1 IN THE COURT OF SH [ENTITY] SESSIONS JUDGE/SPECIAL JUDGE, (NDPS) DELHI SC No 97/05 The State Versus [ENTITY] S/o late [ENTITY], R/o Village & P.O. Rehmatpur Dania,Ward No 8, [ENTITY], District Morang ( Nepal). FIR No 68/2005 P.S. Special Cell, Lodhi Colony U/[SECTION] [ACT]. ORDER ON SETNECE 1. Vide my order dated 3.4.07, I had convicted accused [ENTITY] U/[SECTION] [ACT] and U/[SECTION] [ACT]. I have heard ld counsel for the convict and Addl P.P. for the State on the point of sentence. It is submitted on behalf of the convict that he is not a previous convict and is a religious man running a [ENTITY] in Nepal. It is submitted that he has six children and a wife to support and if custodial 2 sentence is awarded to him it is likely to render his whole family destitute. It is submitted that he had come to India from Nepal to collect donation for [ENTITY] in Siliguri from where he had been lifted and implicated in this case. He has submitted that keeping in view totality of facts and circumstances a lenient view be taken. It is also submitted that convict is in custody since 12.5.05, therefore, accused may be treated with lenicny. 2. On the other hand, Addl P.P. for the State has submitted that accused has been an ISI agent who had been apprehended with a large amount of fake Indian currency notes and heroin. It is submitted that such a huge quality of fake Indian currency notes ( worth Rs 1,95,000) shows that the convict is a potential danger to the national health and economy of the country, therefore, he should not be released on probation. 3. At present, India has been facing challenges from the foreign countries where organized efforts are being made to push in India extremism and violence. To support such 3 activities foreign powers make every endevour to pump in fake currency which has the effect of destabilising Indian economy. To support violence in India, it is a well known fact that drug money obtained from illegal trade in narcotics is used as a means of financing violence. Therefore, the menace of narcotics drugs and menace of fake currency both have adverse effect on the national life. In the present case, the convict has been apprehended on the specific information that he would come with fake currency notes. Fake currency notes worth Rs 1,95,000 were recovered from the possession of the convict. Currency was not certainly meant for personal use but was to be used in India for some definite purpose. Apart from that, 23.28 gram heroin was recovered from his possession. U/[SECTION] of the [ACT], benefit of [ACT] can not be given to the convict. Secondly, possession of large number of fake Indian currency notes has the destablising effect on Indian economy, therefore, I am of the view that convict can not be given benefit of [ACT]. Since 23.28 gram heroin had been recovered from the possession of accused, it is an intermediate quantity. Offence U/[SECTION] 4 [ACT] proides for sentence of imprisonment upto 10 years and fine upto 1 lac rupees. Similarly offence U/[SECTION] [ACT] provides for sentence of imprisonment for a period of 7 years and fine. 4. Keeping in view totality of facts and circumstances, I sentence the convict to undergo RI for five years and impose a fine of Rs 20,000 upon him for offence U/[SECTION] [ACT]. In default of payment of fine, he shall undergo SI for three months. For offence, U/[SECTION] [ACT], I sentence the convict to undergo RI for 7 years and impose a fine of R[SECTION],000 upon him. In default of payment of fine, he shall undergo SI for three months. Both the sentences shall run concurrently. Period during which convict has remained in custody shall be set off against the sentence awarded. Convict was arrested on 12.5.05 and was released on bail on 12.6.06. Subsequently, he withdrew the surety bond and he has been in custody in this case from 4.12.06 till date. Thus convict has remained in custody for total period of 2 years and 5 months which shall be set off against the sentence awarded to him. Copy of judgment and order on 5 sentence shall be given to the convict free of cost in order to enable him to file an appeal against conviction and sentence, if he so desires. Jail warrants be prepared accordingly and file be consigned to record room. Announced in the Open Court ([ENTITY]) on 4.4.08 ASJ/SPL. JUDGE( NDPS) DELHI 6 IN THE COURT OF SH [ENTITY] SESSIONS JUDGE/SPECIAL JUDGE, (NDPS) DELHI SC No 97/05 The State Versus [ENTITY] S/o late [ENTITY], R/o Village & P.O. Rehmatpur Dania,Ward No 8, [ENTITY], District Morang ( Nepal). FIR No 68/2005 P.S. Special Cell, Lodhi Colony U/[SECTION] [ACT]. Arguments heard on 28.3.2008 Judgment pronounced on 03.04.2008 JUDGMENT
1. The prosecution has filed a challan under [SECTION] of [ACT] (hereinafter referred as the Act ) and U/[SECTION] [ACT] against accused [ENTITY]. The facts leading to the filing of the present challan are that on 11.5.05 SI [ENTITY] was working in Special Cell Lodhi Colony. On that day at about 6.00 p.m. a secret informer came to him in his office of Special Cell and informed that an ISI agent, namely,[ENTITY] aged about 32 years would come at New Delhi Rly Station at about 8.30 p.m. by North East Express with fake Indian currency and he would hand over the same to some unknown person near Ajmere Gate, Thomson Road, New Delhi Rly. Station. He allegedly recorded this information in daily diary register as DD No 23 and apprised his senior police officials of Special Cell this this regard. He allegedly prepared a raiding party consisting of himself, Inspector [ENTITY], Inspector [ENTITY], SI [ENTITY], ASI [ENTITY], ASI [ENTITY], Hc [ENTITY] and [ENTITY]. At about 11.15 a.m. and left for New Delhi Rly. Station at about 7.05 in government vehicle No DL IC F 7137. At about 8.00 p.m. they allegedly reached Thomson Road near Ajmere Gate and parked the vehicle on Berron road. He is alleged to have asked 4/5 passers by to join the raiding party but none agreed and they left without disclosing their names and addresses. At about 9.40 p.m. Accused wearing blue kurta pyzama allegedly came out of railway station carrying a jute bag in his right hand and took position near urinal Thomson Road,Gate No 2, Ajmere Gate and waited for someone. When he allegedly started going towards Ajmere Gate, he was apprehended at the pointing out of secret informer. On inquiry, accused is alleged to have told his name as [ENTITY]. On one side of bag allegedly carried by the accused Bajla Emporium was written and on the other side Bajla Store was written. On checking, the bag was allegedly found to contain a Bengali newspaper in which six bundles of fake currency notes were wrapped. On counting they were allegedly found to be Rs 1,95,000/-. The said jute bag was also found to contain another polythene bag which contained some powdery substance. On being checked, powdery substance was found to be heroin. Accused was allegedly asked as to which language he understood and he told that he understood Hindi, Urdu, Arabic, Nepali and little English. Notice U/[SECTION] of the Act was allegedly served on the accused apprising him that since he was suspected of having more contraband in his possession so he was required to be searched and if he so desired, he could be taken before a Gazetted Officer or a magistrate for search in his presence. But accused allegedly declined to avail the offer of being taken before Gazetted Officer or a magistrate for search. Search of the raiding party was allegedly offered to accused but he refused to avail this offer also.
