Document Fragment View

Matching Fragments

­

1. The prosecution case is that on 16/12/10 at about 10.00 am a secret informer came to narcotic cell and gave an information to SI Satyawan that one person namely Rehman R/o Sangam Vihar, Delhi, was indulged in bringing heroin from his village Faridpur and selling it in Delhi and he was likely to come at main gate of LBS hospital between 11.00 am to 11.30 am for supply of Heroin in large quantity to FIR No. 172/10, PS. Crime Branch Page 1of 32 St. Vs. Rehman @ Jiyaurehman some one. SI Satyawan produced the secret informer before Inspector Narcotic cell Vivek Pathak at 10.15 am, who satisfied himself about the secret information and informed ACP/ N & CP R.S. Manku through telephone. ACP R.S. Manku directed raid and necessary legal action. SI Satyawan wrote down the information for compliance of section 42 NDPS Act, which was produced before Inspector Narcotic cell. SI Satyawan constituted a raiding party consisting of himself, HC Mukesh Kumar, and HC Jogender Singh. The raiding party alongwith secret informer left in government vehicle no. DL1C­H­5839 driven by HC Sanjeev vide DD No. 15. The IO was carrying with him the IO Bag, field testing kit and electronic weighing machine. The raiding team went to spot via Pusta road, Shakarpur Chungi Flyover, Akshardham Flyover and reached the spot at about 11.05 am. On way SI Satyawan requested 5­6 passersby outside the Police Station Shakarpur and 4 persons at the spot to join the raiding party, however, all of them left without disclosing their names and addresses. At the spot, SI Satyawan directed the driver to park the vehicle at a distance of 50 meter and they all took their positions and started waiting. At about 11.10 pm one person who was wearing a blue jeans and colourful jersey was seen coming from Kalyan Puri side and was identified by the secret informer from a distance of 15­20 meter as Rehman. Secret informer left the spot. The person came and stood at the main gate of hospital and waited for 3­4 FIR No. 172/10, PS. Crime Branch Page 2of 32 St. Vs. Rehman @ Jiyaurehman minutes. When he started to move, he was apprehended at 11.15 am. IO gave the introduction of raiding team. The person on enquiry told his name as Rehman S/o. Habib Ullah R/o H­ No. 13/13, Ratiya Marg, Sangam Vihar, Delhi, aged 22 years. SI Satywan told the secret information to him and said that his cursory search was to be conducted and that he had legal right to get his search conducted in presence of a Gazetted Officer or Magistrate and he also had a right to search the vehicle and police party. A notice u/s 50 NDPS Act was given to the accused, who wrote his reply on the notice in Hindi. SI Satyawan again requested 5­6 public persons to become part proceedings but they left without disclosing their names and addresses. Accused was searched by the IO and from the right pocket of his wearing jeans a black colour polythene tied with the rubber band was recovered. On opening the black polythene, one transparent polythene also tied with rubber band was found, which was containing matiala colour powder. The substance was tested on field testing kit and weighed on electronic weighing machine. It was found to be 320 gms of Heroin. Thereafter, two samples of 5 gms each were drawn. Two pullandas Mark A and B were prepared. Remaining Heroin was given mark C. FSL form was filled and pullandas were sealed with seal of 7APS NB Delhi, which seal was also affixed on the FSL form and seal thereafter was handed over to HC Joginder. The pullandas were seized; rukka was prepared, FIR No. 172/10, PS. Crime Branch Page 3of 32 St. Vs. Rehman @ Jiyaurehman proceedings u/s 55 NDPS Act were also completed. The pullandas, rukka, FSL Form and copy of seizure memo were sent to PS. The accused was produced before Inspector Kuldeep Singh, who conducted his own proceedings and recorded DD No. 14. Pullandas and documents were deposited with MHC(M). Further investigation was handed over to SI Rajveer Singh, who went at the spot; arrested the accused; prepared the site plan; conducted personal search of accused and recorded his disclosure statement. Both the IOs prepared their reports u/s. 57 NDPS Act and submitted them with Inspector Narcotic Cell. Sample A was sent to FSL and as per FSL report the sample was found to be of 9.91 % of diacetylmorphine. On the basis of disclosure made by accused Rehman, one Ajaybir @ Satbir was arrested from whose possession some slips were recovered and he was arrested u/s 29 NDPS Act. Charge sheet was filed u/s 21/29 NDPS Act.

