Delhi District Court
State vs Vinod @ Binnu S/O Brij Mohan, on 29 November, 2012
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE (NORTH
EAST) : KARKARDOOMA COURTS, DELHI
SC No. 02/2011
FIR No. 118/2004
PS New Usmanpur
Under Section 21 NDPS Act
Case ID 02402R0054902011
State Versus Vinod @ Binnu S/o Brij Mohan,
R/o H. No. J385/1, Gali No. 13,
3 ½ Pushta Kartar Nagar, Delhi.
Date of Institution 09.02.2011
Date of hearing Final Arguments 02.11.2012
Date of Judgment 29.11.2012
J U D G M E N T
1. In the present case, the accused is facing trial for the offence punishable U/s 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, on the allegations that on 19.04.2004, at about 12.55 a.m. (night), at Pontoon Pool road, near water pipe line, third Pushta, Usmanpur, Delhi, within the jurisdiction of P.S.New Usmanpur, he was found in possession of 50 grams of 'Smack', a FIR118/2004 PS New Usmanpur Page 1/10 contraband, without any license or permit.
2. In order to prove the charges against the accused, the prosecution has examined a total of thirteen witnesses, who are all police officials.
3. After completion of prosecution evidence, the statement of the accused was recorded U/s 313 Cr.P.C. on 01.10.2012, wherein, the accused has denied all the incriminating evidence against him and has deposed that he is innocent and has been falsely implicated in this case being a BC of the police station. He has further stated that he was lifted from his house and the contraband was planted upon him. He has further stated that all the writing work was done in the police station and his signatures were obtained on some blank papers, written documents and printed proformas. The accused has not led any defence evidence, despite opportunity.
4. After completion of trial, final arguments were addressed by Sh. S.K. Dash, Ld. Additional PP for the State and Sh. R.S. Goswami, Advocate, for the accused. The Ld. Addl. PP for the state has argued that all the mandatory provisions of the NDPS Act have been duly followed by the investigating officers and the prosecution witnesses have duly proved the recovery of 50 grams of 'Smack' from FIR118/2004 PS New Usmanpur Page 2/10 the possession of the accused and therefore, the accused should be convicted for the offence punishable U/s 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
5. On the other hand, the Ld. Defence Counsel, Sh. R.S. Goswami, Advocate, has argued that the accused has been falsely implicated in this case and no recovery was effected from his possession. He has also argued that the accused has been implicated in the present case only because the accused was a BC of the area of PS New Usmanpur and was having an award on his arrest.
6. He has further argued that there are several contradictions, in the depositions of the witnesses which makes the entire prosecution case doubtful and therefore, the accused be acquitted of the offence punishable U/s 21 (b) of the NDPS Act, 1985.
7. I have carefully gone through the case file & I have given my considered thoughts to the arguments addressed by the Ld. Defence Counsel and the Ld. Addl. PP for the State. Perusal of the record shows that first IO SI Lal Saheb (PW12), Ct. Naresh Kumar (PW4), Ct. Harinder Singh (PW5), HC Rati Ram (PW7), Ct. Shiv Raj (PW9) and Ct. Nand Kishore (PW10) have all deposed that on 19.04.2004, they were present at third pushta, New Usmanpur, in FIR118/2004 PS New Usmanpur Page 3/10 investigation of case FIR No. 116/2004 of PS New Usmanpur and at about 12.05 a.m. (mid night) SI Lal Saheb received the secret information about the accused in the present case. The FIR No. 116/2004 was also registered against accused Vinod. All these police officials have further stated that after receiving the secret information, they took their positions near the pipe line, near third pushta, New Usmanpur and at about 12.40 a.m. accused Vinod came there from the side of Pantoon Pul, alongwith his two other associates. As the accused was a BC of the area and was known to the police officials, HC Rati Ram (PW7) identified him and SI Lal Saheb asked accused Vinod to stop. On which, accused took out a country made pistol (katta) and pointed the same towards SI Lal Saheb. In the meantime Ct. Harinder and Ct. Nand Kishore tried to over power him but, he fired on Ct. Harinder. Ct. Harinder saved himself from the fire and when the accused tried to load the country made pistol again, he was caught by Ct. Harinder and Ct. Nand Kishore snatched country made pistol from his hand. The country made pistol was handed over to SI Lal Saheb, who checked the same and found that the same was loaded with one live cartridge. The country made pistol was emptied by SI Lal Saheb and thereafter, the personal search of the accused was conducted by SI FIR118/2004 PS New Usmanpur Page 4/10 Tej Ram Meena. In his personal search, another live cartridge was recovered from the right pocket of his pant and one small green coloured polythene containing Smack was recovered from his left pant pocket. Thereafter, SI Lal Saheb conducted the proceedings against the accused regarding recovery of Arms and Ammunition and SI Tej Ram Meena conducted the proceedings against the accused regarding the recovery of Smack.
8. Perusal of the record further shows that the accused was allegedly apprehended at about 12.55 a.m. but no intimation regarding his apprehension or recovery of Arms and Ammunition and Smack from the possession of the accused were sent to any senior police officer till 3.30 a.m. Even, no intimation was sent to the concerned SHO or the police station. As per record Ct. Naresh Kumar reached the police station at about 3.25 a.m. with the rukka sent by SI Tej Ram Meena and thereafter, case FIR No. 118/04 was registered at PS New Usmanpur U/s. 21 of the Arms Act. There is no document on record, which indicates that due information was sent to the senior police officials or to the SHO concerned or to the police station, immediately after the alleged incident. Furthermore, case FIR No. 118/04 was registered at PS New Usmanpur at about 3.30 a.m. but still, the FIR118/2004 PS New Usmanpur Page 5/10 accused was not arrested till 6.00 a.m.
