Delhi District Court
State vs Mehboob Mansuri Etc. on 4 December, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDL. SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
FIR no.03/13
U/s 21/29 NDPS Act
PS Crime Branch
SC No. 01/2/13
State
Vs.
1. Mahboob Mansuri s/o Sh Sattar Mansuri
2. Ghanshyam Kumawat s/o Sh. Daya Ramji Kumawat
.......... Accused
Challan filed on : 06.03.2013
Reserved for Order on: 26.11.2014
Date of decision: 04.12.2014
JUDGMENT
The facts in brief of prosecution case are that on 04.01.2013 at about 7.30 a.m, a secret informer came to SI Sunil Jain and informed that the accused would come in front of Bikanerwala Mithai Shop, Loha Mandi Road, Naraina to supply heroin to someone between 9.30 a.m to 10 a.m after procuring it from Nahru and if raid is conducted they can be State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 1 of 37 apprehended. The secret informer was produced before Inspector Narcotic Cell who after enquiry gave information to ACP Sh Bir Singh. Thereafter DD no.5 was lodged and SI Sunil Jain constituted a raiding party consisting of HC Mukesh, HC Om Prakash and HC Rajesh Kumar and they all reached at the spot in vehicle no. DL 1CM 4228 after lodging DD no.6. IO asked some public witnesses, on the way to join the raiding party but they refused. The raiding party members took their positions at the spot.
2. It is further the case of the prosecution that at about 9.55 a.m, both the accused were seen coming from the side of Naraina flyover. They were identified by the secret informer. After waiting for 34 minutes at the spot, they started going back and at about 10 a.m both the accused were apprehended. They were disclosed about the raiding team and secret information. Both the accused were apprised about their legal rights that their search can be taken in the presence of Gazetted Officer of Magistrate. But they refused to avail the same.
3. It is further the case of the prosecution that notice u/s 50 NDPS Act was served upon both the accused. Thereafter State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 2 of 37 the search of accused persons were conducted and 1 kg heroin was recovered from accused Mehboob Mansuri and 500 grams from accused Ghansham Kumawat. Separate samples of 5 grams each were drawn from the said substances. The samples and case property were converted into pullandas. Form FSL was filled.
4. It is further the case of the prosecution that thereafter IO prepared rukka and got the case registered. The case property was also sent to SHO who deposited the same in malkhana after affixing his seal and FIR number. The accused persons were arrested and their personal search was conducted. The disclosure statements of each accused was also recorded. Reports u/s 57 NDPS Act were prepared the sent to ACP.The case property (samples) were sent to FSL for chemical examination. After completion of investigation, challan was filed.
5. After supplying the copies of the challan and accompanying documents to the accused, arguments on charge were heard and upon finding prima facie case against the accused, the charge against them was framed u/s 21 NDPS Act State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 3 of 37 r/w sec.29 NDPS Act on 27.04.2013 to which the accused persons pleaded not guilty and claimed trial.
6. The prosecution in support of its case, in all has examined as many as 11 witnesses. PW3 SI Sunil Jain is the first Investigating Officer and he has deposed that on 04.01.2013 at about 7.30 a.m., a secret informer came to the office and informed him that two persons namely Ghanshyam and Mahboob, both R/o Mandsaur, M.P., who are involved in supply of heroin in the areas of Delhi after procuring it from one Nahru of Mandsaur, M.P and that they would come in front of Bikanervala Mithai Shop, Loha Mandi Road, Naraina, Delhi, to supply heroin to someone between 9.30 a.m to 10 a.m. and if raid is conducted they could be apprehended. He produced the secret informer before Inspector Narcotics Cell Sh. Kuldeep Singh who also made enquiries from the secret informer and further informed ACP, Narcotics Cell, Sh. Bir Singh telephonically, who directed to conduct a raid. He recorded DD no.5 and the true copies of the same were produced before Inspector for forwarding to senior officers, the carbon copy of the same is now Ex.PW3/A. He constituted a raiding party consisting of himself, H.Ct. Mukesh, H.Ct. Om State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 4 of 37 Prakash and H.Ct. Rajesh Kumar and then along with secret informer left the office in govt. vehicle No. DL 1C M 4228 vide DD No. 6 Ex.PW3/B. On the way, he requested 4 public persons near gurudwara Bangla Sahib, 5 public persons at Inderpuri bus stop and 4 public persons at the spot to join the raiding team but none of them agreed to join and left the spot after giving reasonable excuses and without disclosing their names and addresses. He has further deposed that he briefed the members of raiding party and they took position on the footpath & started waiting for the accused persons. At about 9.55 a.m, two persons were seen coming from the side of Naraina flyover. The secret informer identified them as Mahboob and Ghanshyam. They came near him and stopped on footpath and started waiting for someone. After waiting for about 34 minutes, they again started going back. At that time, at about 10 a.m, at the instance of secret informer, he with the help of raiding team members apprehended them. They were given the identities of raiding team. On