1 IN THE COURT OF MS [ENTITY]: SPECIAL JUDGE: [ACT]: 02: CENTRAL DISTRICT: TIS HAZARI : DELHI SC NO. 52/11 STATE versus 1. [ENTITY] S/o Mohd Ahmad Khan R/O Room No. 216, Ekta Nagar Gate No. 8 Malwani, Malad West Mumbai. 2. [ENTITY] S/o Mustkin Sheikh R/o Riyasat Ali Ki Chal Near Junny Maszid, PS Meghwari, Jogeshwari East Mumbai. 3. [ENTITY] s/o Lt Miya Jaan Abbas Sayaid R/o Room No 105, MMRDA Poonam Nagar, PMG Colony, Andheri East Mumbai. FIR No. : 78/11 Offence U/S : 20 [ACT] Police Station : Lahori Gate DATE OF INSTITUTION: 29/07/2011 DATE OF JUDGMENT: 17/04/2014 JUDGMENT
1. The case of prosecution is that on 31.05.2011 at about 7.30 p.m. at Railway Line near Coaching Yard, New Delhi Railway Station, accused [ENTITY] was found in conscious possession of 2 KG 7 grams of charas, accused [ENTITY] was found in conscious possession of 1KG 26 grams of [ENTITY] and accused [ENTITY] was found in conscious possession of 1 KG 10 grams of charas. The accused persons were arrested and after completion of investigation, the charge sheet was filed.
2. Accused persons were charged for the offense punishable u/[SECTION] [ACT] to which accused persons pleaded not guilty and claimed trial.
3. Prosecution had examined 14 witnesses in all to prove the case against the accused persons. The substance of the prosecution evidence is as follows:
4. PW1 [ENTITY] has deposed that on 01.06.2011 he was posted as Reader, ACP Kotwali. On that date one report u/[SECTION] [ACT] was received. The same was placed before ACP and after going through the same, ACP signed the report. The copy of the report is Ex.PW1/A. On 02.06.2011, another report u/[SECTION] [ACT] was received and he made relevant entry at serial no. 24 and the same was placed before ACP, who signed the same. The report is Ex.PW1/B.
5. PW2 [ENTITY] has deposed that on 01.06.2011 he was posted as duty officer in PS Lahori Gate. He stated that at about 2.20 a.m, on receipt of rukka he recorded the FIR Ex.PW2/A of the present case. He has also proved the copy of the DD No. 3 A as Ex.PW2/B.
6. PW3 SI [ENTITY] was the member of the raiding party. He has supported the case of the prosecution. He had deposed in detail about the recovery of contraband from the possession of accused persons.
7. PW4 SI [ENTITY] is also the member of the raiding party. He had deposed in detail about the recovery of contraband from the possession of accused persons.
8. PW5 [ENTITY] has deposed that on 01.06.2011 he was working as the MHCM in PS Lahori Gate. He has deposed that on that date SHO handed over eight sealed [ENTITY] along with FSL form and copy of seizure memo for depositing the same in Malkhana. On the same day Inspector [ENTITY] handed over him personal search articles of accused persons for depositing the same in malkhana. On 30.08.2011 he sent five sealed pulanda to FSL through [ENTITY] . On 30.08.2011 five [ENTITY] were received back through ASI [ENTITY] along with the result. The result was given to IO. The copies of original entries in register no. 19 are Ex.PW5/A to Ex.PW5/B. Witness has further deposed that during the period, abovesaid sealed [ENTITY] remained in his custody, same was not tampered nor allowed to be tampered with them.
9. PW5 [ENTITY] (it should be treated as PW5A) has deposed that on 23.06.2011, he collected the sample [ENTITY] along with FSL form vide RC no. 103/21/11 and went to FSL and deposited the same. He has handed over the acknowledgment of FSL to MHC(M).