2. On weighing, the recovered substance ( heroin) came to 970 gram. Two samples of 10 gms each were allegedly taken and remaining smack was allegedly placed in a polythene. The two sample pulandas were given mark S1, S2 and the pulanda containing remaining smack was given mark A and all the three pulandas were sealed with the seal of [ENTITY]. Form FSL was filled in and seal of [ENTITY] was allegedly affixed thereon. All the three parcels with form FSL are alleged to have been taken into possession vide a seizure memo. Similarly, recovered fake currency notes of denomination of R[SECTION]0 ( 390 in number) were put in a white polythene and converted into a pulanda. Seal of [ENTITY] was affixed thereon. The fake currency notes were taken into possession vide a seizure memo. A [ENTITY] was prepared and sent to PS through ASI [ENTITY] for registration of the case. The seized articles were also sent through him to SHO Special Cell. SHO PS Special Cell allegedly affixed his seal of [ENTITY] on all the three pulandas and form FSL and had deposited the same in Malkhana. Information regarding apprehension of accused and recovery of heroin from him was allegedly sent to the senior police officers under [SECTION] of the Act. Site plan was prepared by the I.O. Samples were sent to FSL for chemical examination. On receipt of result from FSL , showing the contents of sample to be diacetylmorphine and present challan against accused U/[SECTION] of the Act and U/[SECTION] [ACT] was filed against accused.
3. On appearance, accused was supplied with copies of the challan and documents filed therewith as required under [SECTION] [ACT]
4. After hearing Addl PP and Ld. counsel for accused person charges under [SECTION] of the Act and U/[SECTION] [ACT] was framed against the accused to which he pleaded not guilty and claimed a trial.
5. In order to prove its case prosecution in all has examined as many as 13 witnesses. PW-9 SI [ENTITY], PW-5 ASI [ENTITY], PW-7 SI [ENTITY] and PW-8 Inspector [ENTITY] are witnesses of alleged recovery and rest of the witnesses have participated in the investigation of the case.
6. I will start from SI [ENTITY] who had received the secret information and who had allegedly conducted the raid. In his testimony he has stated that on 11.5.05 he was working in Special Cell Lodhi Colony. On that day at about 6.00 p.m. a secret informer is deposed to have come to him in his office of Special Cell and informed that one ISI agent, namely, [ENTITY] aged about 32 years would come at New Delhi Railway Station at about 8.30 p.m. by North East Express with fake Indian currency and would hand over the same to some unknown person near Ajmere Gate, Thomson Road, New Delhi Railway. Station. He is deposed to have recorded this information in daily diary register as DD No 23 and apprised his senior police officials of Special Cell in this regard. He is deposed to have constituted a raiding party comprising of himself, Inspector [ENTITY], Inspector [ENTITY], SI [ENTITY], ASI [ENTITY], ASI [ENTITY], Hc [ENTITY] and [ENTITY]. At about 7.05 p.m. and left for New Delhi Rly. Station in government vehicle No DL IC F 7137. At about 8.00 p.m. they are deposed to have reached Thomson Road near Ajmere Gate and parked the vehicle on Berron road. He is deposed to have asked 4/5 passers by to join the raiding party but none agreed and left without disclosing their names and addresses. At about 9.40 p.m. , the accused, wearing blue kurta pyzama, came out of railway station carrying a jute bag in his right hand and took position near urinal Thomson Road,Gate No 2, Ajmere Gate and waited for someone. When he is deposed to have started going towards Ajmere Gate, he was apprehended at the pointing out of secret informer. On inquiry, accused is deposed to have told his name as [ENTITY]. On one side of bag carried by the accused Bajla Emporium was written and on the other side Bajla Store was written. On checking, the bag was found to contain a Bengali newspaper in which six bundles of fake Indian currency notes of R[SECTION]0 denomination were wrapped. On counting they were found to be Rs 1,95,000/-. The said jute bag was also found to contain another polythene bag which contained some powdery substance. On being checked, powdery substance was found to be heroin. Accused is deposed to have been asked as to which language he understood and he told that he understood Hindi, Urdu, Arabic, Nepali and little English. Notice U/[SECTION] of the Act Ex PW7/B is deposed to have been served on the accused apprising him that since he was suspected of having more contraband in his possession so he was required to be searched and if he so desired, he could be taken before a Gazetted Officer or a magistrate for search in his presence. But accused is deposed to have declined to avail the offer vide his reply Ex PW7/A. Search of the raiding party was also offered to accused which he refused to avail this offer also.