enquiry there names revealed as Mahboob Mansuri S/o Sattar Mansuri and Ghanshyam Kumawat S/o Sh. Dayaramji Kumawat, who are present in the Court. They were told about the secret information and also told them about their legal right regarding State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 5 of 37 search and that it is their legal right, if they wish their search can be conducted in the presence of a gazetted officer or a Magistrate or they can be called on the spot. They were also told the meaning of gazetted officer and Magistrate. He prepared two separate notices u/s 50 NDPS Act and carbon copies of the same were served upon them. The original notices are Ex.PW3/C and Ex.PW3/D. He has deposed that Mehboob Mansuri told that he is illiterate, so he was read over the contents of the notice. After knowing their legal rights, they refused to avail them. The reply of accused Mahboob Mansoor was written by him at his dictation on his original notice, same is now Ex.PW3/E. Accused Ghanshyam Kumawat wrote his reply in his own handwriting on his original notice, the same is Ex.PW3/F. He requested 810 public persons gathered at the spot to join the police proceedings, but none of them agreed to join and left the spot after giving reasonable excuses and without disclosing their names and addresses. He took search of accused Mahboob Mansuri and I took possession of blue colour bag from accused Mahboob Mansuri and checked it. On checking, one transparent polythene tied with rubber band and containing soily colour powder in it was recovered from the bag which was kept under one brown colour 'garam chaddar'. State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 6 of 37 he opened the mouth of transparent polythene and checked the recovered soily colour powder with the help of field testing kit and it was found positive for heroin. On weighing, it came to be 1 kg. Two samples of 5 gms each were taken out from the recovered heroin and were put in two separate small transparent polythenes, tied with rubber bands and converted into cloth pullandas Mark A and B. The remaining 990 gm heroin was also converted into a cloth pullanda which was given Mark C. He filled in form FSL regrading recovery of heroin. He sealed all the three cloth pullandas Mark A, B and C with his seal '3B PS NB DELHI' . The same seal was also affixed on the form FSL. The seal after use was handed over to H.Ct. Mukesh. The pullandas were seized vide memo Ex.PW 3/G. He has further deposed that he took search of accused Ghanshyam Kumawat and from his search, one transparent polythene tied with rubber band and containing soily colour powder in it, was recovered from the left pocket of the jacket he was wearing. He checked the recovered soily colour powder with the help of field testing kit and found positive for heroin. The weight of recovered heroin along with transparent came to be 500 gms. Two samples of 5 gms each were taken out from the recovered heroin and were put in two separate small State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 7 of 37 transparent polythenes, tied with rubber bands and converted into cloth pulandas and given Mark D and E. The remaining 490 gm heroin in transparent polythene was also converted into a cloth pulanda and was given Mark F. He filled in form FSL. He took back his seal '3B PS NB DELHI' from H.Ct. Mukesh and he sealed all the three cloth pulandas Mark D, E and F his seal '3B PS NB DELHI' and the same seal was also affixed on the form FSL as sample seal. The seal after use was again handed over to H.Ct. Mukesh. The said pullandas were taken into possession vide memo Ex.PW3/H. He has further deposed that he prepared rukka now Ex.PW3/J and handed over the same to H.Ct. Om Prakash for registration of the case FIR. He also handed over all six sealed cloth pulandas Mark A, B, C, D, E and F along with two form FSLs and two carbon copy of seizure memos to H.Ct. Om Prakash with the direction to hand over the case property to SHO. He has further deposed that at about 6 p.m, ASI Mahender Singh came to the spot in the govt. vehicle along with driver H.Ct. Jagdish Ram for further investigation and he handed over the relevant documents and the custody of accused persons to him. ASI Mahender Singh prepared site plan Ex.PW3/K at his instance. The accused persons were interrogated and accused Mehboob State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 8 of 37 Mansuri was arrested vide memo Ex.PW3/L and his personal search was conducted vide memo Ex.PW3/M and from the personal search of accused, notice u/s 50 NDPS Act and cash of Rs.250/ was recovered. The disclosure statement of accused was recorded which is Ex.PW3/N. He has further deposed that accused Ghanshyam Kumawat was arrested vide memo Ex.PW3/P and his personal search was conducted vide memo Ex.PW3/Q and in personal search one carbon copy of notice u/s 50 NDPS Act and cash of Rs.700/ were recovered from his possession. His disclosure statement vEx.PW3/R was recorded. Thereafter they along with accused persons left the spot and reached at P.S. Crime Branch, Malviya Nagar. ASI Mahender Singh deposited the personal search articles of accused persons in malkhana. He also recorded the statements of SHO and MHC(M). Thereafter they left the police station and reached at office of Narcotics Cell, Shakarpur. ASI Mahender Singh produced the accused persons before Inspector Kuldeep Singh. He has further deposed that he prepared report u/s 57 NDPS Act. regarding recovery and seizure of contraband from both the