Delhi District Court
Sc No. 7201/16 State vs . Parmod Kr. Pradhan & Ors. Page 1 Of 66 on 28 October, 2017
1
IN THE COURT OF DR. S.K. GAUTAM
SPECIAL JUDGE (NDPS)/ASJ, SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
S.C. No. 7201/2016
(Old S.C. No. 16A/13)
FIR No. 317/13
u/s 20 (b) (ii) (c) of NDPS Act
PS-Mehrauli
State
VERSUS
1. Parmod Ku Pradhan
S/o Sh. Girdhari Pradhan
2. Prashant Ku Pradhan
S/o Sh. Mani Pardhan
Both R/o Village-Boinda (Hulur Singh)
PS-Handopa Angul Distt.-Angul,
Orissa.
Computer ID No. : DLST01-000482-2013
Date of institution : 28.09.2013
Date of reserving judgment : 25.10.2017
Date of pronouncement : 28.10.2017
Decision : Conviction.
JUDGMENT
BRIEF FACTS OF THE CASE 1.0 The facts as germane from the prosecution story are that on 21.05.2013, HC Yatender Malik, HC Lav Kumar, Ct. Ashok Kumar, Ct. Naveen Kumar and SI Rakesh Kumar were present on picket duty at Ahimsa Sthal, M.G. Road, Mehrauli. At about 02:50pm, one truck bearing no. OR 19L 4569 was apprehended near SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 1 of 66 2 the police barricade. On inquiry, the name of above truck driver was revealed as Pramod Kumar Pradhan and one other person, whose name was revealed as Prashant Kumar Pradhan and he was sitting behind Pramod Kumar Pradhan. The accused Pramod Kumar could not show the documents of the vehicle on asking of SI Rakesh Sharma. SI Rakesh Sharma had felt a pungent smell emanating from the cabin of the truck. When the accused were questioned in this regard, they could not give satisfactory reply. Thereafter, SI Rakesh with the help of Ct. Ashok formally checked the body of the truck and observed that there was an open space in between the cabin and the back portion of the truck and there was an iron sheet between the driving cabin and the back portion of the truck, which was dividing these portions and creating a hidden cavity/box between them. The said cavity space was checked, on which it was found containing three plastic kattas. Both accused persons could not given satisfactory reply. SI Rakesh Kumar took out above three kattas from the truck and checked them, which were containing ganja. On inquiry, both accused told that the said ganja belonged to them and they are the suppliers of ganja and it was brought by them from Orissa for its supply in Delhi at different areas. SI Rakesh informed about the above facts to Sh. Atul Kumar, SHO and to the Duty officer through telephone.
1.1 SI Rakesh Kumar had requested 4-5 passersby to join SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 2 of 66 3 the proceedings but none agreed and all left the spot without disclosing their names and addresses. No notice could be given to them due to paucity of time. SI Rakesh Kumar told both accused that there was possibility of some further recovery of ganja from their possession and their search was required to be conducted. SI Rakesh Kumar had informed about their legal rights to them in Hindi that if they wanted, their search could be conducted in the presence of a Gazetted officer or a Magistrate and they could be called at the spot for search. SI Rakesh Kumar also offered both the accused to take the search of the police officials before giving their search, both accused refused for the same and stated that as ganja had already been recovered from the truck and they do not want to get themselves searched before the Gazetted Officer or the Magistrate and police officials could take their search. Both accused also refused to take the search of the police officials. Both the accused persons were given separate written Notice u/s 50 of NDPS Act. Both accused stated they could only understand the Hindi language, but they did not know to write it and hence, SI Rakesh Kumar had written the refusals of both accused persons on the carbon copies of their notices as per their versions and both accused persons had signed on their Notice u/s 50 of NDPS Act and also on their replies/refusals. Both the accused persons and truck were further searched, but nothing incriminating was recovered from both the SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 3 of 66 4 accused and from the truck.
1.2 Thereafter, the above three kattas were checked, on which they were found containing 42 poly packs of ganja from each kattas. Mark A, B, and C were given on the above plastic kattas for identification. Total 126 poly packs were found in the above kattas, which were found containing ganja in it. Each poly pack was weighed on a computerized weighing scale and its weight came to be 1 kg each alongwith the poly packs. Total weight of ganja was also taken and it came to be 126 kg.
1.3 One poly pack of one kg each were taken out as sample from each plastic kattas. Remaining 41 poly packs of 1 kg each were kept in the respective kattas. All the plastic kattas were stitched with plastic rope and tied with white clothes from different places and sealed with the seal of RS. All the three sample poly packs were kept in separate cloth pullandas and were sealed with the seal of RS and Mark AS-1; BS-1 and CS-1 were given on it. 1.4 Form FSL was also filled up on which seal of RS was affixed. Seal after use was handed over to Ct. Ashok Kumar. SI Rakesh Kumar handed over all the recovered Kattas, sample parcels, FSL were taken into possession vide seizure memo. SI Rakesh Kumar had prepared rukka and handed over the same alognwith all pullandas, FSL forms and carbon copies of seizure memos to Ct. Yatender Malik with the direction that rukka be handed over to duty SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 4 of 66 5 officer for registration of FIR and other articles i.e. carbon copy of seizure memos, FSL forms and all six pullandas shall be handed over to SHO.
1.5 Thereafter, HC Yatender Malik alongwith three plastic kattas mark A, B and C, three sample parcels pullandas mark AS-1, BS-1 and CS-1, FSL form and copy of seizure came in the office of Inspector Atul Kumar, SHO and handed over all the articles to Inspector Atul Kumar. All the pullandas and FSL form were duly sealed with the seal RS. Inspector Atul Kumar called HC Ved Pal MHC (M) alongwith register no. 19, who came in the office and Inspector Atul Kumar put his seal of 'AKV' on the parcels and on the FSL form. HC Ved Pal MHC (M) deposited the same in the malkhana vide entry at sl no. 3226 in register no. 19. SHO made endorsement against the said entry and made a DD entry no. 33-A in this regard. 1.6 Thereafter, ASI Bijender Singh had come at the spot as the investigation was assigned to him alongwith Ct. Yatender Malik . SI Rakesh Sharma had handed over the custody of accused persons and truck no. OR 19L 4569 to ASI Bijender Singh. IO/ASI Bijender Singh prepared site plan at the instance of SI Rakesh Sharma. Accused Pramod Kumar Pradhan and Prashant Kumar Pradhan were arrested vide arrest memos (Ex. PW6/F and Ex. PW6/G) and their personal search memos were prepared vide memo (Ex. PW6/H and Ex. PW6/L). He also recorded disclosure statements (Ex. PW6/J and SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 5 of 66 6 Ex. PW6/K) respectively. Truck bearing no. OR 19L 4569 was taken into possession vide memo Ex. PW6/L. Thereafter, truck and both accused persons were brought to the police station. Truck and articles of personal search of both accused were deposited in malkhana. Both accused were produced before Inspector Atul Kumar SHO, who had also interrogated from the accused persons. Thereafter, both accused were sent to AIIMS hospital for their medical examination.
1.7 ASI Bijender Singh prepared the information u/s 57 of NDPS Act regarding seizure of narcotic from both accused persons and forwarded it to ACP through Inspector Kuldeep Singh. ASI Bijender Singh also prepared the information u/s 57 of NDPS Act (Ex. PW4/A) which was duly forwarded by the SHO to ACP concerned. 1.8 During investigation, Ct. Yatender Malik alongwith SI Rakesh Sharma and accused Pramod Kumar Pradhan had gone to District Angol, Orissa in search of co-associate Beg Pradhan and in search of the owner of truck. Thereafter, SI Rakesh Sharma had given a notice to Sh. Arup S. Patnaik, owner of the truck. On 26.05.2013, Sh. Arup S. Patnaik came at PS Angol and gave some documents with regard to the agreement and same were taken into possession vide seizure memo Ex. PW1/B. 1.9 On 24.06.2013, three sample parcels with FSL form with the seals of RS and AKV were sent to CFSL, Lodhi Colony vide RC no. SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 6 of 66 7 90/21/13 through Ct. Kailash. As per report of CFSL (Ex. FR/1) dated 14.11.2013, Exhibits AS-1, BS-1 and CS-1 were found containing ganja. After completion of investigation, charge sheet was filed in the Court.