7. On weighing, the recovered substance ( heroin) came to 970 gram. Two samples of 10 gms each were taken and remaining smack was allegedly placed in a polythene. The two sample pulandas were given mark S1, S2 and the pulanda containing remaining smack was given mark A and all the three pulandas were sealed with the seal of [ENTITY]. Form FSL was filled in and seal of [ENTITY] was affixed thereon. All the three parcels with form FSL are deposed to have been taken into possession vide a seizure memo Ex PW5/A. Similarly, recovered fake currency notes in the denomination of R[SECTION]0 ( 390 in number) were put in a white polythene and converted into a pulanda. Seal of [ENTITY] was affixed thereon. The fake currency notes were taken into possession vide a seizure memo Ex PW7/C. A [ENTITY] Ex PW7/D was prepared and sent to PS through ASI [ENTITY] for registration of the case. The seized articles were also sent through him to SHO Special Cell through ASI [ENTITY] with directions to hand over [ENTITY] to the duty officer and other articles to SHO for depositing the same in malkhana. After registration of the case, SI [ENTITY] came to the spot and he handed over him seizure memo of fake currency notes, sealed pulanda of currency notes and notice U/[SECTION] of the Act. Custody of accused [ENTITY] is deposed to have been handed over to SI [ENTITY]. At his instance, SI [ENTITY] prepred site plan Ex PW7/E. Jute bag and clothes of accused were taken into possession by SI [ENTITY] vide memo Ex PW7/F. Accued was arrested vide memo Ex PW7/J and his personal search was conducted vide memo Ex PW7/G. Body Inspection Memo in respect of accused prepared has been proved as Ex PW 7/K. He has identified jute bag carried by the accused in which fake currency notes and heroin was kept as Ex P-1, polythene in which heroin was kept as Ex P-2 and heroin as Ex P-3. He has also identified remnants of sample as Ex P-4. He has also identified fake currency notes in the denomination of R[SECTION]0 as Ex P-5 ( collectively).
8. [ENTITY] PW-9 SI [ENTITY], PW-5 ASI [ENTITY], PW-8 Inspector [ENTITY] have deposed to the same effect as SI [ENTITY] PW-7 has deposed on the point of information, forming of aiding party, proceedings to the place of incident, apprehension of the accused, recovery of smack and fake Indian currency notes of R[SECTION]0 denomination from accused, service of notice u/[SECTION] [ACT], taking of samples, weighing of the smack, sealing of sample pulanda and pulanda containing remaining smack, sending the same to SHO concerned through ASI [ENTITY] and arrest of the accused. The same has not been reproduced for the sake of brevity.
9. PW12 is Inspector [ENTITY]. He had also testified that on 12.5.05 he was posted as SHO P.S. Special Cell. When at about 2.10 a.m. ASI [ENTITY] came to his office and produced three pulandas mark S-1,S-2 and A and form FSL sealed with the seal of [ENTITY] along with copy of seizure memo. He is deposed to have put FIR on above articles and put also his seal of [ENTITY] thereon and deposited the same in malkhana. He is deposed to have recorded DD No 13A Ex PW12/A in this regard. He has also proved copy of register No 19 as Ex PW6/A. He has also testified that on the same day at about 4.20 a.m. SI [ENTITY] produced accused [ENTITY] before him.
10. PW-1 ASI [ENTITY] was working as duty officer on 12.5.05. He had recorded FIR in this case on receipt of [ENTITY] by ASI [ENTITY] sent by SI [ENTITY]. He has proved copy of the FIR as Ex PW1/A. He is deposed to have made endorsement on the [ENTITY] which has been proved as Ex PW1/B. He has also copy of DD entry No 12A and 14A as Ex PW1/C and 1/D.
11. PW-6 ASI [ENTITY] was working as MHCM at P.S. Special Cell on 12.5.05. He has testified that on that day SHO Inspector [ENTITY] had handed over to him three sealed pulandas and one form FSL sealed with the seal of [ENTITY] and [ENTITY] which he deposited in malkhana vide entry No 646 in register No 19. He has also testified that on the same day SI [ENTITY] had also deposited one sealed pulanda sealed with the seal of [ENTITY] in the malkhana. He has also stated that on 26.5.2005 two sealed pulandas sealed with above seals and bearing mark S-1 and S-2 were sent to FSL Rohini through SI [ENTITY] vide [CASE NUMBER] which was issued by PW-4 [ENTITY] who was working as [ENTITY] on that day. On 15.7.05 two sealed pulandas having seal impression of FSL Rohini and bearing marking S-1 and S-2 were received back in the malkhana by SI [ENTITY] along with result. On 6.6.05 one sealed pulanda sealed with seal of [ENTITY] was sent to Govt. Press, [ENTITY] through ASI [ENTITY] vide RC 87/21/05 and on 10.8.05 ASI [ENTITY] returned to Police Station with pulanda and result and deposited the same in the malkhana. He has proved copy of register No 19 as Ex PW6/A and copy of RC as Ex PW6/B.
12. PW-2 ASI [ENTITY] in his testimony has stated that on 6.6.05 he had collected one pulanda from MHCM vide RC No 27/21 as also letter of DCP Special Cell dated 30.5.05 and handed over the same at Govt Currency Press, [ENTITY]. Sample is deposed to have been examined on the same day and after obtaining result, he came back to Delhi and on 9.6.05 he deposited the result and pulanda in the malkhana.