accused persons and the same were submitted to Inspector Narcotics Cell for forwarding to ACP, Narcotics Cell, the copy of the same is State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 9 of 37 Ex.PW3/S. On 08.01.2013, the sample pulandas Mark A and D were deposited at FSL for chemical examination through H.Ct. Bharat Singh. He identified the case property. Mark A Ex..P1, Mark B Ex.P2., Mark C Ex.P3, Mark D Ex.P4, mark E Ex.P5, Mark F Ex.P6, notice u/s 50 NDPS Act Ex.P7 &P8. In cross examination he has stated that his duty hours are 24 hours. He was on duty since 03.01.2013. When he received secret information, other staff of Narcotics Cell were present in their respective rooms. After receiving the secret information, the same was reduced into writing and got registered in DD registere at sr.no.5. The copy of the same was sent to sr.police officers. They reached at the spot at about 9.15 a.m. He denied the suggestion that both the accused were lifted by him from Khanna Market situated behind Tis Hazari Courts near travel agency office in the presence of many public persons. When he asked four persons near Gurudwara Bangla Sahib, they did not disclose their names and addresses. He did not serve any notice to any of the four public persons on their refusal. His IO bag is made of rexin of brown colour. The weighing machine capacity was of 5 kgs. All the members of raiding party were in civil clothes. He admitted that the Bikanerwala shop is situated in industrial area and many persons were coming and going from State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 10 of 37 there at that time. All the members of the raiding party were visible to each other. Two persons were seen by the raiding party when they were coming from the ring road Naraina side. When he disclosed his identity, he had shown his identity card to both the accused persons. He cannot say who was apprehended first. While both the accused were apprehended from the spot, the public persons were coming and going from there. Formal search of both the accused were taken by him. Before taking search of both the accused, he also offered himself to them to take his search. Before taking search, he tried to understand both the accused what is the meaning of Magistrate or Gazetted Officer in vernacular. He asked both the accused if they want to go to any Magistrate or Gazetted Officer, but they refused. When he was taking the search of accused Ghansham Kumawat, even at that time public persons were going and coming from there. He prepared both the notices u/s 50 NDPS Act at the spot with the help of bonut of the car in standing position. Before serving notices to both the accused, the same were explained to them in their vernacular. He took half an hour in writing and serving the notices. The recovery effected from the accused Ghamsham Kumawat, he prepared its three sealed parcels of the same and sealed with State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 11 of 37 the seal of 3BPS NB DELHI. The bag which was recovered from accused Mehboob Mansuri was one feet in width and quarter to one feet in length. The bag recovered from Mehboob was checked by him. It is correct that one Kg heroin was recovered from accused Mehboob Mansuri. After recovery the same was sealed by him in the aforesaid seal nomenclature.
7. PW7 ASI Mahender Singh has deposed that on 04.01.2013 he was handed over the copy of FIR and asal tehrir by HC Jagdish and he reached at the spot vide DD no.22 Ex.PW7/A where SI Sunil alongwith other police staff and both the accused met him. He was handed over the accused persons alongwith documents. He prepared the site plan which is Ex.PW3/K. He has further deposed that the accused Mahboob Mansuri was arrested vied memo Ex.PW3/L and accused Ghanshyam Kumawat vide memo Ex.PW3/P and their personal search was conducted vide memo Ex.PW3/M&Q respectively. The disclosure statements of both the accused are Ex.PW3/R and N. He deposited the personal search articles of accused persons in Malkhana with HC Jag Narain. He recorded the statements of witnesses. He produced accused before Insp.Kuldeep. He prepared special report u/s 57 NDPS State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 12 of 37 Act which is Ex.PW7/C and sent the same to SHO who forwarded to ACP Nacotics. In cross examination he has stated that he started from Narcotic Cell at 5 p.m. No other police staff was present at the spot except the raiding party. He denied the suggestion that SI Sunil Jain did not hand over him any seizure memo or copy of Notice u/s 50 NDPS Act. He denied the suggestion that accused persons were not arrested as alleged or that no disclosure of the accused persons were recorded.
8. Mutatis mutandis PW4 HC Mukesh, PW5 HC Om Prakash have deposed to the same effect on all the material facts as per version of PW3 IO SI Sunil Jain, therefore, it will be a futile exercise to discuss their testimony here for the reason of brevity. PW13 has additionally deposed that he took rukka to PS and handed over to Duty Officer and pullandas to SHO.
9. PW1 HC Jaswant has deposed that he received rukka Ex.PW1/A on which he written DD no.16 Ex.PW1/B and he made endorsement Ex.PW1/C. He recorded FIR no.3/13 copy of which is Ex.PW1/D. State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 13 of 37
10. PW2 HC Bharat Singh has deposed that on 28.01.2013 he obtained two sealed pullandas mark A and D from malkhana and took the same vide RC no.12/21 to FSL and deposited there. The receipt issued by FSL is Ex.PW2/A.