10. PW6 Inspector [ENTITY] has deposed that On 01.06.2011 investigation of this case was marked to him. He prepared the site plan Ex.PW6/A at the instance of SI [ENTITY]. From the personal search of accused [ENTITY] original copy of notice under [SECTION] [ACT] , an amount of Rs. 7400/, three Nokia mobile phones, two R.C. , PAN Card , One Metro Card, two rings of golden colour, one ATM Card of SBI, driving licence were recovered. He prepared personal search memo of accused [ENTITY] vide memo Ex. PW3/D. He prepared arrest memo of accused [ENTITY] vide Ex. PW3/C. He interrogated accused , recorded his disclosure statement vide Ex. PW3/E. From the personal search of accused [ENTITY], original copy of notice under [SECTION] [ACT] , an amount of Rs. 540/ and one Metro Card were recovered. He prepared personal search memo of accused [ENTITY] vide memo Ex. PW6/B. He prepared arrest memo of accused [ENTITY] vide Ex. PW6/C. He interrogated accused , recorded his disclosure statement vide Ex. PW6/D. From the personal search of accused [ENTITY], original copy of notice under [SECTION] [ACT] , an amount of Rs. 1600/ , one Nokia Mobile phone, driving licence and one Metro Card were recovered. He prepared personal search memo of accused [ENTITY] vide memo Ex. PW6/E. He prepared arrest memo of accused [ENTITY] vide Ex. PW6/F. He interrogated accused [ENTITY] , recorded his disclosure statement vide Ex. PW6/G. Witness has further deposed that on 02.06.2011 he proceeded on leave and the further investigation of this case was handed over to SI [ENTITY] of P.S. Lahori Gate. Investigation remained with SI [ENTITY] from 02.06.2011 to 01.07.2011. On 05.07.2011 , he has taken up the further investigation. Challan was prepared . He prepared the report u/[SECTION] [ACT] Ex. PW1/A. The witness has identified one mobile phone, one Metro Card and an amount of Rs. 540/, another amount of Rs. 1600/ Ex. PX.
11. PW7 SI [ENTITY] has deposed that on 31.05.2011, at about 6. 25 p.m., a secret information was received in PS itself. As per the secret information, the accused [ENTITY] had come to railway station alongwith his two associates. He conveyed the same to the then SHO Inspector [ENTITY]. The secret information was reduced in writing and he was instructed to constitute a raiding party. Thereafter, he constituted a raiding party consisting of himelf, SI [ENTITY], SI [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY]. The secret informer also accompanied them. They reached at spot ie Coaching yard, New Delhi Railway station at 07.15 p.m. Witness requested 45 passersby to join the raiding party but none agreed and left the spot without disclosing their names and addresses. He briefed the staff and they were separated into three teams. He took position alongwith SI [ENTITY] and [ENTITY] at cemented sleeper. [ENTITY], [ENTITY] and [ENTITY] took their position at Coaching yard. SI [ENTITY] and rest of the team member took position at washing yard. At about 07.30 p.m, they noticed that three persons coming from New Delhi Railway station side having bags hung on their shoulders. The secret informer pointed towards those three persons. He made signal to the raiding party and all the three persons were apprehended by them. He alongwith SI [ENTITY] and [ENTITY] apprehended accused [ENTITY]. SI [ENTITY] and his team apprehended accused [ENTITY] and team of SI [ENTITY] apprehended accused [ENTITY]. He told all the three accused about the secret information and he also apprised them about their legal right to get their search conducted in the presence of Gazetted Officer or Magistrate to which they refused to exercise their legal rights. Thereafter, he served notices u/[SECTION] [ACT] to all the three accused separately. Notice served upon accused [ENTITY] is Ex.PW4/A , notice served upon accused [ENTITY] is Ex.PW7/A and notice served upon accused [ENTITY] is Ex.PW3/A and refusal of accused persons are Ex.PW7/B, 7/C and 7/D respectively. He told the accused that since he has information about the contraband being carried by them, he has to conduct search of them. He offered himself for personal search to the accused before conducting their search, this was also refused by the