13. PW-11 Sh [ENTITY], Asstt. Works Manager, Currency Notes Press, [ENTITY] has proved that on 8.6.05 he received a sealed pulanda from ASI [ENTITY] of Special Cell and on examination in his laboratory, papers of the currency notes were not found genuine, main watermark and security thread were found imitated, paper thickness was thicker, printing colour, ink shades were not matching, colour registration was not correct and that numbering of notes was not as per genuine and that quality of printing was good. He has proved his report as Ex PW11/A.
14. PW-10 Sh [ENTITY], Dy. Station Superintendent, New Delhi Rly. Station has testified that on 11.5.05 North East Express train arrived at New Delhi at 9.00 p.m. He has also testified that its scheduled time of arrival is 8.25 p.m. He has proved report prepared by Sh [ENTITY], Dy. Station Superintendent in this regard as Ex PW8/A. He has also proved photocopy of entries in this regard as Ex PW8/B.
15. PW-3 Hc [ENTITY], who was working on 12.5.05 as reader to ACP, Special Cell, has testified that a report U/[SECTION] of the Act was handed over to him by SI [ENTITY] and same was entered into diary register. He has proved information U/[SECTION] of the Act as Ex PW3/A and copy of relevant entry in diary register as Ex PW3/B.
16. PW 13 is SI [ENTITY] , who is second IO of this case. In his testimony he has testified that on 12.5.05 on instruction from DO that investigation of this case was assigned to him, he reached the spot i.e. Thomson Road near Urinal, Ajmere Gate, New Delhi Rly. Station and met SI [ENTITY] and his staff along with accused. SI [ENTITY] is deposed to have apprised him about facts of the present case and handed over the documents and custody of accused to him. He is deposed to have prepared site plan Ex PW7/E at the instance of SI [ENTITY]. He is deposed to have arrested accused and conducted his personal search. ASI [ENTITY], after registration of the FIR, returned back to the spot and handed over copy of FIR and tehrir to him. He is deposed to have seized bag, clothes of accused vide memo Ex PW7/F. On the same day, he is deposed to have sent report U/[SECTION] of the Act Ex PW3/A to DCP, Special Cell, through ACP concerned. He is deposed to have also sent a letter Ex PW13/A to Embassy of Nepal regarding arrest of accused being him a Nepali Citizen and report mark A was received confirming him to be a Nepali Citizen. He has also testified that on 26.5.05 he had deposited samples S-1 and S-2 in FSL Rohini for chemical analysis. He has also testified that on 6.6.05 he had sent ASI [ENTITY] with sealed parcel containing fake currency notes to National Currency Notes Press, [ENTITY] for examination and report Ex PW11/A was received in this regard. He is deposed to have also verified the arrival time of North East Express at New Delhi Rly Staion on 11.5.05 and report x PW5/A was received.
17. In his statement of accused under [SECTION] [ACT], his case is that he is a Nepal Citizen and had gone to Siliguri to collect donation for [ENTITY]/Orphanage, namely, Dar ul Ulum Mohamaddiya Salafiya, Rehmatpur, District Mohram, Nepal. He has also stated that this [ENTITY] is run by a Committee and that he had differences with members of committee who had asked the Indian Authorities that he was working for ISI, therefore, Indian Authorities arrested him on 24.4.05 and implicated in this false case. He has also stated that his wife had lodged a report in Dehriya Police Station in Nepal.
18. Accused has also examined his wife [ENTITY] as DW-1. Her version is that she had made a report with [ENTITY] regarding missing of her husband on 10.5.05. She has also stated that she had made number of efforts to trace her husband for three days and when no clue was found, she lodged a report. She has proved receipt copy of report as Ex DW1/1 and certificate of missing issued by P.S. As Ex DW1/2. She has also stated that her husband was managing a [ENTITY] as Principal and that he has been falsely implicated in this case.
19. It has been argued on behalf of the State that accused was apprehended on 11.5.05 from Thomson Road near Urinal, New Delhi Rly Station ( Ajmere Gate) and 970 gram of heroin was found from his possession. Samples were drawn from recovered heroin and were sent to FSL. It is also argued that as per report of FSL received, contents of samples S-1 to S-2 were opined to be smack containing diacetylmorphine 2.6%, and 2.2% respectively. It is argued that the accused was found in possession of fake Indian currency notes of R[SECTION]0 denomination worth Rs 1,95,000. He has argued that notes were sent to Security Press, [ENTITY] and report has been received that they were fake, therefore, accused has also committed offence punishable U/[SECTION] [ACT]. It is also argued that prosecution has proved its case against accused beyond reasonable doubts, therefore, accused is liable to be convicted U/[SECTION] [ACT] and u/[SECTION] [ACT].
20. On the other hand, it has been argued by ld defence counsel that there are inherent improbabilities in the story of the prosecution which make the case of the prosecution improbable and doubtful. It is argued that New Delhi Railway Station had two exists; one on the connaught place side and another on Ajmere Gate side. It is argued that it is not known as to how the raiding party had come to know that accused would becoming from the exit gate of Ajmere Gate side.