11. PW6 Insp.P.S.Rana has deposed that on 4.1.2013 HC Om Prakash handed over six sealed pullanda sealed with the seal of 2BPSNB DELHI alongwith two FSL forms and seizure memos to him. He called the duty officer and mentioned FIR number on them. He also put his seal of PSR on the pullandas. Then he called MHCM with register no.19 and deposited the parcels with him. He made entry no.15 in this respect which is Ex.PW6/A.
12. PW8 Kavita Goyal has deposed that on 08.01.2013, two samples were received in FSL which were marked to her. She did the chemical examination and after examination she prepared report which is Ex.PW8/A.
13. PW9 ASI Om Prakash has deposed that on 04.01.2013 a copy of DD o.5 was submitted by SI Sunil Jain State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 14 of 37 which is Ex.PW9/A and copy is already Ex.PW3/A. The said DD was forwarded to ACP and he made entry at sr.no.34 Ex.PW9/A. He has further deposed that on 5.1.2013 special report u/s 57 was received which was entered at sr.no.47 Ex.PW9B. The report is Ex.PW3/S. He further deposed regarding another report u/s 57 NDPS Act Ex.PW7/C against which he made entry at sr.no.48, the copy of entry is Ex.PW9/C.
14. PW10 Insp.Kuldeep Singh has deposed that SI Sunil Jain produced a secret ifnormer before him and after satisfied he informed ACP who directed to conduct raid. The information was recorded in DD no.5 by SI Sunil Jain which he forwarded to ACP and the same is Ex.PW3/A. He further deposed about conducting the raid by SI Sunil Jain. He has further deposed that on the same day at about 12 midnight, ASI Mahender Singh came to his office and produced Mehboob Mansuri and Ghanshyam before him. He made enquiries from them and was satisfied about their arrest. He further deposed that SI Sunil Jain presented special report u/s 57 NDPS Act regarding seizure and ASI Mahender also present the same. He forwarded the same to ACP, the same are already State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 15 of 37 Ex.PW3/S and Ex.PW7/C.
15. PW11 HC Jagnarain is the MHCM who has deposed that he was called by Inspector PS Rana with register no.19. SHO deposited six sealed parcles sealed with the seal of 3PS ND Delhi and PSR alongwith two FSL forms. He made entry at sr.no. 1552 copy of which is Ex.PW11/A. Personal search of accused were deposited by ASI Mahender on the same day including carbon copies of notices u/s 50 NDPS Act. He made entry in register no.19 Ex.PW11/B. He has further deposed that on 8.1.2013 he sent the pullanda mark A and D with two FSL forms to FSL through HC Bharat Singh vide RC no.12/21 Ex.PW11/A and after return, he deposited the acknowledgment Ex.PW11/D with him.
16. The incriminating evidence against the accused persons were put to them in their statements of accused recorded u/s 313 Cr.PC wherein both the accused have taken similar pleas that no notice was served to them. Police took their signatures on blank papers. They were not apprised about their legal rights . They are innocent. They have been falsely implicated in this case by the police. The accused persons did State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 16 of 37 not opt to lead the defence evidence. Thereafter the case was fixed for final arguments.
17. I have heard the final arguments from the Ld. Counsel for the accused as well as Ld. Addl.PP for the State. Ld. Addl.PP for the State has drawn the attention of the court on the statements of witnesses and their cross examinations and stated that the prosecution has proved its case beyond reasonable doubts. It is submitted that all the relevant provisions have been complied with by the prosecution. Ld. Addl.PP has also drawn the attention of the court on the cross examination of witnesses and stated that the testimonies of each witness could not be shattered in cross examination. So, the accused may kindly be convicted.
18. Ld. Counsel for the accused persons has also drawn the attention of the court on the testimonies of witnesses and pointed out some contradictions. He has submitted that there is no public witness associated by the police at the time of seizure of alleged heroin. Ld. Counsel has mainly argued on sec.50 NDPS Act and stated that notice has not been explained to the accused persons and that it was prepared in the PS. Ld. State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 17 of 37 Counsel has relied upon case law NCB Vs. Sukh Dev Raj Sodhi 2012 AD (CRI) (SC) 215, Suresh & Ors. Vs. State of Madhya Pradesh 2013(1) JCC (Narcotics) 0, 2013(1) JCC (Narcotics) 18 Soma Vs. State, 2014 (1) JCC (Narcotic) 13 Rakesh @ Shanker Vs. State and 2013(1) JCC (Narcotics) 32. Ld.counsel has submitted that both the accused persons were lifted by the police from Khanna Market, Tis Hazari and falsely implicated in this case. Ld. Counsel has submitted that the accused may kindly be acquitted in this case as the case of the prosecution is doubtful.
19. Dealing with the first contention of the Ld. Counsel regarding contradictions in the statements of witnesses, In case law State of Rajasthan Vs. Kalki, AIR 1981 SC 1390 their Lordships have observed that in the deposition of witnesses there are always normal discrepancies, however honest and truthful they may be. It was further observed that these discrepancies are due to normal errors of observations, normal errors of memory, due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence and the like. It was also observed that material discrepancies are those which are not normal and are not State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 18 of 37 expected of a normal person. The infirmities pointed out, in my considered opinion, keeping in view the observations made by their Lordships of Supreme Court, it cannot be said to be material or significant which go to the root of matter, particularly, when basic facts have been proved from the documents proved on record.