2.0 Arguments on charge were heard and on 31.01.2014, both accused were charged for the offence punishable u/s 20 (b) (ii) (C) of NDPS Act on the allegation that on 21.05.2013 at about 03:00pm at the Police picket, Ahinsa Sathal on M. G. Road, Mehrauli both accused were found to be in possession of and transporting 126 kg of ganja (weight alongwith polythene) in truck no. OR-19L- 4569, which was contained in three bags/kattas, each having 42 polythene containing ganja, which were found concealed in an iron/steel box made in between the cabin of the above truck and the open space behind it without any permit or licence and in contravention of the provisions of Section 8 (c) of NDPS Act. 3.0 In order to prove its case, Prosecution examined following witnesses:
3.1 Sh. Arup Sambed Pattanayak (PW-1) owner of truck bearing registration no. OR-19L-4569 deposed that he purchased the truck through L & T Finance in the year 2011. As he could not pay the installments, he sold the truck to one Bhuwaneshwar Pradhan on 16.02.2013. An agreement for sale of truck was executed between him and Sh. Bhuwaneshwar Pradhan which is Ex. SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 7 of 66 8
PW1/A. He deposed that the truck was registered in his name and after clearing all the installments of the finance company, the truck was to be transferred in the name of Bhuwaneshwar Pradhan. In the month of September 2013, police called him regarding the investigation and he produced the said agreement Ex. PW1/A to the police, who seized the same vide seizure memo Ex. PW1/B. 3.2 Ct. Kailash (PW-2) deposed that on 24.06.2013 on the directions of IO/ASI Bijender Singh, he took three sealed sample parcels sealed with the seal of 'RS' and 'AKV' alongwith CFSL Form from MHC (M) and same were taken to CFSL Lodhi Colony vide road certificate no. 90/21/13. After depositing the same, he handed over the acknowledgment alognwith road certificate to MHC (M) . He placed on record road certificate mark PW 2/1 and copy of acknowledgment on the back side of mark PW2/1 is mark PW 2/2. PW-2 deposed that so long the the parcels remained in his possession, the same were not tampered with by anybody. 3.3 HC Vedpal (PW-3) working as MHC (M) at PS Mehrauli on 21.05.2013. He deposed about the deposit of three pullandas having seals of 'RS' and 'AKV' vide entry at sl. no. 3226 in register no. 19. 3.4 PW-3 HC Ved Pal also deposed that on 24.06.2013, three sample parcels alongwith FSL form were sent to CFSL, Lodhi Colony through Ct. Kailash. He made endorsement on the register in register no. 19 against sl. no. 3226 which is Ex. PW3/A. Copy of RC SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 8 of 66 9 no. 90/21/13 dated 24.06.2013 is Ex. PW3/B. 3.5 He further deposed that on 05.06.2014, truck no. OR-19- 4569 was released to the superdar on superdari vide endorsement at point C in register no. 19 against serial no. 3226. Copy of endorsement on the backside of RC of CFSL, Lodhi colony is Ex. PW3/C. 3.6 Ct. Ram Singh (PW-4) received report u/s 57 of NDPS Act from ASI Bijender Singh duly forwarded by SHO, Mehrauli on 22.05.2013 and he diarized put up before the ACP, who had seen the same and put his signatures thereon The Report u/s 57 of NDPS Act is Ex. PW4/A. PW-4 also entered information at sl no. 3 diary number 1639/R/SHO Mehrauli dated 22.05.2013 in the dak register. 3.7 Sh. S. K. Goswami ACP (PW-5) deposed that he had received an information u/s 57 of NDPS Act on 22.05.2013 which is Ex. PW4/A. 3.8 HC Yatender Malik (PW-6) is one of the member of raiding team headed by SI Rakesh Kumar . He has deposed about the apprehension of the accused, recovery of 'ganja' from the possession of accused persons and proceedings conducted by SI Rakesh Kumar at the spot. PW-2 placed on record Notices u/s 50 of NDPS Act Ex. PW6/A and refusal Ex.PW6/B (of accused Pramod Kumar Pradhan), and Notice u/s 50 of NDPS Act Ex. PW6/C and SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 9 of 66 10 refusal Ex. PW6/D (of accused Prashant Kumar Pradhan). He deposed that SI Rakesh Kumar took all the three pullandas and FSL form taken into possession vide seizure memo Ex. PW6/E, arrest memos of accused Pramod Kumar Pradhan and Prashant Kumar Pradhan Ex. PW6/F and Ex. PW6/G respectively; personal search memos of both accused Ex. PW6/H and Ex. PW6/I respectively; disclosure statement of both accused Ex. PW6/J and Ex. PW6/K. 3.9 PW-5 Sh. S.K. Goswami further deposed that truck and both accused persons were brought to the police station. Truck and articles of personal search articles were deposited in the malkhana. Both accused were produced before SHO, who had also interrogated them.
3.10 PW-5 Sh. S.K. Goswami further stated that he alongwith SI Rakesh Sharma and accused Pramod Kumar Pradhan had gone at District-Angol, Orissa in search of co-associate Bega Pradhan and in search of owner of the truck. Thereafter, Investigating officer had given a notice to the owner of the truck Sh. Arup S. Patnai. On 26.05.2013, he came at Police Station Angol where he had given some document with regard to agreement which were taken into possession vide seizure memo Ex. PW1/B. 3.11 HC Vishram Meena (PW-7) was the Duty Officer at PS Mehrauli from 04:00pm to 12 night. He deposed that at about 05:55 pm, HC Yatender Malik had brought a rukka, on the basis of SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 10 of 66 11 which he recorded FIR No. 317/13 vide Ex. PW7/A. PW7 also made endorsement on the rukka Ex. PW7/B. He deposed that copy of FIR was handed over to Ct. Yatender Malik to be handed over the same to ASI Bijender Singh , as further investigation was entrusted to him. He also placed on record copy of DD no. 32A Ex. PW7/C and certificate u/s 65-B vide Ex. PW7/D. 3.12 Ct. Ashok Kumar (PW-8) is also one of the member of raiding team. His deposition is on the same footing as deposed by HC Yatender Malik (PW-6).
3.13 PW-10 Si Rakesh Sharma stated that he issued certificate u/s 65-B of Indian Evidence Act with regard to registration of computerized FIR (Ex. PW10/B). 3.14 PW-10 also deposed that on 18.05.2014, ASI Rajbeer Singh handed over three sealed cloth parcels bearing marks D, E and F sealed with the seals of '6A PS NB DELHI' and Form FSL having the same seal and copy of seizure memo of 'Heroin'. He put his counter seal of MKT on all the pullandas and FSL form, which were already sealed with the seal of '6A PS NB DELHI' . PW-10 further deposed that he called HC Jag Narain, MHC(M) with register no. 19 in his office and handover sealed pullandas and documents to him. He also made a DD entry No. 8 Ex. PW10/C in daily diary register with regard to the deposit of case property, sample parcels and other documents with MHC (M).
SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 11 of 66 12 3.15 PW10 SI Rakesh Sharma, who was the initially investigating of the matter and was also incharge of the raiding team. He was at the picket duty at M.G. Road, in front of Ahimsa Sthal for checking the vehicle. He apprehended truck no. OR 19L 4569 and on checking it found containing the contraband substance. Thereafter necessary compliance of various provisions of NDPS Act had been carried out and rukka was prepared by him. On the basis of rukka, FIR was registered and further investigation was carried out by PW11 SI Bijender Singh, who has made arrest of the accused persons and prepared site plan at the instance of PW10 vide Ex. PW11/A and also recorded statement of SI Rakesh Sharma (PW10) and examined other police officials under section 161 Cr.PC. He also conducted personal search of accused and arrested them and in the personal search original copies of notices under section 50 of NDPS Act and other personal search articles were got recovered, which had been mentioned in the personal search of accused persons. Disclosure statements of both accused were recorded vide memo Ex. PW6/J and Ex. PW6/K. Case property pullinda, sample parcels alongwith FSL form were taken into possession. Later on, on 24.06.2013, the same were being sent to CFSL through Ct. Kailash as the said case property along with form was deposited in the CFSL against the acknowledgement receipt of CFSL alongwith copy of RC to the MHC(M). He also SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 12 of 66 13 recorded statement of Ct. Kailash and SHO under section 161 Cr.PC. During the Course of investigation, PW11 SI Bijender Singh prepared report under section 57 of NDPS Act, which was duly forwarded by the SHO to ACP concerned. The said report is Ex. PW4/A. Notice under section 50 of NDPS Act was recovered from the possession of accused persons vide Ex. PB and Ex. PE. The witness is being cross-examined by learned defence counsel at length, who submitted that there are many contradictions in the case of prosecution.
4. After conclusion of the prosecution evidence, the statement of accused was recorded under Section 313 Cr.PC. Though FSL report was also tendered by the learned Additional Public Prosecutor and in his statement exhibited as Ex. FR1. The Court also recorded statement of court witness CW1 Ct. Deepak, who also got executed process under section 83 Cr.PC against the accused Bhuwaneshwar Pradhan @ Bega Pradhan, son of Sh. Baikuntha Pradhan. His report is Ex. CW1/A. The application for taking assistance of the local police is Ex. CW1/B. A photograph showing the pasting of the process at the house of the accused is Ex. CW1/C. The statements of the uncle and father of accused recorded during the execution of the said process are Ex. CW1/D and Ex. CW1/E respectively. Copy of DD No. 45B dated 05.11.14 regarding his departure from the PS for execution of the said SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 13 of 66 14 process is Ex. CW1/F.
5. CW2 HC Bhagat Singh, who visited village-Luhamunda of accused Bhubneshwar Pradhan @ Bega Pradhan on 28.12.2014 for execution of process under section 83 CrPC alongwith Ct. Deepak and proved his report to this effect vide Ex. CW2/A and two statements Ex. PW2/B and Ex. PW2/C respectively. The application to the the SHO of PS-Handappa for providing police assistance is Ex. PW2/D. The application given by him to ACP, Mehrauli through the SHO of PS-Mehrauli for outstation permission is Ex. PW2/E.