21. Secret information was reduced into writing in the form of DD No 23 which has been proved as Ex PW7/DA. Ld counsel for the accused has drawn my attention to the deposition of PW-7. In his testimony, PW-7 SI [ENTITY] has stated that informer had informed that accused would come from gate No 2. However, he was confronted with Ex PW7/DA where this fact has not been recorded. The fact as to from which gate he was to come is not recorded. In Ex PW7/DA, name of the accused has been recorded as [ENTITY] and that he would come by North East Express at New Delhi Railway Station and would deliver fake currency notes to someone near Urinal in front of Ajmere Gate bus terminal. Even as per deposition of PW-9 Inspector [ENTITY], accused came out of the gate, took a right turn and stood near the urinal after crossing the bus stand. It is, therefore, clear that there was a bus stand outside New Delhi Railway Station on Ajmere Gate side and near that there was urinal, therefore, it can not be said there was any infirmity introduced by the witnesses in their version as to from where accused was apprehended. The informer, as per deposition of witnesses, was present there with the police party. Information was specific by name. It shows that informer knew accused prior to the incident and must be knowing him. Accused was apprehended at the instance of secret informer. Accused is deposed to have come out from New Delhi Railway Station from the exit gate situated at Ajmere Gate side. Therefore, it can not be said that police party was not aware as to from which gate accused would come.
22. It is also argued by ld defence counsel that Ex PW7/DA, information was about possession of fake currency notes by the accused and not about possession of narcotic drugs with him. He has argued that absence of narcotic drug with accused in information Ex PW7/DA is clear indication that it had been planted on the accused.
23. On the other hand, Addl PP for the State has argued that police has recovered narcotic substance from the accused after the bag in his possession was searched. He has argued that truth of the information stands established from the fact that fake Indian currency notes of 500 denomination have been recovered from the accused.
24. In the testimony of prosecution witnesses, they have specifically deposed that information was that accused would come with fake Indian currency notes and that he was an ISI agent. PW-8 Inspector [ENTITY] has specifically stated that he was carrying a bag which contained fake Indian currency notes in the denomination of R[SECTION]0 wrapped in newspaper. Total number of notes was
390. Beneath the bag, clothes and another polythene packet containing powdery substance was recovered which on being checked was found to be heroin. The recovery of heroin was by chance. Therefore, there is hardly any infirmity in the prosecution case which cast any doubt on the prosecution case.
25. It has been argued by ld defence counsel that [ENTITY] ExPW7/D was received at the Police Station at 2.00 a.m. On 12.5.05 whereas DD entry in this regard Rx PW1/C shows time of receipt of [ENTITY] as 2.00 a.m. on 11.5.05, therefore, there is infirmity regarding date of incident.
26. I have perused the [ENTITY] Ex PW7/D. Date and time of occurrence in the [ENTITY] have been mentioned as 11.5.05 at 10.15 p.m. whereas DD entry in this regard Ex PW1/C shows time of receipt of [ENTITY] in P.S. at 2.00 a.m. On 11.5.05.
27. I have perused the record. [ENTITY] has been proved as Ex PW7/D. Date and time of occurrence has been mentioned as 11.5.05 at 10.15 p.m. Date and time of sending [ENTITY] to P.S. Has been mentioned as 12.5.05 at 1.30 a.m. DD entry regarding receipt of [ENTITY] was recorded in the form of DD No 12 which has been proved as Ex PW1/C. In this DD entry, it has been mentioned that [ENTITY] was received at 2.00 night on 11.5.05. Expression 2.00 night with reference to night can only be deciphered at 2.00 a.m. If this entry is read with reference to time of dispatch of [ENTITY] mentioned in Ex PW7/D, it will be clear that when [ENTITY] was dispatched on 11.5.05 at 1.30 a.m. , it is understood that it was received in the PS at 2.00 a.m. on 12.5.05. There is another DD entry No 13 proved as Ex PW12/A which shows that at 2.10 a.m. on the intervening night of 11/12.5.05 ASI [ENTITY] had produced copy of a seizure memo, three pulandas of heroin and form FSL before the SHO. There is another DD entry No 14 which has been proved as Ex PW1/D. This entry was recorded at 3.45 night on 11.5.05 regarding registration of the FIR. Copy of FIR has been proved as Ex PW1/A. In this FIR, it has been specifically mentioned that information was received at 2.00 a.m. on 12.5.05 and FIR was recorded at 3.45 a.m. After 12 night date changes and it ought to have been mentioned as 12.5.05, however, it was mentioned as 11.5.05. Therefore, mentioning of date as 11.5.05 instead of 12.5.05 in DDs referred to above is nothing but a clerical mistake. The time of receipt of [ENTITY] has been specifically mentioned in the FIR Ex PW1/A, therefore, I am of the view that though there are some clerical mistakes regarding date of receipt of [ENTITY] in DDs referred to above, nevertheless time of [ENTITY] and time of FIR clearly go to prove that case was registered on 12.5.05 at 3.45 a.m.
28. It has further been argued by ld defence counsel that information, as per prosecution, was that accused was a Nepali whereas he is not Nepali by features which cast a doubt on the veracity of the information.
29. It is case of the accused himself that his forefathers had gone to settle in Nepal and that since birth he has been residing there. When a person has domicile by birth in a particular country, certainly, he would be referred as Nepali. The word Nepali can be used to refer ethnicity as well as domicile. Accused has been domiciled in Nepal ,therefore, it can not be said that he was not a Nepali, particularly, when he has been permanently residing there.
30. It has been argued on behalf of accused that he has been running a [ENTITY] in Nepal and since there is no visa system prevalent between India and Nepal, inhabitants of both the countries have free access to the territory of each other. It is argued that accused had to collect donation from a person in Siliguri and from there police officials had lifted him and subsequently he was falsely implicated in this case.
31. On the other hand, Addl PP for the state has argued that there is evidence on record that accused had travelled from Siliguri to New Delhi by North East Express inasmuch as railway tickets had been recovered from his possession from his jamatalasi. Secondly, he has argued that fake currency notes have been recovered from his possession which are difficult to procure. He has argued that these two things falsify defence of the accused.