20. Another contention of the Ld. Counsel is that no public witness was associated by the police at the time of seizure of heroin. The present case hings solely on the testimony of official witnesses. The court has to presume that official acts are performed in due course of law. It will not be correct approach to suspect the integrity of police officials. Their testimonies has to be appreciated like any other witness. However, it is rule of caution that Court should scrutinize the testimony of police officials with utmost care and caution to assure itself of its credibility. The lack of cautious approach is likely to cause miscarriage of justice. In case Law Munshi & Ors Vs. State 20(1981) DLT(SN) 26 it has been observed that public generally hesitate to associate with police therefore the police has to take help of person known to them or the complainant. In case Natho Singh Vs. State, AIR 1973 SC State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 19 of 37 2763 it has been held that evidence of police officials cannot be discredited in the absence of the hostility to the accused. In case State Vs. M.M.Methew, AIR 1978 SC (1571) it was held that evidence of police officials cannot be branded as highly interested only on the ground that they are interested in the success of their case. In Appa Bhai Vs. State of Gujarat AIR 1988 SC 696 it has been held that civilized people are generally insensitive when a crime is committed in their presence. They keep themselves away from the court unless it is inevitable and they try to avoid to involve themselves. In 'Ajmer Singh vs. State of Haryana', 2010 (2) SCR 785, the Supreme Court held that it is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witness is not absolute. If the police officer is unable to join any public witness after genuine efforts, the recovery made by the police officer would not be vitiated. The Hon'ble Supreme Court held that in such circumstances, the Court will have to appreciate the relevant evidence to determine whether the evidence of a police officer is believable so as to place implicit reliance thereon. In the present case, the raid was conducted at about 10.00 a.m. PW3 SI Sunil, IO of the case, has stated that on the way, he State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 20 of 37 requested 4 public persons near gurudwara Bangla Sahib, 5 persons at Inderpuri bus stop and 4 public persons at the spot to join the raiding team but none of them agreed to join and left the spot after giving reasonable excuses and without disclosing their names and addresses. He has further deposed that he requested 810 public persons gathered at the spot to join the police proceedings, but none of them agreed to join and left the spot after giving reasonable excuses and without disclosing their names and addresses. Similar is the version of PW4 HC Mukesh and PW5 HC Om Prakash. I have perused the cross examination of each witnesses but no question/suggestion has been put by the Ld. Defence counsel that the public witnesses were never requested by the IO to join the investigation at any stage. PW3 has stated in cross examination that when he asked four persons near Gurudwara Bangla Sahib they did not disclose their names and addresses and left the spot showing their inability. He did not serve any notice to the people who refused to join the raiding party. It is corret that the said area is an industrial area and many public persons were coming and going from there at that time. While both the accused were apprehended from the spot, the public persons were coming and going from there. He tried his level best but none of them State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 21 of 37 ready. In the entire proceedings, public persons were going and coming from there. PW4 has stated that in his presence, IO asked some public persons to join the raiding party. No notice was served by the IO to the public persons who refused to join the raiding team. When they took position, public persons were coming and going. PW5 HC Om Prakash has deposed that it is correct that there are residential houses IO did not serve any notice to the public witnesses. Admittedly, PW7 ASI Mahender Singh has come to the spot after registration of FIR alongwith and he arrested the accused. The FIR Ex.PW1/D indicate that it was recorded at about 2.30 p.m. The arrest memo of accused indicate that the same were prepared at 7.45 p.m and 8.30 p.m respectively. In the instant case, there are no cogent and valid reasons to discard/suspect the testimony of the police officials who had no prior acquaintance with the accused persons and did not nurture any grievance against them. Accused had no familiarity with any of the member of the raiding team. Both the accused are residents of Mandsor, Madhya Pradesh. They are not the permanent or temporary residents of Delhi. The accused persons did not give reasonable and plausible explanation about their presence on in Delhi on that day at the spot. This fact remained unexplained by the accused in their State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 22 of 37 statements recorded u/s 313 Cr.PC. In cross examination, plea has been taken by the defence that both the accused were lifted by the police from Khanna Market, Tis Hazari, but in statement recorded u/s 313 accused persons have not taken this plea and simply stated that they have been falsely arrested in this case. Both the accused have failed to lead defence to show that they were lifted from Khanna Market, Tis Hazari and that they were not available at the spot. In the absence of prior enmity or animosity, members of raiding team unaware about the accused persons antecedents, were not expected to falsely rope them in this case. In view of the above authorities, I am of the view that keeping in view the general disinclination on the part of the people at large to join the police investigation, it cannot be said that there was any avoidance or evasion on the part of Investigating Officers in joining independent witnesses. No ulterior motive was assigned to the police officials for falsely implicating the accused persons. I am, therefore of the view that nonjoining of the independent public witnesses in the factual matrix of the case was beyond the control of the police and it is not a circumstance to raise suspicion about the motives of the police officials. State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 23 of 37
21. Another contention of the Ld. Counsel is that IO of this case has not explained the notice u/s 50 NDPS Act to the accused and that it was prepared in the PS. He has drawn the attention on case law 2013 (1) JCC (Narcotics) 0, wherein it is stated that 'sec.50right to inform - non compliance of - ambit and scope of - A reading of the panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search Held :merely asking them as to whether they would offer their personal search to him, i.e. the police officer or to gazetted officer may not satisfy the protection afforded under sec.50 of the Act. Sec.50(1) makes it imperative for the empowered officer to inform the person concerned about the existence of his right, if he so requires, he shall be searched before a gazetted officer or magistrate - Failure to do so vitiate the conviction and sentence of an accused'.