6. Both the accused persons were examined under section 313 Cr.PC and all the incriminating evidence put before each of the accused persons, to which they stated as incorrect and further testified that accused Prashant Kumar Pradhan alongwith three other persons namely Sujit Kumar Sahu, Bhuvneshwar Kumar Pradhan and Prashant Kumar Pradhan were apprehended on 20.05.2013 at about 5 am from Kosikalan, Mathura while they were sleeping on footpath and they were brought to police post Badarpur around 11:30 am The police let off Sh. Sujit Kumar Sahu and Bhuvneshwar Kumar Pradhan after taking some money from them. Nothing was recovered from them or from the truck in their presence. They have been falsely implicated in the present after obtaining signatures on some blank and semi written papers. There was no cavity in the truck. Nothing was recovered from SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 14 of 66 15 them or from the truck in their presence. In the police post Badarpur, police had beaten them and under threat and coercion they obtained their signatures on some blank and semi written documents and subsequently those papers were used by manipulating to falsely implicate them. No notice was given to them in the police station and they had not given any disclosure statement to police. They were not taken anywhere for any purpose. On 22.05.2013, they were produced before the Court. Their mobile phones were taken by the police officials. Similarly, co-accused Prashant Kumar Pradhan answered to the question put up to him while recording his statement under Section 313 Cr.PC. At the time of apprehension accused Prashant was using mobile no. 09777120506 and accused Pramod Kumar was using mobile phone no. 09937648637 (Airtel). They also wanted to lead defence evidence. In order lead defence evidence, the accused examined DW1 Ct. Umesh Sharma, who brought the summoned record pertaining to RTI application moved by accused Prashant Kumar Pradhan vide Ex. DW1/A and sent reply dated 05.12.2014 to the accused vide Ex. DW1/B. The information received from ACP, Mehrauli vide letter Ex. PW1/C, which bears his signature and SHO at point A. Accused persons also summoned DW2 Sh. Surender Kumar, Nodal Officer, Bharti Airtel, who brought the Call Detail Record of mobile numbers 9937648637 and 9777120506 alleged to SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 15 of 66 16 have been belonging to the accused persons. The arrested copy of CDR, CAF and Tower Location Chart of the above said mobile numbers along with a covering letter is Ex. DW2/A collectively, running into 13 pages.
7. Learned Additional Public Prosecutor for State has argued that the submissions made by the counsel for the accused persons, do not substantiate in view of the latest judgement of the Apex Court whereas police officers are at par to the other public witnesses. Their testimonies are inspiring the confidence. So far as the contradictions as being pointed out are minor one, which do not deny the recovery of the contraband substances from the possession of the accused. The counsel for the accused has not pointed out any material defect or contradiction in the investigated conducted by the police officials. There may be something happened here and there while dealing with the matter but that defect if any pointed out in the investigation regarding taking of the sample as well as difference of timing for the arrival and departure from the PS and sending rukka etc. does not much effect the case of the prosecution. Though during the entire submissions made by the defence counsel does not deny by any recovery, though it is alleged that the accused persons falsely implicated in the present case as they have been lifted from Kosi Kalan, Mathura. It is also pointed out by the learned Additional Public Prosecutor SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 16 of 66 17 that so far as the source and the recipient of the contraband, the police officials tried to lay hand while taking the accused persons on police remand but could not trace out, despite best efforts made by them. The accused persons in their statement recorded under section 313 Cr.PC through out stated that they have been falsely implicated in this case by the police officials. Accused Prashant stated that on 20.05.2013, he alongwith three other persons namely Sujit Kumar Sahu, Bhuvneshwar Kumar Pradhan and Pramod Kumar Pradhan were apprehended while they were sleeping on the footpath at Kosi Kalan, Mathura. The police party in plain clothes came in Bolero vehicle and they asked them about the presence of truck, on which Bhuvneshwar Kumar shown them the documents of his truck and also explained them that the truck is stationed due to break down. There was a police picket near that place. The police party took all documents regarding ownership of truck from Bhuvneshwar Kumar Pradhan. They were brought to police post Badarpur alongwith truck and all four remained there till next morning. On 21.05.2013, the police let off Sh. Sujit Kumar Sahu and Bhuvneshwar Kumar Pradhan after taking something from them. At about 10 am on 21.05.13, police party took him and Pramod Kumar Pradhan to the Hospital for medical examination at about 11:00-11:30 am and thereafter, they were taken to PS-Mehrauli. Nothing was recovered from them or from SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 17 of 66 18 truck, in their presence. In the police post Badarpur, police had beaten up him and his co-accused Pramod Kumar under threat and coercion they obtained their signatures on some blank and semi written documents and subsequently those papers were used by manipulating to falsely implicate him in the present case. No notice was given to us in the police station and he had not given any disclosure statement to the police. After reaching at Police Station at 11:30 am on 20.05.2013, he was not taken anywhere for any purpose. On 22.05.2013, he along with co-accused Pramod Kumar Pradhan produced before the Court. At the time of their apprehension they were using mobile phones. Their mobile phones were taken by the police from them and were not shown in Jamatalashi. Therefore, prayed that both the accused persons be convicted in accordance with charge framed upon them.
8. It is further argued by the learned Additional Public Prosecutor for State that the prosecution witness are trustworthy and reliable. They have proved the apprehension of the accused persons with narcotic drug. There is no inherent contradiction and discrepancies in their statements, if any, some are minor and can be ignored. Investigating Officer had made all sincere efforts to join the public witnesses during the raid and at the time of investigation as well as recovery and seizing narcotic drug, although they could not be joined due to some excuses and SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 18 of 66 19 plausible reasons. Even in the absence of statement of public witness, the statement of official witnesses can be relied. It is also argued that all statutory compliance have been made and apart from the evidence of recovery witnesses, there is disclosure statement of accused persons, which itself is sufficient to establish guilt of accused persons. Accused have not been able to establish that statement was not voluntary or it was obtained under pressure and coercion. It is also argued that there is no retraction of disclosure statements. The total recovery of the contraband substance recovered from the truck, was in conscious possession of the accused persons. Once the prosecution proved the possession of narcotics drugs from accused, presumption of culpable state of mind under Sections 35 and 54 of NDPS Act arise against accused which they have failed to rebut. Such a huge quantity of narcotics drugs cannot be planted. Moreover, there is no reason or motive for false implication of accused.
9. Learned Addl. PP relied upon number of judgments in support of his contentions. With regard to statement under Section 67 of NDPS Act, he relied upon Kanhiya Lal Vs. Union of India AIR 2008 (SC) 1044, Raj Kumar Karwal Vs. UOI & Ors. 1991 Cr.L.J. 97(SC), K.I. Pavunny Vs. Asstt. Collector (1997) 3 SCC 721, Triveni Prasad Vs. State of Maharashtra AIR 1976 SC 2156 and A.K. Mahaboob Vs. I.O. NCB (2001) 10 SC 203.
SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 19 of 66 20
10. With regard to evidential value of testimony of official witnesses, learned Addl. PP relied upon Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, Kiran Mehlawat Vs. State 2010 (2) JCC 1212, M. Prabhulal Vs. The Assistant Director, DRI 2003 (3) CC (SC) 67, State of Punjab Vs. Surjit Singh & Anr. 2009 (3) JCC (Narcotics) 106, Takhaji Hiraji Vs. Thakore Kubersing Chamansing & Ors. 2001 IV AD (SC) 393, Dalbir Kaur & Ors. Vs. State of Punjab 1977 Crl.L.J. 273 (SC), Shanker Vs. State of U.P. (1975) 3 SCC 851, Sumit Tomar Vs. State of Punjab 2012 (10) Scale 507 and P.P. Beeran Vs. State of Kerala II (2001) SLT 779.
11. With regard to compliance of Section 55 of NDPS Act, learned Addl. PP relied upon Siddiqua Vs. NCB 2007 (1) JCC (Narcotics) 22, Balbir Kaur Vs. State of Punjab 2009 (3) JCC ( Narcotics) 143, Ruiz Guerrero Dolore Vs. Customs 2000 (2) JCC (Delhi) 357, Babubhai Odhav Ji Patel & Ors. Vs. State of Gujarat (2005) 8 SCC 725, Nirmal Singh Pehlwan Vs. Inspector, Customs 2010 (1) JCC (Narcotics), Madan Lal Vs. State of H.P. 2003 Crl.L.J. 3868 SC, State of Haryana Vs. Vidyadhar 2002 (3) SCC 296, P.P. Fathima Vs. State of Kerala 2003 (3) CC Cases (SC) 299, Rangi Ram Vs. State of Haryana 2002 (2) JCC 1041 and Khet Singh Vs. UOI (2002) 3 SC Cases 380.
12. With regard to presumption under Section 35 NDPS Act, learned SPP relied upon Amjad Shahid Vs. State 2005 (1) CC cases SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 20 of 66 21 (HC) 68, Arif Butt Vs. State 2005 (1) CC Cases (High Court) 64, Madan Lal & Anr. Vs. State of Himachal Pradesh 2003 (3) JCC 1330, Jagdish Budhroji Purohit Vs. State of Maharashtra (1998) 7 SCC 270, Megh Singh Vs. State of Punjab 2003 VIII AD (SC) 27, Devenchand Kalyan Tandel Vs. State of Gujarat & Anr. 1996 1 SVLR (Crl.) 245 SC, Pawan Mehta Vs. State 2002 Drugs cases 183 (Delhi High Court), UOI Vs. Munna & Anr. 2004 (3) JCC 1385 and Shah Guman Mal Vs. The State of Andhra Pradesh AIR 1980 SC 793.
13. With regard to minor discrepancies and contradictions in statements of witnesses, learned Addl. PP relied upon Amrita @ Amrit Lal Vs. State of M.P. 2004 (1) CC Cases (SC) 220, Brij Lal Vs. State of Haryana 2002 (1) CC cases (SC) 46, State of Himachal Pradesh Vs. Lekh Raj & Ors. 2000 (1) JCC SC 57, Sukhdev Yadav & Ors. Vs. State of Bihar (2001) 8 SCC 86, Rohtas @ Bunder Vs. State of Haryana, 2003 (2) CC cases (P&H) 238, Dharamvir & Anr. Vs. The State Govt. of N.C.T. Of Delhi 2002 (3) JCC 1834, Ezhil & Ors Vs. State of Tamilnadu 2002 (2) JCC 957 and Chander Bhan Ram Chand Vs. State 1971 Crl. L.J. 197 (P&H).