32. Prosecution has proved on record personal search memo of the accused Ex PW1/G. Two railway tickets from New Jalpaiguri to New Delhi bearing No 63109 and 63114 had been recovered from his personal search. Explanation for possession of these tickets given by ld defence counsel is that they have also been planted on the accused. In my considered opinion, it does not appeal to the reasons that police would procure railway tickets to plant the same on accused. Even for the sake of argument, it be presumed that tickets were planted on the accused, it does not appeal to the reasons that 390 fake Indian Currency notes in the denomination of R[SECTION]0 could have also been planted on the accused. Ld defence counsel has argued that these currency notes have also been planted on the accused. No ill-will, no motive, no hostility has been imputed by the accused to police officials for his false implication. Therefore, I come to the conclusion that argument of accused for currency notes having been planted on him, does not appeal to the reasons.
33. It is also argued by ld defence counsel that PW-2 ASI [ENTITY] in his testimony has stated that he had taken pulanda containing fake currency notes to [ENTITY] on 6.6.05 for the report of Security Press about genuineness of the currency notes recovered from the accused, he reached [ENTITY] on 8.6.05 and reached to Delhi on 9.6.05 with report. It is argued that he was declared hostile by the prosecution and was cross examined by Addl PP. However, he has denied that he had brought the result on 10.6.05. It is argued that infirmity in the date of his returning to Delhi from [ENTITY] casts a doubt if at all he had taken pulanda of fake currency notes to [ENTITY].
34. It is important to note that in his testimony, PW-2 ASI [ENTITY] has stated that he left Delhi on 6.6.05 with pulanda of fake currency notes for [ENTITY]. He is deposed to have reached [ENTITY] on 8.6.05. It is clear that it takes at least nearly two days to reach [ENTITY] from Delhi. If it is so, then how he could have reached back Delhi on 9.8.05. In Ex PW6/A ( copy of register No 19), there is specific entry in malkhana register that on 6.6.05 pulanda of currency notes duly sealed was sent to [ENTITY] Press through ASI [ENTITY] vide RC No [SECTION]2/21. There is also entry dated 10.6.05 in register No 19 to the effect that a sealed envelope sealed with the seal of Govt. Press, [ENTITY] was deposited in the malkhana by ASI [ENTITY]. It is, therefore, clear that pulanda of fake currency notes was sent to [ENTITY] on 6.6.05 and result was deposited in the malkhana on 10.6.05. Prosecution has examined PW-11 Sh [ENTITY], Asstt. Manager, Currency Notes, [ENTITY] who has proved his report as Ex PW11/A. In this report, date mentioned is 8.6.05. Therefore, first of all, when it was given on 8.6.05, ASI [ENTITY] must not have proceeded from [ENTITY] prior to 8.6.05. Certainly, he would have reached Delhi on 10.6.05. Secondly genuineness of this report has not been disputed by or on behalf of accused. Therefore, even if there may be slight variation in the testimony of PW-2 ASI [ENTITY], it is hardly of any significance. In this report, it is mentioned that number of fake currency notes was 390 and same were examined at Security Press, [ENTITY] and were found to be fake for the reasons mentioned in the report. Paper of notes was not found genuine; main watermark was found imitated; security thread was found imitated; papers of the notes was found thicker than paper of genuine notes; ink shape did not match and colour registration was not correct. Even the printing of the notes was not genuine. I, therefore, do not find any reasons to discard the prosecution case merely on the slight variation of trivial nature crept up in the testimony of PW-2 ASI [ENTITY].
35. It has further been argued by ld defence counsel that soon after his arrest, accused was not taken to nearest PS, therefore, it is violation of [SECTION] [ACT]. It is also argued that contradictions and infirmities crept in the testimony of prosecution witnesses show that case is concocted and fabricated one.
36. So far as argument for non compliance of [SECTION] of the Act is concerned, it is pertinent to mention that Special Cell is a Police Station assigned with task to take cognizance of serious offences under various Statutes- State or Central. Accused was arrested in exercise of powers conferred on Police officers. Even if accused was not taken to nearest police station or the case property was not deposited in nearest Police Station, it is hardly of any significance. In [PRECEDENT], it has been held that provisions of [SECTION] & [SECTION] which deal with steps to be taken by Officer after making arrest or seizure U/[SECTION] are not mandatory. Secondly the prosecution is bound to prove that sample and case property, from the time they were sealed till the sample reached FSL, their seal remained intact. This onus has been discharged by the police/ prosecution. Therefore, when the sample and case property were not tampered with, mere non compliance of [SECTION] of the Act is hardly of any consequence.
37. Ld defence counsel also pointed out certain contradictions. According to him, there is variance in the testimony of witnesses regarding secret information. According to PW-7 SI [ENTITY] informer had told that accused would come out through gate No 2 whereas PW-8 Inspector [ENTITY] has stated that secret informer had not told that accused would come out of the exit gate or from entry gate. He has also added that he had told that he would come out of railway station. It is also pointed out that PW-13 IO [ENTITY] has stated that gate No 1 was entry gate and gate No 2 was exit gate or gate No 2 was mentioned on the gate as shown S-2. Ld defence counsel has also argued that PW-9 SI [ENTITY] was declared hostile by the prosecution who has stated that information was that a Nepali would come from Thomson Road. Second contradiction pointed out is regarding using of vehicle. He has argued that according to PW-5 ASI [ENTITY] police party had left the office of Special Cell in a government gypsy bearing No DL IC 7137 whereas in his cross examination he has stated that police party had gone in two vehicles: one Govt and another private. PW-7 SI [ENTITY] has stated that police party had gone in Govt. vehicle referred to above but in his cross examination he has stated that they had left in two vehicles- one was government vehicle and another was private. He has also admitted that he did not mention the factum of private vehicle in the [ENTITY]. Similarly PW-8 Inspector [ENTITY] has stated that police party had gone in a gypsy and a Private vehicle.
