most FIR No. 104/12, PS. Crime Branch Page 13 of 19 St. Vs. Md. Munna important document in the investigation of the case under the act. It is the second document recorded in writing after the information under section 42 NDPS Act; the procedure for preparation of both these documents has been held by Hon'ble Supreme Court, to be strictly complied with. Section 50 NDPS Act is reproduced hereunder for ready reference:
50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or sections 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
The authority (of the officer) part has not been challenged. Further, the section says that whenever such authorised person is about to search a suspect; before he takes up such search, he shall take such person to nearest magistrate or nearest Gazetted officer , if the person to be searched requires so. To give effect to the mandatory provision: the person, who is to be searched has to be informed that if he requires such provision (of taking him to FIR No. 104/12, PS. Crime Branch Page 14 of 19 St. Vs. Md. Munna nearest magistrate or gazetted officer) can be made.
The Hon'ble courts in a number of judgments have held that the compliance of section 50 NDPS Act is not a formality. It speaks of a legal right of the accused and thus has to be given a strict compliance. The constitution bench of Hon'ble Supreme Court in Karnail Singh Vs State of Haryana (2009) 8 S.C.C.539 held that section 42 & 50 require strict compliance and though section 50 was diluted after the amendment providing for some relaxation; it could not be said that the protection or safeguard given to the suspects have been taken away completely.
17. Ld. Addl PP has argued that the police witnesses have signed the reply of the accused and have also given evidence that the reply was recorded by the IO as per the version of the accused. To give meaning and content to the clear legislative intent underlying the safeguard provided by section 50 of the Act, cogent and reliable evidence and not merely the statement of a Police Officer is required, which can establish that the person to be searched was informed of his right to be searched in the presence of a Gazetted Officer or Magistrate, but he chose to decline this FIR No. 104/12, PS. Crime Branch Page 15 of 19 St. Vs. Md. Munna offer. The onus of showing that the person to be searched declined such option being upon the prosecution. Ld Addl PP says that non obtaining of signature was a professional irregularity and it cannot take away the effect of the notice, which was duly served. The judgments of Supreme Court cited hereinabove do not allow the act to be passed off as an irregularity. So much importance is attached with the notice that even where the proper notices are served, the linguistic deficiency in the notices is considered as sufficient to render the same a nullity. [Reliance placed on State of Delhi Vs. Ram Avtar, 2011 (III) CC Cases (SC) 172; Rakesh @ Shankar Vs. State Crl. Appeal No. 663/2010 dt. 08.01.14 and Praveen Singh @ Kalia Vs. State of NCT of Delhi, 2011 (I) JCC Narcotics 1.) The accused having not signed the reply has larger implications. It can be indicative of that no reply in fact was given by the accused; the reply has not been recorded in presence of the accused; the reply being not as stated by the accused; the accused having denied to sign the same. There is a possibility as argued by the counsel that the signatures were taken on blank papers. Since the accused was remanded to JC on first dated of his production in FIR No. 104/12, PS. Crime Branch Page 16 of 19 St. Vs. Md. Munna the court; a second document having his two signatures could not be prepared. Whatever amongst above be the reason, the absence of the signature on the reply cannot be ignored as a mere irregularity.
The Black's Law dictionary defines a signature as the act of writing one's name upon a deed, note, contract, or other instrument, either to identify or authenticate it, or to give it validity as one's own act. The purpose of signature thus is to authenticate a writing, or provide notice of its source, and to bind the individual signing the writing by the provisions contained in the document. It is the signature or thumb impression of the accused, which gives authenticity to a document, which in the instant case is the reply of the accused, whereby he allegedly gave away, a precious right of getting searched in presence of a Gazetted Officer or Magistrate. The reply is not in the handwriting of the accused as well. It is in handwriting of the IO. No amount of oral evidence can authenticate the reply of the accused as his in absence of his handwriting and signature.
18. In a case of NDPS Act, where serious punishments are FIR No. 104/12, PS. Crime Branch Page 17 of 19 St. Vs. Md. Munna prescribed the investigation cannot be conducted in a casual manner and the deposition of police witnesses as discussed above indicates that a very casual approach was taken in preparation of the most important document: the notice under section 50 NDPS Act. The Hon'ble Supreme Court in Noor Agha Vs State of Punjab & Anr, 2008 (3) JCC (Narcotics) 135 held that in a case arising out of the provisions of NDPS Act the legislature has provided very stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act . There has to be a perfect balance and fine tuning between the interest of society and protection of statutory safeguards available to the accused.
In State of Punjab Vs Baldev Singh (1999) 3SCC977, also the Hon'ble Supreme Court held that it must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguard provided in statute are scrupulously followed.
19. In view of above cited judgments, the requirement of law and the facts of the case the prosecution case fails on the basic ground of lacuna in the notice under section 50 NDPS Act. No FIR No. 104/12, PS. Crime Branch Page 18 of 19 St. Vs. Md. Munna findings are required on other points raised by Ld. Counsel for the accused pointing smaller issues. Accused is acquitted of the charges framed against him. File be consigned to record room.
Announced in the open
court on 11.03.15 (ANURADHA SHUKLA BHARDWAJ)
ASJ02, (EAST) KKD COURTS/DELHI
FIR No. 104/12, PS. Crime Branch Page 19 of 19 St. Vs. Md. Munna