14. It is the case of the prosecution that on 21.05.2013, he was posted PW10 SI Rakesh Sharma, PW8 Ct. Ashok Kumar, PW6 HC Yatender Malik, HC Luv Kumar and Ct. Naveen were present on picket duty at about 10:30 am at Ahinsa Sthal, M.G. Road and checking the vehicles while putting the barricades. At about 2:50 SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 21 of 66 22 pm, one truck bearing no. OR 19L 4569 found coming from the side of M.B. Road at Lado Sazrai red light. The driver of the said truck hit the barricade. PW10 SI Rakesh Sharma stopped the above struck with the help of other police officials and asked the driver to produce its documents and entered into cabin of truck and felt some smell. On inquiry, the name of the driver of truck was came to be known as Pramod Ku Pradhan and the name of the person, who was sitting at the adjacent seat came to be known as Prashant Ku Pradhan. It is not the case of the prosecution that there was secret information and a raid was conducted. It is a routine checking of the vehicles while putting a barricade and the driver of the vehicle hit the barricading, as such they were searched of the ownership documents from accused Pramod Ku Pradhan while being on the driver seat. There was a smell, on the basis of which the narcotic contraband was recovered. On this, the accused was interrogated and their disclosure statements were recorded to this effect and in search of the cabin, there found open space between the cabin and back portion of the truck and there was iron sheet between the driver seat, dividing these portions and creating a hidden cavity/box between them. The body of the truck was found covered with green colour tirpal. On checking the cavity was found containing three white colour plastic katta and the katta was found containing Ganja in plastic polythenes. PW10 SI Rakesh inquired SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 22 of 66 23 about the same from accused persons. They told that it was Ganja and they used to supply it in Delhi after bringing the same from Orissa. Then information regarding recovery of Ganja was sent to Inspector Atul Kumar, SHO of Police Station-Mehrauli through telephone, who also informed the Duty Officer of Police Station. PW10 SI Rakesh asked 4-5 passers by to join the proceedings, but none agreed and left the spot without disclosing their names and addresses. PW10 SI Rakesh told accused persons that the Ganja was recovered from the cabin of truck and there was suspicion of more Ganja or any contraband can be recovered from them, for which PW10 SI Rakesh prepared and served notice under section 50 of NDPS Act and apprised them about their legal right that if they want their truck and their person can be searched before a Gazetted Officer or a Magistrate, same can be arranged. PW10 SI Rakesh Sharma also told to the accused persons that if they want to search the members of rading team before their search, they had right to do so. Accused persons replied that they have committed a mistake and they are having no more Ganja or contraband substance in their possession and they do not want their search or the search of their truck before a Gazetted officer or a Magistrate. The original copies of the notices were served upon the accused persons and they had replied on the carbon copies of the notices. Both the accused persons had signed on the notice in SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 23 of 66 24 English. Thereafter, the truck was searched, but nothing incriminating or contraband substance or Ganja was recovered. All the three kattas were checked, and the kattas were found containing 42 poly packs in each. The total weight of 126 packets containing Ganja was found in the truck, which were weighed on a computerized scale. One poly packet of one Kg. Each Ganja was taken out as sample from each plastic Katta. Remaining 41 poly packets of each katta were kept in the respective kattas. Sample poly packets were kept in cloth pullinda. Mark AS-1, BS-1 and CS-1 were given on them. The plastic kattas were stitched with rope and tied with white cloth pieces from different places. Seal of RS was affixed on all the three parcels. Form FSL was filled up, on which seal of RS was affixed. Seal after use was handed over to PW8 Ct. Ashok Kumar. All these proceedings were conducted at the spot. PW11 ASI Bijender Singh was called at the spot. After being prepared rukka, FIR was got registered and further investigation was handed over to ASI Bijender Singh. The information regarding recovery of contraband substance was sent to concerned ACP through SHO concerned. Necessary compliance of all the provisions was made under the NDPS Act.
15. At the very outset, it is revealed that it is a case, where heavy recovery of contraband has been effected from the cavity of the truck driven/occupied by the accused persons but such a huge SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 24 of 66 25 recovery of narcotics drugs by itself cannot be taken to mean that statements of prosecution witnesses is to be accepted at their face-value, ignoring the basic principle of criminal jurisprudence. The prosecution has to prove its case against the accused beyond reasonable doubts. It is a settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof.
16. The Honorable Supreme Court in the case of Noor Aga Vs. State of Punjab (supra) observed as under:
" It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shocking the conscious of any Court, but it is well settled that suspicion, however high may be, can under no circumstances be held to be a substitute for legal evidence."
17. Thus, the evidence on record needs to be appreciated on the basis of basic principle of criminal jurisprudence without being swayed by the quantity of the narcotics drug allegedly recovered from the accused persons.
18. The prosecution in all has examined eleven witnesses. All witnesses are police officials, though time again made efforts to join the public witnesses, but none of the public witnesses had been available to join in the proceedings. All these witnesses have spoken about apprehension of the accused persons along with the truck and the narcotic substance was being got recovered from the SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 25 of 66 26 cavity/box of the truck.
19. After going through the record, it is observed that recovery of narcotic drug has been effected from the cavity of a truck in a huge quantity. In absence of independent witnesses it cannot be said that the prosecution case is motivated or planted. Even it cannot be said that the evidence on record does not inspire much confidence in any manner as regard to the recovery of the substance. It is a case of chance recovery. While checking of the truck PW10 SI Rakesh Sharma found that some smell was coming from the cavity of the truck. PW8 Ct. Ashok Kumar, who was also on picket duty at M.G. Road, Ahimsa Sthal alongwith HC Love Kumar and Ct. Naveen and during the cross-examination has stated that he had signed the seizure memo, the notice under section 50 of NDPS Act, which was given to accused Pramod Kumar Pradhan firstly. The reply of the notice written by the IO SI Rakesh Sharma (PW10) on the instance of accused Pramod Kumar Pradhan and was read over to the accused Pramod Kumar Pradhan, who had signed it after going through the reply and thereafter, similar reply was given by the accused Prashant Kumar Pradhan on the carbon copy of notice under Section 50 of NDPS Act. The original Tehrir and FIR were handed over to ASI Bijender Singh when he reached at the spot. Personal search of the accused persons was conducted at 9:00 pm prior to their arrest. It is denied that SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 26 of 66 27 accused Pramod Kumar Pradhan and Prashant Kumar Pradhan were arrested from Kosi Kalan, Mathura, U.P. It is also denied that at the time of their arrest at Kosi Kalan, two mobile phones bearing no. 09937648637 and 09777120506 respectively were also recovered from accused persons. It was also denied that the accused persons were arrested on 20.05.2013 at Kosi Kalan and were taken to PS- Mehrauli at 11:00 am. It is further denied that on 20.05.2013 till 22.05.2013, the accused persons were detained in the PS-Mehrauli or that they were arrested on 21.05.13 from Ahimsa Sthal or that notice under section 50 of NDPS Act was not served upon the accused persons in their presence. So far as the deposition of the witness PW8 Ct. Ashok Kumar is concerned, it is similar to PW6 HC Yatender Malik and PW10 SI Rakesh Sharma, who are being testified in their deposition that they have denied each and every suggestion made in the cross-examination by the defence counsel. So far as suggestions made by the defence counsel to join the public witnesses, the Investigating Officer SI Rakesh Sharma at every stage of the investigation till it was remained with him have made ample efforts to join the public witnesses. Even though when the investigation was handed over to ASI Bijrender Singh, he also made an attempt to join the the public witnesses at the time of arrest of the accused persons. However, none of the public witnesses have joined the the investigation. Learned defence SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 27 of 66 28 counsel has pressed that the Investigation Officer has not disclosed the name of the public persons, to whom he had asked to join during the course of investigation. It is a natural phenomena while Investigation Officer asking to different persons to join the investigation, they had been afraid and also have hitch to disclose their names, parentage to avoid any legal complication. The statements of recovery witnesses do inspire the confidence and reliance can be placed on them. It is a matter of record that no public witness was being cited in the list of witnesses as despite efforts made by Investigating officer, none of the public witness has been joined.
20. So far as the contention raised by the counsel the accused persons for non-joining of the public witnesses during the course of investigation, it is revealed from the deposition of the prosecution witnesses that each and every moment, the police officials have made all sincere efforts to join the public witnesses. However, despite their being best efforts made, none of the public witnesses have joined the investigation. In the absence of public witness it cannot be ruled out that the recovery of contraband substance of 126 Kg. Ganja from the possession of the accused persons. Since the testimony of the witnesses, who had apprehended the accused persons as well as seized all the Ganja from the cavity of the truck. It is a settled position of law that even SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 28 of 66 29 if a witness is declared hostile and cross-examined by the Public Prosecutor, still his statement so far as it supports the prosecution case, can be read in the evidence and the statement cannot be washed of the record. The police officials have deposed about the proceeding conducted at the spot.
21. In the case of Tahir vs. State (Delhi) (1996) 3 SCC 338, it was observed;
"Where the evidence of the police officials, after careful scrutiny inspire confidence is found to be trustworthy and reliable, it can form basis of conviction and the absence of independent witness of the locality to lend corroboration to their evidence, does not in anyway affect the creditworthiness of the prosecution case."
22. In a case Baldev Singh vs. State of Haryana 2015 SCC on line SC 1138, the Hon'ble Supreme Court has observed;
"There is no legal proposition that evidence of police officials unless support by independent evidence, is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and entrusted in the investigation and their desire to see the success of the case. Prudence, however, requires that the evidence of police officials, who are interested in outcome of the result of case, needs to be carefully scrutinized and independently appreciated."
23. There is no rule, particularly of law that the statements SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 29 of 66 30 of officials witnesses can be accepted only, if they are supported by an independent witness. There is no legal requirement of a corroboration from an independent witness to the statements of the official witnesses before they are accepted.