22. In case law 2013(1) JCC (Narcotics) 32 it is stated that 'Sec.40 - None compliance of - Recovery is not from the personal search but from the baggage - There was likelihood of the IO having prior information - thus compliance of sec.50 State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 24 of 37 NDPS Act was held to he mandatory - There was material non compliance as in the purported notice time, date, name, residence etc of the officer giving notice had not been disclosed - Accused was also not informed of the legal right'.
23. In case law 2014(1) JCC (Narcotic) 13 it is stated in head note that 'from a perusal of the notice appellant was not informed that he had a legal right to the effect that the bag being carried by him could be searched in the presence of a Magistrate or a gazetted officer - He was only informed - This intimation would not amount to conveying to the appellant that he had a legal right to be search in the presence of a Magistrate or a Gazetted Officer...'.
24. In case law 2013 (1) JCC (Narcotics) 18 it is stated that appellant was found in possession of 20 grams of smack - search - notice u/s 50 of the Act - Mandate of sec.50 - Appellant is admittedly one illiterate lady - She was not in a position to sign the notice and she had only thumb marked The mandate of the right of the accused to have her personal search conducted either by a gazetted officer or a magistrate has not been explained to her - What has been informed to the State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 25 of 37 accused is an option to have her search conducted either in the presence of a Gazetted Officer or a Magistrate - The word duly used in sec. 50 of the Act connotes exact and definite compliance - It was obligation upon the searching offier to inform the appellant about this legal right - Such an information should be unambiguous and definite informing the suspect of her statutory safeguards - Not complying with the mandate and requirements of sec.50 and especially so in a case when the appellant is an illiterate lady which fact had been confirmed that she had only thumb marked on the notice and the investigating agency having not explained this sacrosanct legal right to her, the conviction cannot be maintained'.
25. In the present case, PW3 SI Sunil Jain has served the notice u/s 50 NDPS Act to both the accused. He has stated that he told the accused about the secret information and also told them about their legal rights regarding search that it is their legal right, if they wish their search can be conducted in the presence of a Gazetted Officer or a Magistrate or they can be called at the spot. It is also their legal right that before their search they can take the search of the raiding team members State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 26 of 37 and the government vehicle. He prepared two separate notices u/s 50 DPS Act and carbon copies of the same were served upon them. The notices are Ex.PW3/C and Ex.PW3/D. He has further stated that accused Mahboob Mansuri told that he is illieterate, so he read over the contents of the notice to him. After knowing their legal rights, they refused to avail them. The reply of accused Mahboob was written by him on his dictation on his original notice, same is now Ex.PW3/E. He read over the reply and finding it correct, accused Mehboob Mansuri signed it at point B. He has further stated that accused Ghansham Kumawat wrote his reply on his own handwriting on his original notice, the same is now Ex.PW3/F. Similar are the statements of PW4 HC Mukesh and PW5 HC Om Prakash regarding service of notice upon accused persons by PW3 SI Sunil Jain. I have also perused the cross examination of these witnesses. PW5 has stated that the notices were prepared on the bonut of govt.vehicle. Both the accused were asked by the IO to get their search in the presence of Magistrate or Gazetted Officer but both have refused. PW3 SI Sunil Jain has stated in cross examination that before taking search, he tried to make both the accused understand about the meaning of Magistrate or Gazetted Officer in vernacular. Before taking the search of State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 27 of 37 both the accused by him, he also offered himself to them to take his search but both refused. He asked both the accused if they want to go to any Magistrate or Gazetted Officer, but they refused. Before serving the notices to both the accused, the same were explained to them in their vernacular by him. He took half an hour in writing and serving the notices.
26. I have perused the notices Ex.PW3/C and Ex.PW3/D. These notices were served upon accused Mahboob Mansuri and Ghanshyam Kumawat respectively. Both the notices finds mention that the accused persons were informed that it is their right that they can get their search conducted in the presence of Gazetted Officer of Magistrate and such arrangement can also be made at the spot. It was also apprised to them that it is their right that they can take search of raiding team members as well as government vehicle. The notices have been signed by both the accused persons. The accused persons have also given their reply on the notice which is Ex.PW3/E and Ex.PW3/F. Accused Mehboob has stated that he was apprised about his legal rights and that he was also apprised the meaning of Gazetted Officer and Magistrate. He has understaood his legal rights. He does not want to get his search State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 28 of 37 conducted before any Gazetted Officer or Magistrate. Accused Ghanshyam has also replied similarly vide Ex.PW3/F.