38. Next contradiction pointed out is regarding taking position by the raiding party. According to PW-5 ASI [ENTITY], he did notknow whether gate No1 & 2 are situated. He has also stated that he did not know where gate No1 is but he was specific that gate No 1 is on Thomson Road. PW-7 SI [ENTITY] has stated that site plan Ex PW7/E was prepared at his instance and thtmembers of raiding party had taken position at gate No 2, Ajmere Gate side, Thomson Road i.e. in front of Gate No 2. According tol PW- 8 Inspector [ENTITY], there exists exit gate and entry gate and distance between two is 30 meters. He has also stated that there was a bus stop and urinal in between this distance. He has also pointed out that PW-9 SI [ENTITY] has stated that raiding party was deployed around the area of Thomson Road and Berran Road for keeping the vigil. In his cross examination, he was specific that on exit gate, gate No2 was written. He has also stated that none of the members of the raiding party took position at gate No 2.
39. He has further pointed out that according to PW-10 [ENTITY], Dy. Station Superintendent, New Delhi Railway Station, there are two gates on the side of Ajmere Gate and that on none of the gates, it is mentioned that it is out-gate or in-gate and that two his knowledge, gate number are not mentioned on the gate in the year 2005, whereas according to Inspector [ENTITY] PW-13 gates have been shown on point S-1 and S-2 in Ex PW7/E. He has further pointed out contradiction on the point as to from which gate accused came. He has pointed out that PW-1 ASI [ENTITY] has stated that accused came from gate No 2 whereas PW-7 SI [ENTITY] has stated that accused had come from Thomson Road at gate No 2 and he had started going towards Ajmere Gate, when he was apprehended. PW-8 Inspector [ENTITY] does not specify as to from where accused had come whereas PW-9 SI [ENTITY] has stated that accused had come from gate of railway station and said gate is near Urinal but he does not specify as to from which gate. He has also pointed out contradiction regarding conducting of proceedings. According to PW-9 SI [ENTITY] notice U/[SECTION] of the Act was given to the accused after his bag was searched and fake currency notes and contraband had been recovered. Another contradiction is that colour of powdery substance allegedly recovered from the accused was brown whereas in report of FSL Ex PX, colour of substance has been mentioned as light brown colour.
40. In [PRECEDENT], it has been held that in the deposition of witnesses there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal error of observation, normal error of memory, due to lapse of time, due to mental disposition such as shock and horror etc at the time of occurrence and like. is Keeping in view observations made by Hon'ble Supreme Court, contradictions pointed out by ld defence counsel are insignificant. Secondly exaction and perfection are fallibility of human mind. Witnesses may use varied words to express concept in their mind which may be susceptible to number of interpretations. What the court is required to see is if on the basis of broad factual matrix, a silver line of truth is discernible in the testimony of witnesses. If testimony of a witness suffers from contradiction which go to the root of the matter, his testimony can not be discarded on the basis of minor variations. I am, therefore, of the view that contradictions pointed out by ld defence counsel are hardly of any consequence.
41. Ld counsel for the accused has further pointed out that first of all no public witness has been joined by the prosecution, secondly there are contradictions in the testimony of witnesses which go to suggest that no reasonable efforts were made by the IO to join any independent witness. He has pointed out that PW-5 ASI [ENTITY] does not mention whether any public witness was contacted to join the raiding party. Similarly PW-7 SI [ENTITY] has stated that he had requested 4-5 passers by to join the raiding party but they did not join and left the place. According to PW-8 Inspector [ENTITY] he had sent SI [ENTITY] to bring public witness to join the raiding party whereas PW-9 SI [ENTITY] has stated that Inspector [ENTITY] had asked 2 passers by to join the raiding party but none agreed.
42. Addl PP for the State has submitted that information was specific and was serious affecting the economy of the country, therefore, if any efforts had been made by the police party to call for public witness, perhaps, delay could have foiled the raid.
43. It is important to note that nature of information available with the police was that accused was an ISI agent who would come with fake Indian currency notes to pass on the same to some person at New Delhi Railway Station. Information was quite serious. Keeping in view the nature of information, it can not be expected that police party should have made a haunt for independent witness. If a haunt had been made by the police officials for independent witnesses, perhaps, accused would have escaped. Therefore, even if no reasonable efforts were made by the raiding party to join independent witness, it was because of the valid reasons.
44. Even otherwise it is not sine qua non to the credibility of the police party that their testimony should be corroborated by independent evidence. If argument of ld defence counsel is accepted, it will produce result counter to well established principle of law. Under the law, court has to presume that every witness appearing before the court including police officials would depose honestly on oath. Secondly in law, there is presumption that all official acts are performed in due course of law after complying with all the formalities. Therefore, it is for the accused to bring on record circumstances from which it could be inferred that police officials had motive to falsely implicate the accused. If argument of ld defence counsel is accepted, then Court will have to proceed with inbuilt suspicion in its mind on integrity of every police official appearing before the court. Such an interpretation runs counter to well established law.
45. Even in [PRECEDENT], it has been held that unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses can not be straightway condemned and other evidence discarded in entirety.
46. In view of reasons given above, I am of the view that even non joining of independent witness is hardly of any consequence, particularly, keeping in view facts and circumstances of the case and nature of evidence.