24. Thus, non-joining public witness at the time of recovery or drawing of the proceedings by itself cannot be taken as a ground to disbelieve the statement of recovery witnesses mentioned above simply because of their official status. There is no allegation of animosity or prejudice against the witnesses. The accused have pleaded false implication in the case, but no logical and reasonable ground has been shown why they would be implicated falsely by the police officials in the present case. Time and again repeatedly requested the public witnesses to join the raiding party in investigation, but they refused to join the police party. When the time constrained, the police had devoted and utilized the maximum time effectively in conducting the proceedings, as such found no reason to disbelieve the police officials when they recovered Ganja from the truck which was in possession and control of accused persons. No one can presume and assume that the police officials made concocted story that the accused persons were carrying narcotic substance in indigenous manner, who were concealing the same in the truck carried by them. The contraband was recovered and produced in the Court which had been identified SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 30 of 66 31 by all the witnesses. Therefore, there is no dent in the prosecution case with regard to the recovery of contraband substance from the possession of accused persons cannot create the doubt upon the recovery of the narcotic substance from the truck which is owned and purchased by the co-accused Bhuwaneshwar Pradhan, who was absconding away from facing the trial and declared as proclaimed Offender. In absence of non-joining of the public witnesses. In case Chand Singh vs. Narcotics Control Bureau 2016 (1) JCC (Narcotics), it has been observed that "69. I find merit in the submission of the learned SPP that it must be shown by the defense that there was deliberate endeavour to keep the independent witness away from the cross-examination. Perusal of the record reveals that adequate steps were taken by the Trial Court as well as the investigating agency to bring Nafe Singh, it is evident from the record that summons were issued on 06.03.2010, 23.03.2009, 25.04.2007 and vide orders dated 25.04.2007, 17.12.2017 and 20.02.2009. In State of Haryana v. Mai Ram, 2008 (3) JCC [Narcotics] 188 : (2008) 8 SCC 292; it was observed that the ultimate question to be asked is, whether the evidence of the official witness suffers from any infirmity. It was further observed that the prosecution's case cannot be held to be vulnerable for non-examination of persons who were not official witnesses. The lacuna in the present case is not material in nature, and cannot be said to have caused prejudice to the appellants. In such cases, if the statements of official witnesses corroborate the SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 31 of 66 32 proceedings conducted, the case of the prosecution cannot be disbelieved. This position was reaffirmed by the Supreme Court in M. Prabhulal v. The Assistant Director, DRI, AIR 2003 SC 4311 and in Ram Swaroop v. State, 2013 (3) JCC (Narcotics) 129 :
AIR 2013 SC 2068. The appellants - in their statements recorded under Section 313 Cr.P.C., had stated that they have been falsely implicated. However, the appellants failed to show that there was any motivation for their false implication with such a huge quantity of charas. It is also not established through any evidence that the NCB officers had any enmity against the appellants.
25. The Supreme Court in State, Govt. of NCT of Delhi v.
Sunil and Another, (2001) 1 SCC 652, held that :
".....Hence, when a police officer gives evidence in court that a certain article 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 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 station as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 32 of 66 33 persons in the documents made contemporaneous with such actions."
26. The next contention raised by the counsel for the accused persons is that the reply of notice under Section 50 of NDPS Act was written by PW10 SI Rakesh Sharma, Investigating Officer (IO). Since PW10 SI Rakesh Sharma stated that he did not ask the public witnesses or the accused persons to write the reply of the notices under Section 50 of NDPS Act. It is not denied that the notices under Section 50 of NDPS Act have not been served upon the accused persons, though it was a matter of fact that the recovery had been effected from the truck and not from the persons of accused. As such compliance of Section 50 of NDPS Act was not mandatory, which has not been complied with by its spirit and as per the mandate. There is no such law or provision that the reply of the notice cannot be written by the Investigating Officer or any police official or that the same is required by any independent/ public witness.
27. The issue arose from the submissions of learned defence counsel as to whether there is any manipulation in the service of notice under Section 50 of NDPS Act and secondly whether the service of notice under Section 50 of NDPS Act is mandatorily required or not. The carbon copies of the notices under Section 50 of NDPS Act were served upon the accused persons and replies of the notices were written in Hindi on their SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 33 of 66 34 dictation. The notices under Section 50 of NDPS Act were recovered from the possession of the accused persons. PW6 HC Yatender Malik in his examination has stated that from the personal search of the accused Prashant original copy of the notice under Section 50 of NDPS Act and some raxine purse along with documents were recovered. In the personal search of accused Pramod Pradhan, the original copy of notice etc. were recovered. Personal search memos were prepared to this effect. Similar is the deposition with respect to the accused Prashant Kumar. The carbon copy of the notice under Section 50 of NDPS Act of accused Pramod Kumar is Ex. PW6/A and reply thereof is Ex. PW6/B and the carbon copy of the notice of Prashant is Ex. PW6/C and reply thereof is Ex. PW6/D. Both the accused persons signed on the notice in English as both the accused persons had disclosed that they knew Hindi, however, they could not write the same. As such PW10 SI Rakesh Sharma has written the reply on the notices under Section 50 of NDPS Act as per their version. PW10 SI Rakesh Sharma while corroborating the statements of other prosecution witnesses on account of notice under Section 50 of NDPS Act and its reply has also corroborated with notice under Section 50 of NDPS Act was prepared and copy of the same was handed over to him and reply on the carbon copy as per their version was recorded and accused persons had signed in English on the said notice on SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 34 of 66 35 their reply. It has been adequately corroborated in their examination that notice under Section 50 of NDPS Act had been served upon the accused persons. He did not ask any public persons to write reply of notice under Section 50 of NDPS Act.
28. There is no dispute regarding the preposition of law as laid down by the Hon'ble Supreme Court in case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat AIR 2011 SC 77 and also in subsequent cases titled as Narcotics Control Bureau vs Sukhdev Raj Singh Sodhi AIR 2011 SC 1939 and State of Delhi vs. Ram Avtar AIR 2011 SC 2699 that the compliance of the provisions of Section 50 of the NDPS Act is mandatory and the theory of 'substantial compliance', as developed in some earlier judgements of the Hon'ble Supreme Court will not be acceptable. However, the same is good law only when the search of the 'person' of an accused is involved and the provisions of Section 50 of the NDPS Act have no application when the recovery of the contraband substance is to be effected not from the 'person' of an accused but from a briefcase, suitcase, bag or thaila etc. being carried by the accused. Reference in this regard can be made to the judgements of the Hon'ble Supreme Court in cases of State of H.P. 2003 Crl.L.J. 3868 and Ajmer Singh vs. State of Haryana 2010 (2) SCR 785 (Crl. Appeal No. 436/09). The prepositions of law laid down in these cases have not been over ruled or SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 35 of 66 36 modified in the judgements of the Hon'ble Supreme court being relied upon by the Ld. Defence counsel. Coming to the facts of the present case, since the recovery of the narcotic substance is not from the person of accused, it was recovered from the truck, as such provisions of Section 50 of NDPS Act are held to be not applicable in the present case. So far as the learned defence counsel Sh. Anoop Kumar Gupta has taken the plea that there is no cavity, has shown no photograph or being placed on record and document with respect to the truck in question. However, the presence of truck in question has not disputed. While the same was released on superdari, its photographs have been placed on record. The said photographs have not been taken from all the angles as to be show the cavity, which was adjacent to the driver seat. From the reply of the accused persons given on the notice under Section 50 of NDPS Act, nowhere shows that the accused had refused to exercise the option regarding the conducting of their search before a Gazetted Officer or a Magistrate. It was held that no Gazetted Officer is or was required to be a part of the raiding team under any provision of the NDPS Act or the rules framed thereunder. The reply of the accused person given on the notices under Section 50 of NDPS Act clearly shows that after understanding the contents of the notices, the accused persons had offered their search as well as the search of truck to any police SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 36 of 66 37 official and that necessarily means that the accused persons had refused for their search to be conducted in presence of a Gazetted Officer or Magistrate as was offered to them in terms of the notice under Section 50 of NDPS Act. Moreover, since the above notices under Section 50 of NDPS Act were not legally required to be served upon the accused persons in the instant case, the above submissions being made by learned defence counsel, are not of any help of their case.
29. The next contention raised by the learned defence counsel is that the evidence led by the prosecution on record regarding the recovery of the contraband substance from the truck occupied by the accused persons is highly doubtful as the evidence nowhere suggests as to from where and how the contraband substance was supplied and handed over by the accused persons to the Investigating Officer SI Rakesh Sharma (PW10) when the personal search of the accused had already been conducted and accused Pramod Kmar Pradhan and Prashant Kumar Pradhan have also made disclosure statements vide Ex. PW6/J and Ex. PW6/K respectively whereby stated that they are doing the business of supply of Ganja. There is no defence made that the statements of the accused persons were recorded by the police under coercion or pressure. It has not been argued that the disclosure statements of accused persons were retracted statements nor any subsequent SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 37 of 66 38 application was filed thereof as alleging that they retracted the above statements and the same cannot be considered as incriminating substance against the accused persons and cannot be believed and acted upon.
30. The legal position with regard to a statement made by the accused persons under Section 67 of NDPS Act of NDPS Act such a statement is admissible in evidence and can be acted upon, if the same found to be voluntary. Earlier the view of the higher courts had been that if such statements of accused persons are found to be voluntary then the same can be made the sole basis of conviction of the accused, but if the same is not voluntary then the same is only a waste paper. To find out if such a statement of accused is voluntary or not, the Court has to see and examine the circumstances under which the same was made. In case of M. Prabhu Dayal vs. The Assistant Director, DRI 2003 (Suppl. 2) SCC 459 it was held by the Hon'ble Supreme Court that even if such a statement is subsequently retracted by the accused, the same should be believed and acted upon by the Court, if found to be made voluntarily, unless the retraction statement of the accused is proved on record as per the Evidence Act.