accused. Thereafter, his personal search was conducted by [ENTITY], same is Ex.PW7/E. First of all, he conducted search of accused [ENTITY]. A black colour bag carried by him was checked by him. The bag had two yellow colour pulanda. After opening the pulanda, it was found containing [ENTITY] by smelling. One pulanda was found containing 1 kg and 15 gms [ENTITY] and the second pulanda was found containing 992 gms. Out of the first pulanda, he took out 50 gms [ENTITY] as sample, the same was converted into pulanda with the help of white cloth and sealed with the seal of AKS and given mark SA1. From the second pulanda, he took out 51 gms [ENTITY] as sample, the same was converted into pulanda with the help of white cloth and sealed with the seal of AKS and given mark SA2. The case property of both the pulanda were also converted into separate [ENTITY] with the help of white cloth, same were sealed with the seal of AKS and these were given mark A1 and A2. The remaining case property was again kept in black colour bag. The black colour bag was also converted into pulanda with the help of white cloth and it was also sealed with the seal of AKS and given mark A3. He filled up FSL form and sealed with the seal of AKS and he seized the case property and sample vide memo Ex.PW3/B. Thereafter, the black colour bag carried by accused [ENTITY] was checked, the bag was found containing one yellow colour packet. He opened the same and on smelling, it was found containing [ENTITY]. On weighing the same, it was found containing 01 kg 10 gms [ENTITY]. Out of the same, he took out 50 gms [ENTITY] as sample. He converted the same in pulanda with the help of white cloth, sealed with the seal of AKS and given mark SB1. The remaining [ENTITY] was again kept in black colour bag, converted into pulanda with the help of white cloth, sealed with the seal of AKS and given mark B1. FSL form was filled up and seal was affixed on it. He seized the case property and sample vide seizure memo Ex.PW4/B . Thereafter, he searched green colour bag carried by the accused [ENTITY]. It was found containing two yellow colour packet. It was opened and on smelling the smell, it was found containing [ENTITY]. On weighing one packet, it was found containing 500gms of [ENTITY]. he took out 52 gms as sample from the same and he converted the same in pulanda with the help of white cloth sealed with the seal of AKS and given mark SC1 and remaining case property was again kept in same packet and converted into pulanda, sealed with the seal of AKS and given mark C1. He opened the second packet, it was found containing 526 gms [ENTITY], out of the same he took out 50 gms [ENTITY] as sample and converted the sample as well as remaining case property in pulanda with the help of white cloth, sealed with the seal of AKS, sample was marked as SC2 and remaining case property was marked as C2. Both the packets were again kept in green colour bag and bag was converted into pulanda with the help of white colour cloth, sealed with seal of AKS and given mark C3. He filled up FSL form and affixed the same seal on it. He seized the case property as well as sample vide memo Ex.PW7/F. SHO Inspector [ENTITY] also reached at spot. He made inquiries from the accused. Witness produced all the [ENTITY], FSL forms and carbon copies of seizure memos to Inspector [ENTITY] who affixed his seal on all the [ENTITY], FSL forms and copies of seizure memos. Thereafter, he left the spot alongwith sealed [ENTITY], FSL form and carbon copies of seizure memos. Witness prepared rukka Ex.PW7/G and handed over the same to Ct [ENTITY] for registration of PS. Ct [ENTITY] went to PS and got the case registered. Ct [ENTITY] came back to spot alongwith copy of FIR, original rukka and Inspector [ENTITY] to whom the further investigation was marked. Inspector [ENTITY] prepared site plan at his instance. Witness handed over original seizure memos and his personal search and custody of accused persons to Inspector [ENTITY]. Witness has identified two [ENTITY] serial no A1 and A2, pulanda having serial no A1 including wicks of [ENTITY] as Ex.P1,pulanda having serial no A2 as Ex.P2 and bag as Ex.P3, pulanda having serial no SA1 as Ex.P4, envelope SA2 as Ex.P5.