47. It has further been argued by ld defence counsel that no heroin was recovered from the accused and that same has been planted on him. Witnesses have deposed that powdery substance weighing 970 gram was recovered from the accused. Sample was drawn and sent to FSL for chemical analysis. Report of FSL Ex PX has been received which clearly shows that samples Ex S-1 and S-2 were having seals thereon which tallied with specimen of seal which was sent along with the sample. PW-6 ASI [ENTITY] in his testimony has stated that on 26.5.05 two sealed pulandas S-1 and S-2 bearing seal of [ENTITY] and [ENTITY] were sent to FSL, Rohini through SI [ENTITY] vide [CASE NUMBER]. PW-13 Inspector [ENTITY] has stated that he had deposited mark S-1 and S-2 in FSL Rohini on 26.5.05 along with form FSL. Copy of Malkhana register has been proved as Ex PW6/A which clearly shows that sample, when deposited in the malkhana, was sealed with the seal of [ENTITY] and [ENTITY]. There is an entry regarding dispatch of the sample to FSL on 26.5.05 which clearly shows that sample were dispatched to FSL with seal of [ENTITY] and [ENTITY]. Copy of RC has been proved as Ex PW6/B. It also clearly shows that seals present on two samples were of [ENTITY] and [ENTITY] and it was accompanied by form FSL which was also bearing same seals. It is, therefore, clear that from the time sample were taken till they reached FSL, their seal remained intact. According to report of FSL Ex PX S-1 and S-2 were found to contain diacetylmorphine to the extent 2.6% and 2.2% respectively. If average of this percentage is calculated, it comes to 2.4%. Total powdery substance allegedly recovered from the accused was 970 gram. If so calculated, then heroin recovered from the accused comes to 23.28 gram. Therefore, on the basis of evidence on record, it clearly stands proved that accused was found in possession of 390 fake Indian currency notes in the denomination of R[SECTION]0 and 23.28 gram heroin was also recovered from him. No explanation is forthcoming from the side of accused as to how he came in possession of those fake currency notes. Possession of fake currency notes in such a large quantity is in itself evidence that they were possessed by the accused with intention to use and pass on the same as genuine notes. Even otherwise no explanation is forthcoming from the side of accused as to how he came in possession of such fake currency notes and in such large numbers. Rather his case is that nothing was recovered from his possession. It does not appeal to the reasons that fake currency notes in such large numbers can be planted on the accused. I, therefore, come to the conclusion that accused was found in possession of 23.28 gram heroin without any licence or permit, therefore, a case U/[SECTION] [ACT] stands proved against her. It also stands proved on record that 390 fake Indian currency notes in the denomination of R[SECTION]0 which accused possessed with intention to use them as genuine. Possession of notes with intention to use them as genuine is punishable U/[SECTION] [ACT]. Therefore, case of the prosecution against accused U/[SECTION] [ACT] and U/[SECTION] [ACT] stand proved.
48. Now it will be seen if accused has been able to create any reasonable doubt in prosecution case. Ld defence counsel has submitted that accused has examined his wife in his defence who has proved the FIR lodged by her in PS in Nepal regarding missing of accused which clearly goes to prove that he went missing on 10.5.05 from Nepal.
49. DW-1 [ENTITY], wife of accused in her testimony has stated that her husband was found missing 3 days prior to 10.5.05, therefore, she kept on tracing him for all the three days but he did not turn up, therefore, she lodged a report in PS Rangeli regarding his missing. Copy of the report lodged by her has been proved as Ex DW1/A. Certificate issued by the police in this regard has been proved as Ex DW1/B. According to her, accused has been falsely implicated in this case. In his statement u/[SECTION] [ACT], accused has specifically stated that he is a Nepali Citizen and has gone to Siliguri to collect donation for [ENTITY], Rehmatpur, District Mohram, Nepal. According to him, due to enmity with members of committee running [ENTITY], some of the members had asked Indian Authorities that he was working for ISI, therefore, Indian Authorities had arrested him on 24.4.05. If it is so, then testimony of DW-1 is contrary to what the accused has stated. DW-1 has specifically stated that she lodged a report in PS Rangeli, Nepal regarding missing of accused on 10.5.05 and three days prior thereto, he had gone missing. In other words, accused went missing on 7.5.05. If it is so, then he came to be arrested in India on 24.4.05 as alleged by him. DW1/A is certificate allegedly issued by [ENTITY], Gram Vikas Sabha. First of all,on the application of [ENTITY], accused had gone to meet [ENTITY]. This application was made on 25.5.04 but it has been made as 25.5.05 . Secondly certificate was given on 26.5.05. Again this Pardhan has not been examined, therefore, it can not be said that facts mentioned therein are correct. Similarly no reliance can be placed on Ex DW1/2. There is no evidence on record that accused had gone to Siliguri from Nepal as alleged. In the absence of such evidence, it can not be said that accused has any plausible defence.
50. The case of the accused is that he had come to Siliguri on 24.4.05 for collecting donation from T.B.Rai. It is not his case that [ENTITY] was not available. He could have examined [ENTITY] to p;rove that he had invited the accused to collect donation and that he had actually visited him on 24.4.05. In [PRECEDENT], it has been held that non examination of material defence witness to prove version in a criminal case is the strongest possible circumstance to discredit the defence version. Since accused has not examined [ENTITY] whom he could have examined to prove defence witness, it is a circumstance which makes the defence story improbable.
51. In view of reasons given above, I hold that prosecution has proved its against accused [ENTITY] beyond reasonable doubts U/[SECTION] [ACT] and U/[SECTION] [ACT]. Accordingly I hold him guilty under above-mentioned sections and convict him thereunder.
Announced in the Open Court ([ENTITY]) on 3.4.08 ASJ/SPL. JUDGE( NDPS) DELHI