31. However, the view which has subsequently developed is that the Court must look for some independent corroboration and conviction should not be based solely on a statement under section SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 38 of 66 39 67 of NDPS Act of the accused persons and that too when the same has already been retracted. Reference in this regard can be made to the judgements in the cases of Noor Agah vs. State of Punjab & Anr. 2008 (3) JCC (Narcotics) 135, Union of Inida vs. Bal Mukund & Ors. 2009 (2) Crimes 171 (SC) and NCB vs. Aziz Ahmed 2010 (1) JCC (Narcotics) 6 etc.
32. In the instant case, the accused persons were apprehended with the contraband substance on 21.05.2013 at 2:50 pm. The police found in possession of accused persons, three kattas, each containing transparent 42 polythene packets, totalling 126 packets of Ganja in truck no. OR 19L 4569, which were concealed in polythene bags made in between cabin of driver of above truck in the open space behind it. Both the accused persons were got medically examined and their MLCs were prepared. There was no mark of injury or fresh injuries on their persons. Therefore, from the documents placed on record as well as the testimony of the prosecution witnesses including defence witness, there is no such averments made when the statements of the witnesses were recorded under coercion, pressure or undue influence or by beating them. It is admitted during the statements recorded under Section 313 Cr.PC by the accused persons that they were apprehended along with other associates namely Sunit Kumar Sahu, Bhuvneshwar Kumar Pradhan on 20.05.2013 at about 5 am from SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 39 of 66 40 Kosikalan, Mathura while they were sleeping on the footpath and were brought to the Police Station-Badarpur. Next day in the morning the police left off Sh. Sujit Kumar Sahu and Sh. Bhuvneshwar Kumar Pradhan, who were not summoned to appear in the witness box, nor the accused persons produced them as defence witnesses.
33. The next contention of the learned defence counsel is that the accused persons were having mobile phones, but none of the mobile phone has been shown to be seized by the police officials during the investigation, so as to prove the location of the Investigation officer as well as the accused persons at Kosikalan, Mathura. In absence of any cogent, oral or documentary evidence, the submission does not have any substance. Though learned defence counsel examined DW2 Sh. Surender Kumar, Nodal officer, Bharti Airtel, who brought the summoned record pertaining to mobile nos. 9937648637 and 9777120506 along with CAF, CDR and Tower Location Chart along with covering letter vide Ex. DW2/A running in 13 pages. Mobile no. 9937648637 is in the name of Sh. Dinabandhu Pradhan, son of Sh. Bhagirathi Pradhan, resident of Antulia, P.O. Tapdhol, PS- Puranakot, District-Angul, Odisha. The mobile no. 9777120506 is in the name of Basant Pradhan, son of Sh. Raghunatha Pradhan, Resident of Village-Saradhamunda, PO- Nunakapasi, PS-Handapa, District-Angul, Orissa. The accused SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 40 of 66 41 persons neither their statements recorded under section 161 Cr.PC nor in any manner or have deposed under Section 315 Cr.PC that as to how they were in possession of these mobile phones and what are the relations with the above named persons and whose the SIM cards are. Even from the mobile phones, they did not put location chart of towers as alleged. The defence did not discharge the mobile number of the Investigating Officer or any other police official.
34. The next contention raised by the learned defence counsel is that there are contradictions and inconsistencies in the statements of police officials. They have made contradictory statements with respect to the arrival and departure, joining of public witnesses, registration of FIR and seizing of case property. Neither the log book of the police vehicle was produced, nor the vehicle number bas been given in the statements of police witnesses.
35. It is further submitted by the learned defence counsel that the police witnesses were unable to cite the logbook which was being used for conveyance purpose and there are some major contradictions with regard to the sealing of the case property as well as the case property being taken to FSL, deposited in Malkhana and further there is no cogent response as to intact of regarding the case property as well as compliance of the necessary SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 41 of 66 42 and mandatory provisions. Though the statement to this effect is consistent in absence of any logbook and vehicle number. The statement of the witnesses cannot be brushed aside and cannot be ruled out the recovery of the substance from the truck. The prosecution witnesses have corroborated regarding the arrival of the truck and recovery there from. Hence, it was a chance recovery and the same has been admitted by the accused persons in their disclosure statement. The necessary compliance of Section 42, 50, 54, 57 of NDPS Act etc. has been complied with. There is no reason to disbelieve the statements of the police officials with regard to the recovery of 126 Kg. of Ganja from the truck. The pleas of the accused persons as regard totheir apprehension from Kosikalan, Mathura is not substantiated with any ocular evidence. There is nothing which has been proved from the defence witnesses as to the false implication or to be lifted from the place other than as being mentioned.
36. The Investigating Officer (PW10) SI Rakesh Sharma, who has also duly proved on record that there is no violation of any mandatory provision of NDPS Act. It is not denied that the accused persons have been falsely implicated in the present case or that the prosecution has planted the contraband substance upon the accused persons. The defence plea as alleged is not tenable in absence of any corroborating evidence to be substantiate the SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 42 of 66 43 same.
37. The next contention raised by the learned defence counsel is that the FIR has not been proved and there is a delay in sending the sample and there is a defective investigation. So far as the FIR is produced, copy of it does not annexed with the certification under section 65B of Indian Evidence Act. So far as the FIR is proved, the same is print out of computer and no certificate under section 65B of Indian Evidence Act is proved. Since, it is a computerized FIR, there is no requirement of certificate u/s 65 B of Indian Evidence Act. In the case Anwar P.V. vs. P.K. Basheer & Ors. Civil Appeal No. 4226/2012 decided on 18 th September 2014 wherein it was observed with regard to Section 65B of Indian Evidence Act that an electronic record by way of secondary evidence shall not be admitted in the evidence unless the requirements under section 65B of Indian Evidence Act are satisfied. Thus, in the case of CD, VCD, Chip etc. the same shall be accompanied by a certificate in terms of Section 65B of Evidence Act obtained at the time of taking the documents.
38. Considering the submission of the learned defence counsels on this issue, the electronic record is vulnerable to manipulation, therefore, its veracity and reliability is always cause of concern. Therefore, Section 65-B of Evidence Act,1832 was incorporated and it was mandatory to submit a certificate under SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 43 of 66 44 Section 65B of Indian Evidence Act for admissibility of electronic record as secondary evidence. In the case where the computer has been utilized only as a tool as a typewriter for converting the text from one form to other such as a letter, then software of the computer does not have much role to play and the only function the computer plays is that of a typewriter. For example in case of registration of FIR, the writer of the FIR on the computer types the contents of the FIR, take out a print of the said documents/FIR verifying the text which has been generated and authenticate the same by putting signature. The typing and taking out the print of the FIR simultaneously diminish the role of computer as a mechanical device nor the computer is used in such a situation for storage of any data which is reproduced later on. Typing of an FIR, taking out its print and signing of the text by the concerned person simultaneously is equivalent to typing a letter on a typewriter. Therefore, in such a case, in my considered view, there is no requirement of any certificate under section 65B of Indian Evidence Act with regard to an FIR which is a computerized print out. FIR has been signed by Duty Officer, who identified her signatures on the same. Therefore, n these circumstances and discussion, the contention of Learned defence counsel does not hold any water.
39. The next contention raised by the learned defence counsel is that as per the seizure memo the sample was one Kg. SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 44 of 66 45 each from the three Kattas, as such the kattas were being opened and 42 packets each were found. After taking three samples from each katta, the remaining substance along with these polythene packets, the same was being sealed and prepared pullinda with white cloth. All the three samples were given mark AS-1, BS-1 and CS-1 and sealed with the seal of RS. FSL form was filled up alongwith the sample seal of RS. Seal after use was handed over to Ct. Mahesh Kumar. The remaining case property of 41 packets in each katta was given serial A, B and C. The description of exhibits contained in the parcel was that parcel AS1 was containing 1 Kg 100 grams (approx), parcel BS-1 was containing 1Kg 150 gms and the parcel CS-1 was containing 1Kg 150 gms. All the parcels gave positive test of presence of Ganja. The said report is admissible under section 293 Cr.PC.