12. PW8 SI [ENTITY] was also the member of the raiding party. He has deposed on the same lines as deposed by PW7.
13. PW9 [ENTITY] has deposed that he is a mechanic by profession and running his own workshop in the name of New Pargati Automobile. His brother [ENTITY] also works with him in the said workshop. In the year 2011 one Indica car of white colour was brought in workshop by a crane in accidental condition by his brother [ENTITY] on the request of three persons. Lateron, wife of accused [ENTITY] came to his workshop to receive the said car as such he came to know about the name of [ENTITY] being the person on whose request his brother [ENTITY] had brought the said car in the workshop by a crane. Later on his brother [ENTITY] told him that police had arrived at the workshop to take the said Indica car but at that time the car was not in running condition as such his brother had given 1015 days time to the police and the police had instructed his brother [ENTITY] not to deliver the said car to anybody else as such he did not deliver the said car to the wife of [ENTITY]. On 21.06.2011 police again arrived at workshop and on that day he was present on said workshop and the said car was seized by the police by the seizure memo Ex PW 9/A .
14. PW10 [ENTITY] has deposed that on 21.06.2011 he joined the investigation of the present case along with SI [ENTITY]. On that day they both reached at New Pargati Automobiles main road PAC Gate No. 1 in front of Dabur Research Centre, Vaishali, Ghaziabad. From the said workshop the [ENTITY] car of white colour bearing registration no. MP 13 CA 1306 belonging to accused [ENTITY] was seized in the presence of mechanic [ENTITY] vide seizure memo already Ex. PW 9/A.
15. PW11 ASI [ENTITY] was also the member of the raiding party. He has deposed in detail about the recovery of contraband recovered from the possession of accused persons.
16. PW12 retired SI [ENTITY] has deposed that on 03.06.2011, he was posted at P.S. Lahori Gate. Police custody remand of accused [ENTITY], was obtained by the IO of this case Inspector [ENTITY]. Police custody remand of accused [ENTITY] was granted upto 07.06.2011 and as per the directions of Addl. SHO , he had gone to Bombay along with the police party consisting of two constables and two Head constables. Accused was also with them. Accused took them to Mumbai to help them in apprehending the source of supply of charas. The source was searched but they could not search him. They tried to verify the address of the accused but they came to know that the wife of the accused was living there but she had left the place seven years ago. Thereafter , he came back to Delhi along with the accused and police party. On 21.06.2013 , he got recovered a car no. MP13CA1306 [ENTITY] from Vaishali, Ghaziabad, U.P. in pursuance of the disclosure statement of accused made by accused earlier before the previous IO. After recovering the car, the car was deposited with the MHC(M) . The sample charas was sent to FSL through [ENTITY]. The seizure memo of car is Ex. PW9/A. The car is Ex. PX.
17. PW13 [ENTITY] has deposed that he has brought the DD register containing the DD no.18A dt. 31.05.2011 , [CASE NUMBER] dt. 31.05.2011 and DD no.4A dt. 01.06.2011 . The attested copy are Ex. PW 13/A, Ex. PW13/B and Ex. PW13/C respectively.
18. PW14 ACP [ENTITY] has deposed that on 31.05.2011, he was posted as SHO, PS Lahori Gate. On that date, around 6.15PM, [ENTITY] got information about some persons coming in the area of PS Lahori Gate along with some Narcotic Substance . He provided this information to him . After finding truth, he recorded the information vide DD no.18A at 6.30PM and directed [ENTITY] to proceed further, as per law. The attested copy of DD is Ex. PW13/A. At Around 7.45PM SI [ENTITY] informed him that three persons have been apprehended who were suspected to be carrying narcotic substance. He directed him to verify the facts and take action, as per law. He left the P.S. vide DD no.20A , attested copy of which is Ex. PW13/B. On 01.06.2011 around 1AM in the night , he reached at the spot i.e. Railway Yard , New Delhi Railway Station where [ENTITY] and staff met him. [ENTITY] produced 8 sealed pullandas sealed with the seal of AKS with three FSL forms and carbon copies of three seizure memos. He verified the facts from the accused persons and after verifying it , he came to the conclusion that the case is truth. He put his seal of SK on all the pullandas and on FSL form and deposit all the 8 pullandas , three FSL Forms and copies of seizure memos after filling the vacant portion of FIR number in Malkhana of P.S. in proper and intact condition.