PW­6 deposed that on 16/12/10, he was called by SI Satyawan (PW­7) at about10.40 am, who prepared a raiding party consisting of himself, HC Jogender ( PW­10) and this witness. The fact has been corroborated by PW­10. Thereafter, PW­ 6 deposed that SI Satyawan collected IO bag, field testing kit, electronic weighing scale and the raiding team alongwith secret informer left for the spot in the government vehicle no. DL1CH­ 5839 driven by HC Sanjeev Kumar. DD No. 15 was prepared in this regard by SI Satyawan which is Ex. PW 7/B. PW­7 is corroborated by PW­6 and PW­10 on this aspect and all have said that the team with secret informer left PS at 10.45 am vide DD No. 15. The witnesses deposed that on the way to the spot, the IO SI Satyawan, PW­7 stopped after coming out of the PS Shakharpur and requested 5­6 persons to join the investigation, who all refused to oblige and left without disclosing their names and addresses. Similarly 4­5 persons were also requested to join the investigation after reaching at the FIR No. 172/10, PS. Crime Branch Page 11of 32 St. Vs. Rehman @ Jiyaurehman spot but they refused. SI Satyawan corroborated by PW­6 & PW­10 deposed that the raiding team reached at the spot at 11.05 am, where the driver was asked by him to wait at a distance of 50 meters. Around 11:10 am, one person was seen coming, from Kalyan Puri side, who was wearing blue jeans and multicolour pullover (colourful jersy), the secret informer pointed towards him from a distance of 15­20 meters, identifying him as Rehman. As per witnesses the secret informer left after pointing out at the accused. The person waited for four ­ five minutes and thereafter started to leave and at that time, he was apprehended. The witnesses deposed that the IO disclosed his identity and identity of the raiding team members to the accused. The accused had disclosed his name as Rehman, who was identified by all the three witnesses in the court. IO told him regarding the secret information received by him and that his search was to be conducted. He also said that if he wanted his search could be conducted before a Gazetted Officer or a Magistrate. He explained the legal rights of the accused regarding his search. PW­7 stated that he had offered his search and search of the raiding team members as also the official vehicle to the accused. He deposed that he prepared notice u/s. 50 NDPS Act, carbon copy of which was served upon accused Rehman which is Ex. PW 6/A. The accused refused to avail all the offers given by the IO and his refusal written in his writing has been proved as Ex. PW 6/B. The FIR No. 172/10, PS. Crime Branch Page 12of 32 St. Vs. Rehman @ Jiyaurehman witnesses say that after service of notice, IO again requested 4­5 persons to join the investigation but they refused. PW­ 6 & 10 deposed that IO took the search of accused and found a black polythene packet from right side pocket of his pant which was tied with rubber band; on opening which a white polythene was found containing matiala colour powder. PW­ 7 said that recovery from pocket of jeans. The same on testing was found to be heroin weighing 320 gm. The two samples of 5 gms each were drawn and kept in small transparent polythene which were converted into pulandas and sealed with the seal of 7APS NB DELHI. They were seized vide memo Ex. PW 6/C. The IO has proved the rukka Ex. PW 7/G. The three recovery witnesses identified the case property. Sample mark A is Ex. P1, mark B is Ex. P2 and the recovered heroin is Ex. P3.

23. Ld. Counsel argued that PW­ 7 deposed that the field testing kit was issued to him before 16.12.10 while PW­10 stated that the same was got issued on the same date. PW­ 10 has stated in his cross examination that filed testing kit and electronic weighing machine were taken by the IO from the Malkhana. The IO stated that field testing kit had already been issued to him while electronic weighing machine was got issued on the same date. The answers are not suggesting that issuance meant that there was a difference in issuance and in receiving from malkhana. When was the field testing kit issued to the IO was in his exclusive knowledge and he was the best witness of the fact. So far as MHCM is concerned, it was argued that he did not say in his evidence that the field testing kit or the electronic weighing machine were issued by him to the IO. In a criminal case the witnesses are cited by the prosecution for proving the fact which it wants to be proved by such witnesses. All the witnesses even if they are in knowledge of other aspect of investigation, they per se do not become the witnesses of those FIR No. 172/10, PS. Crime Branch Page 20of 32 St. Vs. Rehman @ Jiyaurehman parts of investigation. If Ld. Counsel wanted to dispute the statement of PW­ 7 on whether or not MHCM gave him the electronic weighing machine, he was expected to have put a question to MHCM in his cross examination for which he could have re­called MHCM after the evidence of PW­7. MHCM having been cited as a witness for registers no. 19 and 21 and having been summoned for that limited purpose, was not expected to have deposed about handing over of electronic weighing machine unless specifically asked. It is not denied that field testing kit as well as electronic weighing machine were with IO at the time of incident, when and how were they obtained has been deposed by him.