40. The next contention of learned defence counsel Sh. Anoop Kumar Gupta is that the sample and the case property was not sent within the minimum period. There was a delay in sending the case property to the FSL and no reason has been assigned to send the parcel alongwith FSL from after one month. This fact has been admitted by the PW11 SI Bijender Singh. In his cross- examination, whereas he stated that he has not given any reason as to why he sent parcels along with FSL form after one month. There was no written order regarding sending of parcel through Ct. SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 45 of 66 46 Kailash. He could not tell at what time Ct. Kailash took parcels and FSL form to CFSL. He did not remember whether he was present when parcels were handed over to Ct. Kailash. He did not remember when Ct. Kailash had handed over the copy of RC and acknowledgment upon it to MHC(M). He did not remember whether at the time of receiving parcels by Ct. Kailash from MHC(M), if it was mentioned that he received parcels in intact condition on register no. 19 on RC. It is being denied that he had never given directions to Ct. Kailash to take parcels with FSL from to CFSL or that the parcels were not in intact condition. PW11 SI Bijjender Singh in his examination-in-chief testified that on 24.06.2013, sample parcels alongwith the form FSL was handed over to Ct. Kailash to deposit the same with the CFSL, Lodhi Road, who deposited the same and handed over the acknowledgement receipt of CFSL alongwith copy of RC to MHC(M). He recorded statement of Ct. Kailash MHC(M) and SHO under section 161 Cr.PC. During the course of investigation, he had prepared a report under section 57 of NDPS Act, which was duly forwarded by the SHO to the ACP concerned vide Ex. PW4/A. PW2 Ct. Kailash in his examination-in-chief has categorically stated that on 24.06.2013, on the direction of ASI Bijender Singh (PW11), had taken three sealed sample parcels of this case alongwith the CFSL form the MHC(M) to CFSL, Lodhi Colony, which were sealed with the seal of RS and AKV in intact condition vide road certificate no. SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 46 of 66 47 90/12/13. After depositing of the parcels and CFSL form in CFSL Lodhi Colony, he had handed over the acknowledgement as issued by the official of CFSL to the MHC(M) on his return to the PS, alongwith a copy of road certificate Mark PW2/1. So long as the parcels remained in his possession, the same were not tampered by anybody. Even in his cross-examination it is denied that he had deposed falsely on this account. So far as the sending the parcel to the CFSL afrter one month delay, it is a matter of record that no explanation had been given by the IO to this effect. Further, it is also a fact that the parcels remained in intact condition. There was no tampering in the parcels and the seal thereupon. The CFSL report has confirmed that the samples were containing Ganja. The individual sample was taken from each of the Kattas. There is a little bit discrepancy since sending the sample sent to CFSL at time of taking the samples, it was being approximate weighing for 1 Kg. each while in the FSL, it was weighed more than one Kg. There may be some chemical reaction in lab at the time of experiment and examination, the weight of the sample may be increased. FSL report has confirmed that sample sent contain ganja but since, individual samples were taken from each plastic katta. Whereas, it is admitted that there are like bit discrepancies with regard to the weight of the sample sent to the FSL and the site plan in which Mark A has not been shown by the IO/SI Rakesh Kumar. In a recent SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 47 of 66 48 case of "Lavlesh Kumar vs State Crl. Appeal No. 344/2011 decided on 06.10.2015" where there was some discrepancy with regard to the weight of the sample sent to the FSL, Hon'ble High Court gave the benefit of doubt to the accused and observed that "possession of 'ganja' could be less than a commercial quantity", and conviction was converted to possession of intermediate quantity. The defence counsel did not ask to summon the Chemical Examiner nor any question to this effect has been asked to this extent. Defence counsel has not moved any application to recall any matter for clarification to this effect. Hence, the report of Chemical Examiner is admissible under Section 293 Cr.PC.
41. The quantity of Ganja recovered from the truck was around 126 Kg as there were 42 Kg. weight in each katta/bag and each bag was containing 1 Kg. Packets of Ganja. The truck was in possession of both the accused persons along with the co-accused Bhuvneshwar Kumar, who ws declared proclaimed offender vide order dated 17.12.2014. It was a joint possession, as such it cannot be separated and separate possession can be shown. The recovered contraband substance i.e. Ganja is more than intermediate quantity, as such coming under the commercial quantity. 100 gms. of Ganja comes under the small quantity and 20 Kg and above would be a commercial quantity. It is an evidence on record to establish the fact that the recovery of Ganja from the SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 48 of 66 49 plastic Katta/bag concealed in the cavity of the truck without any permission or license and in contravention of Section 8 (c) of NDPS Act.
42. Learned defence counsel Sh. Anoop Kumar Gupta has also stressed that the investigation is not fair as the prosecution has been falsified by the documentary evidence produced by the prosecution itself. There is no document placed on record regarding permanent picket for stopping snatching. There is no public person joined raid from very beginning in investigation. There is no registration number of Bolero car or its model, which is not mentioned in the DD No. 17 while leaving the police station. The entire proceeding was not videographed. Even the police officials have mobile phones. The cavity as alleged, has not been shown in the photographs placed on the judicial file. There was additional impression of seal appeared on the Katta, while the same had been produced during the examination of PW6 HC Yatender Malik. No handing over memos of case property was prepared. No memo was taken regarding taking over from Ct. Kailash after 2-3 days. PW5 Sh. S.K. Goswami (then ACP) had stated that he had not given direction to the IO/SHO. It is also argued that the prosecution has failed to nab the recipient of the contraband substance and collect the CDR of mobile phones of the accused persons.
SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 49 of 66 50
43. So far as the question raised by the counsel for the accused persons that there is no mentioning of Bolero car number and its make. The defence counsel denied the recovery of huge quantity of Ganja in truck. One Sh. Arup Sambed Patanayak, the owner of the truck no. OR 19L 4569 stated that he had purchased the truck from L& T Finance in the year 2011. He was unable to manage the said truck and unable to pay its installments. That is why he sold the truck to one Sh. Bhuvwaneshwar Pradhan on 16.02.2013. An agreement to sell of truck was executed between him and Bhuvaneshwar Pradhan, which was registered by Notary Angul, Orissa. He handed over all the documents regarding the said truck including RC, Insurance and permit etc. Bhuvaneshwar Pradhan was in possession of the said truck and he used the same and all the responsibilities and liabilities remained with him from 16.02.13. Though the truck was registered in the name of Sh. Arup Sambed Pattanayak and the same was finally identified. The truck was to be transferred in the name of Bhuwaneshwar Pradhan after closing the instalments with the the financing company. The disclosure statement of accused Ex. PW6/J and Ex. PW6/K was recorded, who had made in their disclosure statement for using the said truck for the purpose of supply of Ganja. The accused were being interrogated in police remand, who also admitted. The accused Pramod Pradhan was taken to his native place in SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 50 of 66 51 pursuance to the police remand. However, the police has made sincere efforts to locate the main source and the recipient, but unable to locate its desperate police remand. While apprehending the accused persons along with the truck, only these two accused persons were apprehended who were present in the truck. Besides these two persons, nobody was present in the truck. This fact was informed to the then SHO of PS-Mehrauli. The warrant has been taken for the accused Bhuwaneshwar Pradhan, though the prosecution could not be executed as the said accused flee away from facing the trial. The defence counsel has taken the plea that as to why the public witnesses have not been joined in the investigation. Though it has been categorically stated that so many prosecution witnesses were present, however, the public persons had been reluctant to join the proceedings. There is no question as to write reply by the public persons, though it was recorded by the PW10 SI Rakesh Sharma in his own hand writing under the dictations and signatures of the accused persons. So far as it is pointed out regarding the mobile phone of the accused persons, there is no such record with the police official that the accused persons had kept any mobile phones at the time of their apprehension. Though the call details of the mobile phones as well as documents with respect to this effect was separately filed, but is revealed that the SIM card was not in name of the accused SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 51 of 66 52 persons. The defence counsel has also not brought any witness whose name the mobile phones having SIM Cards were and what was the relation of accused persons with them and why the said mobile phones were used by them. The contention raised by the defence counsel is neither found plausible nor having any substance in absence of any cogent evidence. The investigation has been carried by the police officials very sincerely and dedication without any dent therein.
44. It is further argued that once the investigation is found to be biased and tainted, the whole prosecution case open to serious doubts and found lacunae and it is the cardinal principle of criminal jurisprudence that the prosecution has to travel its entire distance from may be true to, must be true. It is not the mere suspicion on the basis of which the accused can be convicted. Reference is made in Balwant Singh vs State of Delhi 1994 SCC (Crl), page no. 734 in case titled as State of A. P. vs Punati Ramulu and ors. Paragraph 5 and 2009 (3) JCC (Narcotics) 128, Sehdev vs State of Delhi paragraph 13.
45. The fundamental principle with regard to such contradictions etc., is that if these contradictions, embellishments and discrepancies go to the root of the case, then definitely they have negative impact on the prosecution case. But if they do not hit at the root of the prosecution case, then they can be ignored. It SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 52 of 66 53 would depend upon the facts of each case, whether contradictions noted were hitting the roots of the prosecution case or not. I am fortified in this view by the Judgment in the case of Raju vs State, Criminal Appeal no. 1221/2012, decided on 11.10.2013;
"It is no longer res-integra that while appreciating the evidence, the Court has to take into consideration whether the contradictions, omissions, improvements, embellishments, etc. had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, omissions or improvements on trivial matters without affecting the case of the prosecution, should not be made a ground for the Court to reject the evidence in its entirety.
The Court, after going through the entire
evidence must form an opinion about the
credibility of the witnesses. Otherwise also, in all criminal cases, normal discrepancies are bound to occur in the depositions of the witnesses due to normal errors of observation, namely, error of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence."
SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 53 of 66 54
46. In Leela Ram vs State of Haryana (1999) 9 SCC 525, it was held by the Supreme Court that "there are bound to be discrepancies between the narration of various witnesses when they speak about details and unless the contradiction is material, it should not be used to jettison the evidence in its entirety."
47. In the case of Sunil Kumar Sambhudayal Gupta (Dr.) vs State of Maharashtra (2010) 13 SCC 657, the Supreme Court summarized the law on material contradictions in evidence thus:
"30. While appreciating the evidence, the Court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety."
48. So far as the nature of contraband, the FSL report and recovery of contraband as well as testimonies of the prosecution witnesses are ocular one. The opinion as described in the FSL report is deemed to be proved u/s 293 Cr. PC and there is no rebuttal in this regard.
49. The contradictions as stated in the examination of SI SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 54 of 66 55 Rajnish (PW-8) regarding the leaves, seeds and dandi, it has been apparent from the record that the FSL report defines the entry of the case property received in intact and sealed condition as flowering and fruiting material. Therefore, the contention raised by Learned defence counsel in respect to the tampering of case property does not substantiate the contradiction in the testimony of prosecution witnesses seems to be minor one, which does inspire confidence and trustworthiness. The contradictions in the statement of prosecution witnesses is not material. There is no inherent contradiction in the statement of the recovery witnesses.