9. Perusal of the record further shows that SI Lal Saheb was entrusted with the investigation of case FIR No. 116/04, U/s. 387 IPC of PS New Usmanpur, for which he left the police station alongwith the other police officials at 11.50 p.m. on 18.04.2004 vide DD No. 25 A (Ex. PW2/A) and he received the secret information about the accused at about 12.05 a.m. near third pushta, New Usmanpur. But, after alleged incident and alleged recovery of Arms and Ammunition and the Smack from the possession of the accused, notice u/s. 50 NDPS Act Ex. PW4/A, refusal of the accused Ex. PW9/A and the seizure memo Ex. PW4/B were allegedly prepared by SI T.R. Meena and all these documents bear the particulars of the case including the FIR Number. SI T.R. Meena was present at the spot with the other police officials and therefore, it is not clear, as to how he came to know about the FIR number of the present case. Furthermore, the seizure memo Ex. PW4/B and the notice U/s. 50 NDPS Act Ex. PW4/A are in different hand writings, which indicates that these two documents were prepared by two different persons at different times.
10. Perusal of the record further shows that the alleged sample of Smack, was sent to FSL Rohini alongwith the FSL form FIR118/2004 PS New Usmanpur Page 6/10 vide RC no. 126/21 through Constable Harinder on 18.05.2004. The alleged recovery was effected from the possession of the accused on 19.04.2004. Therefore, there is a delay of about 29 days in depositing the samples at the FSL, Rohini. No explanation has been given by the IO, regarding the delay in submitting the samples to FSL Rohini, for chemical analysis.
11. It has been held by the Hon'ble High Court of Delhi in case titled as Rishidev @ Onkar Singh Vs. State (Delhi Administration), decided on 01.05.2008 in Crl. Appeal No. 757/2000, as under: "8. In a significant judgment in Parminder Singh v. State of Haryana 2007 (2) JCC (Narcotics) 71, the Punjab and Haryana High Court found that there was no explanation for the delay of 25 days in sending the samples for analysis. In para 13 of the judgment it was held as under: (JCC @ p.76)
13. No. explanation has come forward from the side of the prosecution as to why the samples were sent after a gap of 25 days for analysis. S.K. Nagpal, Retired Senior Scientific Officer, FSL, Madhuban PW2 has stated that on 7.8.2001 five sealed parcels were received in the Laboratory, but the same were returned back due to the reason that the FIR in that case was registered on 12.7.2001, with the objection regarding the delayed deposit of sample parcels. As per this witness, according to the narcotic Control Bureau Instructions, the sealed parcels should be deposited within FIR118/2004 PS New Usmanpur Page 7/10 72 hours with the Chemical Examiner. He has further stated that two samples were to be taken of the seized contraband as per instructions. The explanation given by DSP Chander Singh PW6 to this witness was that samples could not be sent earlier due to VVIP duties. Ram Kumar MHC PW3 brought Rapat Roznamcha from 12.7.2001 to 16.7.2001. During this period, it has been shown that the Police Force was not sent for VVIP duty at anytime. The crossexamination or Ram Kumar MHC PW3 was deferred by the trial court to enable the witness to produce the Roznamcha from 16.7.2001 to 13.8.2001. This witness was not brought into the witness box by the prosecution. We can safely infer that Ram Kumar PW3 was not brought again into the witnessbox, as the period from 16.7.2011 to 13.8.2001 did not show any VVIP duty. It is clear that the Investigation Officer Chander Singh DSP PW6 has only made an excuse, which is not convincing, that the samples could not be sent because of VVIP duty."
The above passage shows that there is a time limit of 72 hours stipulated by the narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event."
(emphasis supplied by me)
12. In the present case, the prosecution has led the evidence regarding the deposition of the case property at the Malkhana on 19.04.2004 and sending of the sample to FSL on 18.05.2004, but, there is no evidence for explanation of delay of about 29 days in sending the samples to FSL for chemical examination and the same violates the FIR118/2004 PS New Usmanpur Page 8/10 guidelines of NCB. Furthermore, the IO SI T.R. Meena handed over his seal to SI Lal Saheb, but, there is no evidence about the return of seal to him by SI Lal Saheb. Furthermore, SHO Insp. Gurmeet Singh has also received the sealed pulandas and the case property from Ct Naresh Kumar and affixed his seal of GSP on the parcels and the FSL form but he has not handed over his seal to any other police officials, after use. His seal remained with him at all times. Furthermore, the copy of the seizure memo which was handed over to SHO Insp. Gurmeet Singh alongwith the case property and the FSL form, before depositing the same at the Malkhana, has not been produced before the court during the trial. HC Ishwar Singh, who received back the remnants of the sample and the FSL result from FSL Rohini on 09.08.2004 had not been examined during the trial. Therefore, the possibility of tempering of samples can not be ruled out.
13. From the above discussion, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond a shadow of doubt, and therefore, the accused is hereby acquitted for the offence punishable U/s 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused is directed to submit a bail bond in the sum of Rs.20,000/ with one surety of the FIR118/2004 PS New Usmanpur Page 9/10 like amount and the same shall remain in force for a period of six months from today, as per the provisions of Section 437A of the Cr.P.C.
14. The accused is further directed to appear before the appellate court, as and when the notice is issued to him by the appellate court, in any appeal, if preferred by the State.
File be consigned to record room, after due compliance. Announced in the open court on this 29th day of November, 2012. Brijesh Kumar Garg Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
FIR118/2004 PS New Usmanpur Page 10/10