27. In personal search conducted by PW7 ASI Mahender (second IO) a sum of Rs.700/in cash and carbon copy of notice u/s 50 NDPS Act was recovered vide personal search memo Ex.PW3/Q and from accused Mehboob Mansuri Rs.250/ and one carbon copy of notice u/s 50 NDPS Act was recovered. The said notices are Ex.P7&P8. Personal search memos of both the accused clearly indicate that notices u/s 50 NDPS Act were recovered from the accused persons. PW7 ASI Mahender has stated that he deposited the personal search/jamatalashi of both the accused in malkhana. No suggestion has been put by the Ld. Defence counsel to PW7 that he did not conduct the personal search of the accused persons or that he did not recover any notice in the personal search of accused. No question has been put to any of the witness of investigation by the Ld. Defence counsel that the notice was not read over and explained to accused. Recovery of notice u/s 50 NDPS Act during personal search conducted by PW7 ASI Mahender (second IO) clearly establish that the notices Ex.PW3/C and D were duly served upon accused State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 29 of 37 pesrons by PW3. The signature of the accused persons are available on the notice. The notices clearly indicate that the legal rights of the accused persons were explained to them and even they were also explained the meaning of Gazetted Officer and Magistrate.
28. As far as the case laws relied upon by the Ld. Counsel for the accused persons are concerned, I have perused the same. The notices Ex.CW3/C and D, reply given by both the accused as well as evidence on record clearly indicate that the accused persons were informed about the legal rights. They were given an opportunity that their search can be conducted in the presence of Gazetted Officer/Magistrate. In case Suresh & Ors. Vs. State of Madhya Pradesh, consent was sought for search. But in the present case IO of the case has clearly made accused persons understand about their legal rights and at no stage consent of the accused persons were sought. In another case 2013(1) JJC Narcotic 32, date, time and name of the officer was not mentioned and legal rights were not informed. However, in the present case, the notices find mentioned about name of the officer, with dated signatures and even the names and addresses of accused persons are also mentioned in the State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 30 of 37 notice. In case law 2014 (1) JCC (Narcotic) 13, again legal rights were not explained while in the present case the same has been explained properly. In case law 2013 (1) JCC (Narcotics) 18, it was illiterate lady who put her thumb impression on the notice and she was not explained about the rights. In the present case, though accused Mehboob is stated to be illieterate but he put his signatures on the notice and rights of the accused persons have been explained to them in right spirit. Therefore, the case laws relied upon by the Ld. Defence counsel, with due respect, are not applicable to the present facts and circumstances of the case.
29. In my view, the the accused persons, in the present case were explained about their legal rights. They were explained the meaning of Gazetted Officer or Magistrate. The evidence on record show that there is compliance of sec.50 NDPS Act. The contention of the Ld. Counsel, is therefore not well founded.
30. Another contention of the Ld. Counsel is regarding arrest timing of accused. No doubt that the accused was apprehended at about 10.00 a.m. The arrest memo shows that State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 31 of 37 one accused was arrested at 7.45 p.m and another to 8.30 p.m. It is a matter of general knowledge that after apprehension of accused, certain investigation would have been conducted there which would have taken some time. Accordingly rukka was sent at about 1.30 p.m and FIR was recorded at about 2.30 pm. Thereafter, second IO must have been deputed who would have come to the spot and prepared arrest memo of accused. Considering the time taken in investigation and preparation of documents, I am of the view that the contention of Ld. Counsel has no merit and it is not fatal for the case of the prosecution.
31. I have considered the evidence on record. On the basis of evidence, I come to the conclusion that all the witnesses specially PW4 HC Mukesh, HC Om Prakash and PW3 SI Sunil Jain have corroborated the statements of each other regarding recovery of heroin from accused persons i.e. 1.00 kg from accused Mehboob Mansuri and 500 gms from accused Ghanshyam Kumawat. Even this fact of recovery has been admitted by the defence in cross examination of witnesses as PW3 in cross examination has stated that while both the accused were apprehended from the spot, the public persons were coming and going from there. He has further stated that State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 32 of 37 the recovery effected from accused Ghanshyam Kumawat, he prepared its three sealed parcels and sealed with the seal of 2 BPS NB DELHI. He has further stated on the question of defence that the bag which was recovered from the accused Mehboob Mansuri was of one feet in width and quarter to one feet was in length. The bag was checked by him. It is correct that one Kg. Heroin was recovered from accused Mehboob Mansuri. PW5 has stated in cross examination that the blue colour rexine bag was in the right hand of accused Mehboob Mansuri. By putting these questions, defence has admitted the recovery of heroin from the accused persons.