50. In Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746, it was contended that the evidence of the official witness cannot be relied upon as their testimony had not been corroborated by any independent witness. The Hon‟ble Supreme Court, rejecting the contention, held as under:
"16. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 55 of 66 56 acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
51. Rejecting a similar contention in Kashmiri Lal Vs. State of Haryana (2013) 6 SCC 595, the Hon'ble Supreme Court inter-alia observed as under:
"9. ....it is vincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 56 of 66 57 absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion.
Ordinarily, the public at large show their
disinclination to come forward to become
witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. vs. Anil Singh 1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil and another (2001) 1 SCC 652 and Ramjee Rai and others v. State of Bihar (2006) 13 SCC
229."
52. Dealing with a similar contention in "Ram Swaroop Vs. State (Govt. NCT) of Delhi 2013 (7) SCALE 407, where the SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 57 of 66 58 alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court interalia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect"
53. So far as the non-joining of a public witness is concerned, there is no doubt that if public witnesses join the raiding team, it lends credence to statement of official witnesses. Absence of a public witness, at the most, can put the Court on guard but as a rule of law, it cannot be said that if there is no public witness, the official witness cannot be believed. In view of proposition of law, statements of SI Rajnish (PW-8), HC Sudhir Kumar (PW-3) and HC Prem Pal (PW-6) , who are chance witnesses have deposed categorically about apprehension of the accused persons alongwith contraband as well as necessary compliance of the provisions of NDPS Act. Non-joining of the public witness will not hamper the case of prosecution in any manner in terms of Judgments cited in the preceding paragraphs.
54. In the case of Chand Singh vs NCB (supra), it was observed that, "69. I find merit in the submission of the learned SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 58 of 66 59 SPP that it must be shown by the defence that there was a deliberate endeavour to keep the independent witness away from the cross-
examination. Perusal the record reveals that adequate steps were taken by the trial Court as well as the investigating agency to bring Nafe Singh, it is evident from the record that summons were issued on 06.03.2010, 23.03.2009, 25.04.2007 and vide orders dated 25.04.2007 17.12.2007 and 20.02.2008. In State of Haryana vs Mai Ram 2008 (3) JCC (Narcotics) 188: (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witness suffers from any infirmity. It was further observed that the prosecution's case cannot be held to vulnerable for non-examination of persons who were not official witnesses. The lacuna in the present is not material in nature, and cannot be said to have caused prejudice to the appellants. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution cannot be disbelieved. This position was reaffirmed by the Supreme Court in M. Prabhulal vs the Assistant Director, DRI AIR 2003 SC 4311 and in Ram Swaroop vs State 2013 (3) Jcc (Narcotics) 129:
AIR 2013 SC 2068. The appellants- in their statements recorded under Section 313 Cr.PC had stated that they have been falsely implicated.
However, the appellants failed to show that there was any motivation for their false implication with such a huge quantity of charas. It is also not SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 59 of 66 60 established through any evidence that NCB officers had any enmity against the appellants. The Supreme Court in State, Govt. of NCT of Delhi vs Sunil and Another (2001) 1 SCC 652 held that :
...... Hence, when a police officer gives evidence in court that a certain article 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 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."
55. Therefore, in view of the settled proposition of law and judgement as cited above statement of police officials cited as natural and their depositions cannot be disbelieved just because they are official witnesses and there is no public witness in the case.
SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 60 of 66 61
56. Section 41of NDPS Act deals with the powers to issue a warrant and authorization for search of any building or conveyance etc., for recovery of such contraband substances.
Under sub-section (1) of Section 41 of the above said Act, a Magistrate of a given class has been empowered to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence under the Act or a warrant for the search of any building, conveyance or a place etc, whether by day or by night, in which he has reason to believe that any narcotic drug or psychotropic substance etc, in respect of which an offence punishable under the above Act has been committed, or any document or article etc., which may furnish evidence of the commission of such offence, is kept or concealed. Under sub- section (2) of Section 41 of the said Act, a Gazetted Officer of some govt. departments, as may be empowered in this behalf by a general or special order issued by the State or Central Government, has been empowered to issue an authorization for arrest of such a person or the search of such a building or conveyance etc. if he has reason to believe, from his personal knowledge or information given by any person and taken down in writing, that any person has committed such an offence or any such narcotic drug or psychotropic substance etc is lying concealed in such a building or conveyance etc and as per this sub-section SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 61 of 66 62 the above authorization has to be made to any officer subordinate to him, but superior in rank to a peon, sepoy or constable etc. In terms of sub-section (3) of the above Section, the officer who issues such warrant or authorization and the officer to whom the same is issued shall both have all the powers of an officer acting U/S 42 of the said Act.
57. Section 42 of the NDPS Act deals with the powers of entry, search, seizure and arrest etc without a warrant or authorization and sub-section (1) thereof provides that if an empowered officer of a given rank, i.e. above the rank of peon, sepoy or constable etc, of the departments as stated above, has reason to believe from his personal knowledge or information given by any person and taken down in writing, that any such narcotic drug or psychotropic substance etc is being transported or concealed in any building or conveyance etc then he can enter into and search such building, conveyance or place etc and seize such drug or substance and he can also detain, search and also arrest, if he thinks proper, any person whom he has reason to believe to have committed an offence punishable under the Act. However, the above power of search, seizure and arrest can be exercised by him before sunset and after sunrise only and for effecting the search or seizure etc between the sunset and sunrise, a search warrant or authorization, as mentioned in Section 41 of the NDPS SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 62 of 66 63 Act, is required by him in his favour. However, if such officer has reasons to believe that a search warrant or authorization cannot be obtained without affording an opportunity for the concealment of evidence or facility for the escape of an offender then in such an urgency he can even effect such search, seizure and arrest etc between sunset and sunrise, provided that he record the grounds of his above belief for doing the same. As per sub-section (2) of Section 42 NDPS Act, a copy of the above information or the grounds of belief taken down in writing by such an officer has to be sent by him to his immediate superior official within 72 hours. Under both the above Sections 41 and 42 of the NDPS Act, if the source of the information is not the personal knowledge of the person receiving it, then the same is required to be reduced into writing.
58. It is settled position of law that compliance of provision of Section 42 of NDPS Act is mandatory. In the case of "Kishan Chand vs State of Haryana 2013 (I) AD (SC) 39", Hon'ble Supreme Court has categorically observed that provisions like Section 42 and 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. Once there is total non-compliance and these provisions being mandatory in nature, the prosecution case must fail.
SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 63 of 66 64
59. It is clear from the above section 41 and 42 of the NDPS Act that if the source of information is not the personal knowledge of the persons receiving it then the same is required to be reduced into writing. Section 41 (2) of NDPS Act speaks about a Gazetted officer of the department mentioned therein who receives the information. Section 42 (1) of NDPS Act is applicable when the information is received by an empowered officer other that a Gazetted Officer as mentioned in section 41 (2) of NDPS Act. The requirement of a search authorization by an empowered officer who receives an information under section 42(1) of NDPS Act would arise only when search is to be conducted after Sunset and before Sunrise and that too in any building, conveyance or place.
60. Since the accused have been apprehended in an open place during the day time between Sunrise and Sunset, there was no mandatory requirement of any authorization from a Gazetted officer. So there is no deficiency in the compliance of section 42 (1) of NDPS Act.
61. In the instant case, it is not the case of prosecution that they received a secret information and the raiding team was constituted. In the present case, accused persons were surprisingly apprehended alongwith contraband and at that point of time, matter was proceeded. After conclusion of seizure of articles and arrest of the accused, they were produced before Learned SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 64 of 66 65 Metropolitan Magistrate.
62. I have considered the submissions of Learned counsel for accused persons on the issues as raised. So far as the Call Details Record is concerned, since mobile phone SIM card details produced by defence counsel, is not in the name of accused persons. The Call Details Record does not connect as there is no such disclosure statement. Though, the accused persons in their disclosure statements have stated that they had come to the spot to sell the contraband to some other person. It does not appeal that the police officials would have suddenly met to the accused persons while on patrolling duty and had apprehended along with contraband. Accused has not been able to prove any enmity with police officials, who has deposed before the Court, though they have not made any complaint against police officials but details of the complaint has not been explained nor any ocular evidence has been given to this effect. There is no allegation of prejudice against particular police officials, who have deposed before the Court. Accused has also not claimed any enmity against police officials who have deposed against them. The statement of these witnesses are corroborated, consistent and trustworthy with each other with regard to the recovery, weight and seizure etc. and fair in nature.
63. There is no evidence brought on record in what manner investigation has been biased and tainted. Though, on the SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 65 of 66 66 contrary, prosecution has examined Eleven witnesses in order to bring the guilt of the accused within the four corner of the charges levelled against them. Thus, the evidence on record sufficient to prove the recovery of ganja from the kattas concealed in a cavity made in the truck without any permission or licence and in contravention of Section 8 (c) of the Act.
64. In view of aforesaid discussion and judgement cited, this Court has come to the conclusion that prosecution has proved its case against accused Pramod Kumar Pradhan and Prashant Kumar Pradhan for commission of an offence punishable u/s 20 (b) (ii) (c) of the Act for possessing 'ganja' (Cannabis) without any permission or licence and in contravention of Section 8
(c) of the Act. Accordingly, accused Pramod Kumar Pradhan and Prashant Kumar Pradhan are held guilty for the offences punishable under section 20 (b) (ii) (c) of the NDPS Act and convicted accordingly. Let they be heard on the point of sentence.
Announced in open Court on 28th October 2017 (Dr. S. K. Gautam) Special Judge(NDPS)/ASJ South District: Saket SC No. 7201/16 State Vs. Parmod Kr. Pradhan & Ors. Page 66 of 66