19. Thereafter prosecution evidence was closed.
20. [ENTITY]ment of accused persons were recorded u/[SECTION] [ACT] wherein the entire incriminating evidence has been put forth and explained to the accused persons to which they pleaded innocence and false implication. They stated that they have been falsely implicated in this case . Nothing was recovered from their possession . Case property have been planted upon them.
21. Accused persons had stated that they want to lead evidence in defence .
22. DW1 Shri [ENTITY], from Anuj Guest House has deposed that in the register of Anuj Guest House on page no. 163 at position no. 5 the entry in the name of [ENTITY] is made and photocopy of the register is Ex.DW1/A. He has further deposed that he has left the Anuj Guest House in the morning and therefore he was not present in the evening there.
23. I have heard Ld APP for the [ENTITY] and Shri [ENTITY] Ld counsel for all accused persons. Written submissions have also been filed on behalf of accused [ENTITY].
24. It is argued on behalf of accused persons that there are material contradictions in the testimonies of prosecution witnesses. The distance between PS Lahori Gate and the spot of occurrence has been disclosed by various witnesses in different manner. No public witness has been called for joining the investigation. There is delay of 23 days in depositing of sample in FSL and no explanation has been tendered for such delay. Therefore, there were chances of tampering with the parcels. It is also argued on behalf of accused persons that PW5 [ENTITY] has not stated anything about the deposition of FSL form hence it is not proved by the prosecution whether any FSL form was deposited or sent with the sample pulanda to FSL. As regards the sample taken out , it was argued by Ld defence counsel that only one sample was not drawn from each candle. The requirement of law of taking homogenious sample was not complied with. The other FIRs lodged along with the present FIR has resulted in acquittal, this shows present case is false case. Hence it is prayed that accused persons be acquitted as prosecution has not been able to prove the case beyond reasonable doubt against the accused persons. In support of his arguments, Ld counsel for [ENTITY] has relied upon the following authorities:
"1. 2012 LAW SUITS (DEL)
2. 2011 (1) JCC (Narcotics) 63'
25. On the other hand, it is argued by Ld APP that case of the prosecution stands sufficiently proved with the testimony of members of the raiding party and documentary evidence. The mandatory provisions of [ACT] have been properly complied with while conducting the raid and effecting the recovery. The FSL report also confirms recovery of charas from the possession of the accused and for these reasons, accused be convicted.
26. I have considered the submissions of Ld counsel for parties, perused the material on record, judgments relied upon by Ld counsel for accused and considered the evidence led by the prosecution.
27. The arguments advanced by Ld counsel for the accused persons can be categorized in three categories; firstly there is delay in sending the sample to FSL hence there were chances of tampering with the case property; secondly there is no clear evidence about the deposition of FSL form along with seizure memos along with samples; thirdly homogenius sample were not taken out by the IO.
28. I will deal with all the categories separately.
29. As regards the delay and chances of tampering with the parcels, I am of the opinion that only argument that there were chances of tampering with the sample does not mean that actually case property was tampered with or same was manipulated by either the IO or any other person. There is nothing on record to show that when case property were sent to FSL, its seal was tampered or it was not as per FSL form. Further, though it is argued by Ld defence counsel that delay in sending sample shows chances of tampering but no such suggestion was given to any witness. In the light of testimonies of PW5 [ENTITY], MHCM PW5A , [ENTITY] , PW7 SI [ENTITY] and PW14 ASI [ENTITY] , it is proved that seals were intact , and neither seals were tampered with by the persons having custody of it nor it was allowed to be tampered . Hence, this argument of Ld defence counsel is not acceptable.