32. PW5 SI Sunil Jain has stated that he recorded DD no.5, Ex.PW3/A regarding the information and the copy of the same was produced before Inspector for forwarding to senior officers. PW10 Insp.Kuldeep Singh has stated that SI Sunil Jain recorded DD no.55 which was forwarded by him to ACP, N&CP. PW9 ASI Om Prakash has stated that he received DD no.5 in the office of ACP and diarized the same vide entry no.34 and put up before ACP Sh Bir Singh who made his endorsement in encircled portion 'C'. So, there is sufficient compliance of sec.42 of NDPS Act.
State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 33 of 37
33. Rukka was prepared and sent to PS through HC Om Prakash for registration of FIR. Pw1 HC Jaswant recorded FIR Ex.PW1/D. PW6 Insp.PS Rana was working as SHO and he has stated that HC Omprakash handed over him six pullandas sealed with the seal of 3PBSNB DELHI, two FSL forms and seizure memos and he affixed his seal of PSR on them. He also put FIR number on pullandas after enquiring from duty officer. He called MHCM with register no.19 and deposited the same in malkhana. PW11 HC Jag Narain has corroborated his version that SHO Insp.PS Rana called him and deposited six pullandas in malkhana with FSL forms against which he made entry no.1522 vide Ex.PW11/A. No suggestion has been put to PW7 Insp.PS Rana that he did not put his seal on the pullandas or that he did not deposit the same in malkhana. So, there is compliance of sec.55 of NDPS Act.
34. PW3 SI Sunil Jain has stated that he prepared special report u/s 57 NDPS Act and submitted to Inspector. PW7 ASI Mahender has also prepared report u/s 57 NDPS Act regarding arrest and submitted to SHO. Both have not been cross examined in this respect. PW10 Insp. Kuldeep Singh has State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 34 of 37 stated that SI Sunil and ASI Mahender submitted reports to him and he forwarded the same to ACP, N&CP, the same are Ex.PW3/S and Ex.PW7/C. The prosecution has also examined PW9 ASI Om Prakash from ACP office who deposed that reports u/s 57 NDPS Act were received in the office which were put up before ACP Sh Bir Singh and entry in this respect was made in register at sr.no.47 & 48 copy of which is Ex.PW9/B and C and reports received are Ex.PW3/S and Ex.PW7/C. I have perused the cross examination of PW3 & 7 but no question has been put to them that they did not send the report to SHO and further to ACP. The evidence on record clearly indicate that report u/s 57 NDPS Act were duly sent to ACP office which was received there vide Ex.PW9/B and Ex.PW9/C. In view of the corroborative evidence, there is compliance of sec.57 of NDPS Act. So, there is sufficient compliance of provisions of NDPS Act in this case. The testimonies of witnesses could not be shattered by the Ld.counsel for accused in cross examination.
35. Accused persons have taken the plea in their statements recorded u/s 313 Cr.PC that they have been falsely implicated in this case by the police. But they have failed to State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 35 of 37 lead any evidence in this respect. They even did not specify as to why they have been falsely implicated in this case. Further, the accused persons have not lodged any complaint to any authority regarding their false implication. There was not enmity or animosity between the accused and the police. The accused persons have failed to explain as to why they were present in Delhi on the day of incident while they are residents of Mandsor M.P. In my view, the accused persons have taken such a plea only for the sake of plea but they could not prove the same. Accordingly, the prosecution has proved its case that on 04.01.2013 Opp. Bikaner Wala Sweet Shop, Loha Mandi Road, Naraina, New Delhi accused Mahboob Mansuri was found in possession of 1 kg heroin and accused Ghanshyam Kumawat was found in possession of 500 grams heroin. Report of FSL proved by PW8 Ms. Kavita Goyal, Ex.PW8/A confirms that the recovered substance was found to have contained Diacetylmorphine 24.8% and 16.6%, Phenobarbital 45.1% and 55.2%, Caffeine 6.2% and 6.9%,Paracetamol 6 Monoaceytlmorphine, acetylcodeine and alprazolam. PW8 has stated that Diacetylmorphiine is the chemical name for smack/heroin etc. Therefore, the prosecution has successfully proved that 1 kg and 500 grms heroin was recovered from State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 36 of 37 accused Mehboob Mansuri and Ghanshyam Kumawat respectively which is a commercial quantity.
36. In consideration of my above discussions, I am of the view that the prosecution has successful in proving that heroin in commercial quantity was recovered from both the accused. I, therefore, hold Mehboob Mansuri and Ghanshyam Kumawat guilty for the commission of offence punishable u/s 21(c) of NDPS Act, and convict them thereunder. Announced in the open Court on 04.12.2014.
(SURESH CHAND RAJAN) ADDL.SESSIONSJUDGE/ SPECIAL JUDGE(NDPS) (South West District) Dwarka Courts/ NEW DELHI State Vs.Mehboob Mansuri etc. FIR No.03/13 Page No. 37 of 37