30. It is specifically proved by the prosecution witnesses specifically PW3 SI [ENTITY], PW14 ACP [ENTITY], who was SHO, at the relevant time and other witnesses that PW14 had reached the spot after he was informed about the recovery. After reaching the spot, PW14 [ENTITY] had verified the facts and [ENTITY] PW7 had handed over the sealed [ENTITY] along with the copy of seizure memos and FSL form to SHO who has affixed his seal of SK on those [ENTITY] packets and FSL form and had handed over his seal to [ENTITY]. It is further specified by PW3 SI [ENTITY] that thereafter SHO left the spot with the case property and above documents. Thus, it is proved that at the time the case property was handed over to SHO, it was handed over along with seizure memos and FSL form. When Shri [ENTITY] the then SHO was examined as PW14, he had also deposed on the same lines and has specifically stated that 8 sealed [ENTITY] sealed with the seal of AKS with three FSL forms and carbon copies of three seizure memos were handed over to him and after putting his seal on [ENTITY], FSL froms he had deposited all those [ENTITY], three FSL forms, copies of seizure memos after filling the FIR no. in malkhana in proper and intact condition. It has further been deposed by PW14 that during the period [ENTITY] remained in his custody, they were not tampered with. No suggestion has been given to PW14 that neither any FSL form nor any carbon copy of seizure memo was given to him or deposited by him in the malkhana. Hence, it cannot be said that seizure memos or FSL forms were not deposited along with parcels in the malkhana. Further PW5 [ENTITY] (though he should be treated as PW5A, as [ENTITY] has been examined as PW5). PW5 [ENTITY] has stated that he had collected the [ENTITY] from MHCM along with FSL forms vide RC no 103/21/11 and had deposited the same at FSL, Rohini and at that time, seals were intact. Thus, from the testimonies of these witnesses, it is clear that FSL form along with carbon copy of seizure memo was deposited with [ENTITY] on the intervening night of 31.05.2011 and 01.06.2011.
31. As regards contention of Ld defence counsel that homogenious sample was not taken from the alleged contraband recovered, I am of the opinion that it is only the matter of interpretation whether the homogenius sample were taken or not. The law, requires that representative sample should have been taken for proving the recovery of contraband. If, out of the candles of contraband recovered from the possession of accused persons, contents of the candle would have been mixed and then homegenius sample would have been taken out of that mixture , it would have been considered to be manipulation with the case property, in the light of judgment of Hon'ble Mr Justice [ENTITY] in case [ENTITY] vs [ENTITY]. While taking the sample, it is necessary to see that sufficient amount of substance must be taken as sample, which can be tested in FSL, to prove the nature of contraband and also practically if 100 candles are found in one packet it would not be practical to expect that sample from each of that 100 candles should be taken for sending it FSL. It will also depend upon the size and weight of the candles/or contraband recovered that whether it will be feasible to take sample from each candle separately as sample or take some of the candles as the representative sample. Then, it is logical to take representative sample of candle from the packet at random, which give correct idea of substance. Because in the present case, the candles are of such size, that considerable amount of sample from each would not have been practically taken or tested in FSL , so as to determine the nature of contraband.
32. Since the random sample has been taken , it amounts to be the representative sample taken from the contraband recovered and the same has been proved to be charas as recovered from the accused persons. Hence, I am of the opinion that prosecution has proved beyond reasonable doubt that accused [ENTITY] was found in conscious possession of 2 KG 7 grams of charas. Accused [ENTITY] was found in conscious possession 1KG 26 grams of [ENTITY] and [ENTITY] was found in conscious possession of 1 KG 10 grams of charas.
33. The provisions of [ACT] particularly [SECTION], [SECTION], [SECTION] and [SECTION] have been properly complied with. PW7 SI [ENTITY] has deposed that he told all the three accused about the secret information and he also apprised them about their legal right to get their search conducted in the presence of Gazetted Officer or Magistrate to which they refused to exercise their legal rights. Thereafter, he served notices u/[SECTION] [ACT] to all the three accused separately. Notice served upon accused [ENTITY] is Ex.PW4/A , notice served upon accused [ENTITY] is Ex.PW7/A and notice served upon accused [ENTITY] is Ex.PW3/A and refusal of accused persons are Ex.PW7/B, 7/C and 7/D respectively. Hence proper compliance of [SECTION] [ACT] has been done by IO. The samples were sent to FSL within reasonable time. For these reasons, the recovery of charas from the possession of the accused has been sufficiently proved.
34. As regards arguments of Ld counsel for accused persons that there are material contradictions in the testimonies of prosecution witnesses, mere fact that different witnesses have given different distance between the spot of occurrence and Police Station, cannot be said to be material contradictions, because police official are human being and are having their own constraint and restraints of human competence and memory. This cannot be termed as material contradiction.
35. As regards the judgment relied upon by Ld counsel for the accused 2011 (1) JCC (Narcotics) 63 Sunil Kumar vs [ENTITY] - this judgment does not apply to the facts of the present case as separate sample has been taken out from all packets recovered from accused persons.
36. The judgment of Hon'ble High Court of Delhi titled as [ENTITY] vs [ENTITY] - 2012 (130 DRJ 471 ( also relied upon by Ld Defence counsel) has held that if the contraband was recovered in different packets , sample from each packet should have been taken to prove that each packet contained contraband and procedure of mixing contraband together and then taking the sample out of that is not correct procedure. Thus, sampling was done properly in this case. In the case [ENTITY] vs [ENTITY] - 2012 (130) DRJ 471 Hon'ble High Court has opined that:
" for example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband, though all may of the same colour, when we mix the substance of all 8 packet into one or two then definitely, the result would be of the total quantity and not of two pieces.
Therefore, the process adopted by the prosecution create suspicion. In such a situation, as per settled law, the benefit there of should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative."
37. In the present case also, accused persons ie accused [ENTITY] was having black colour bag in which two [ENTITY] were found, accused [ENTITY] was having black colour bag in which one yellow colour pulanda was found and accused [ENTITY] was having green colour bag, containing two yellow pulanda, were recovered containing contraband as per the case of the prosecution. IO has taken sample from each packet recovered from the possession of the accused persons. Hence in view of the judgment of case [ENTITY] mentioned above, correct procedure has been adopted by the IO.
38. The accused persons stand charged for the offences punishable u/[SECTION] of [ACT], for having been found in conscious possession of charas. On evaluation of testimony of prosecution witnesses, who were the members of the raiding party namely PW 2 SI [ENTITY], PW4 SI [ENTITY] and PW7 SI [ENTITY] , I find that they have remained consistent and confident in their depositions and no infirmities or discrepancies have emerged during their cross examination. Despite lengthy crossexamination of these witnesses, no contradictions have come out favouring the defence of the accused. There is no reason to affect the credibility and reliability of these witnesses. It is further evident from the documentary evidence particularly the notice u/[SECTION] [ACT], that the proceedings have been conducted meticulously and in full compliance to the provisions of [ACT].
39. The testimony of prosecution witnesses, although they are police officials inspire confidence and their statements are duly corroborated with the documents. They remained unshaken during crossexamination and no concrete reason has been attributed to them for false implication of the accused. The sole defence witness examined on behalf of accused [ENTITY] has not been able to prove the defence of accused. As DW1 has not stated that accused persons were arrested from Anuj Guest House in his presence. Hence his testimony is hearsay evidence and can not be relied upon.
40. On proper and careful evaluation of the facts and events of the case, I conclude that testimony of prosecution witnesses is consistent and trustworthy. The recovery of controlled substance from the possession of accused persons is clearly established. Accused [ENTITY] was found in conscious possession of 2 KG 7 grams of charas. Accused [ENTITY] was found in conscious possession 1KG 26 grams of [ENTITY] and [ENTITY] was found in conscious possession of 1 KG 10 grams of charas. Therefore, accused persons i.e [ENTITY], [ENTITY] and [ENTITY] are found guilty u/[SECTION] [ACT] for having possession of charas. Holding the accused persons guilty, I convict accused persons i.e [ENTITY], [ENTITY] and [ENTITY] u/[SECTION] [ACT]. ANNOUNCED IN THE OPEN COURT ON 17.04.2014 ([ENTITY] ) SPECIAL JUDGE: [ACT]02 CENTRAL DELHI