Delhi District Court
State vs . 1. Zakir @ Samir on 5 June, 2013
FIR No.2/10 PS Special Cell
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 10/10
ID No. 02403R0208972010
FIR No. 2/2010
PS Special Cell
u/s 21 of NDPS Act
State Vs. 1. Zakir @ Samir
S/o Sadrul
R/o BB235, Namewali Chowk,
Nabi Karim, Delhi.
2 Durgesh @ Mangal @ Ajay
S/o Raj Kishore
R/o 124, 1st Floor, Nand Vihar,
Sector 16A, Dwarka, Delhi.
Date of Institution : 07.06.2010
Judgment reserved on : 21.05.2013
Date of pronouncement : 05.06.2013
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused u/s 21/29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act"). SC No. 10/10 Page 1 of 35
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2. Briefly stated the allegations against the accused persons as contained in the chargesheet are as follows:
(a) Three Pakistani nationals namely Abdul Razzaq, Mohd. Sadiq and Rafaqat Ali escaped from the detention center, Lampur on 01.01.2010 and during the investigation regarding the said escaping, the visitors register at the aforementioned detention center was checked and it was found that one Samir @ Zakir had visited Mohd. Sadiq three times and the said person deals in drugs. Sources were deployed and intelligence was collected.
(b) On 07.01.2010 at about 09.30 am ASI Rakesh Kumar received a secret information that Samir @ Zakir would be coming at Rithala Metro Station for delivering a consignment of heroin to his associate Mangal between 10.15 am to 11.00 am.
(c) ASI Rakesh Kumar produced the informer before Inspector Attar Singh who satisfied himself about the information and thereafter relayed the same to ACP Ravi Shanker. The said information was reduced into writing vide DD No.4 by ASI Rakesh Kumar and copy of the same was handed over to ACP. The said ACP then directed that necessary action be taken and therefore a raiding team comprising of ASI Rakesh, ASI Ashok, HC Dilawar Singh, HC Raj Singh, Const. Rajbir and Const.
Suresh , was constituted and the said team alongwith the secret informer SC No. 10/10 Page 2 of 35 FIR No.2/10 PS Special Cell left at about 10.45 AM for the spot in a govt. gypsy bearing no. DL1CJ3566.
(d) On the way the IO requested 4 public persons near his office, 3 public persons near Rajiv Gandhi Cancer Hospital and 4 passers by and 3 rickshaw pullers near Rithala Metro Station to join the raiding team but none agreed. ASI Rakesh briefed the raiding party and the members of the raiding team then positioned themselves near Rithala Metro Station.
(e) At about 10.45 AM, a person was seen coming from the side of Rajiv Gandhi Cancer Hospital, carrying a polythene in his hand and the said person was identified by the secret informer as Zakir @ Samir and was thereafter apprehended by the members of the raiding team. At that point of time also, 4 public persons were requested to join the investigations but none agreed.
(f) The IO introduced himself and the members of the raiding team to the accused Samir @ Zakir. ASI Rakesh disclosed the secret information to him and a notice u/s 50 of NDPS Act was given to him and he was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said right and wrote his refusal on the notice.
(g) Thereafter, ASI Rakesh conducted the search of the accused and the polythene which was held by accused was opened and on checking the SC No. 10/10 Page 3 of 35 FIR No.2/10 PS Special Cell same was found containing a transparent polythene having brown colour powder, which on testing with field testing kit, gave positive result for heroin. The recovered heroin was then weighed and its weight came out to be 500 grams. Two samples of 5 grams each were taken out and put in a separate small polythenes and converted into cloth pullandas with the help of white cloth and given mark S1 and S2. Remaining heroin was put in the same polythene from which it was recovered and thereafter converted into cloth pullanda and given mark S. All the Pullandas were sealed by the IO with the seal of 'RK'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared.
(h) The Rukka was prepared and was sent alongwith the all pullandas and form FSL through HC Dilawar for registration of FIR. Further investigation was handed over to SI Satender Vasisth who came to the spot and prepared the site plan, arrested the accused and recorded his disclosure statement.
(i) Accused Zakir @ Samir was then produced before SHO at PS Special Cell, Lodhi Colony and thereafter the accused along with the members of the raiding team reached New Friends Colony. Report u/s 57 NDPS Act pertaining to the arrest of accused Zakir @ Samir was submitted to the Reader of ACP.
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FIR No.2/10 PS Special Cell (j) Pursuant to disclosure statement of accused Zakir, on 8/1/2010
at the pointing out of Zakir @ Samir, accused Durgesh @ Mangal was apprehended at Mehrauli Road, Sakhrawali village in front of PBEX. The accused Durgesh @ Mangal was then apprehended and thereafter informed about his legal rights and was issued a notice u/s 50 of NDPS Act and was made to understand that he has a legal right that he can be searched before the Magistrate or a Gazetted Officer. The accused refused to exercise the said right and wrote his refusal on the notice. The said accused Durgesh @ Mangal was then arrested and after his arrest on interrogation he made a disclosure that he had booked a parcel vide receipt no. KPS0620 with KPS International, Krishna Nagar and in the said parcel, he had packed 24 taps and in the said taps had concealed heroin.
(k) Pursuant to the said disclosure, both the accused persons were then taken to the office of KPS International courier wherein Shakti Pawar, the owner of KPS International Courier company identified accused Durgesh @ Mangal and produced two cartoons which were booked by Durgesh @ Mangal and destined for South Africa. Both the cartoons were opened and checked and on opening 12 taps wrapped in transparent polythene were recovered from each parcels. The taps were opened and brown colour powder was found concealed in the cavity of the SC No. 10/10 Page 5 of 35 FIR No.2/10 PS Special Cell head the 8 taps out of 12 taps in the box inscribed with "kangaroo" and in the cavity of the head of the 10 taps out of 12 taps in box inscribed with "Kingster". The total brown colour substance was tested with the help of field testing kit which gave positive result for heroin. The entire recovered substance was put in polythene and weighed and its weight came out to be 300 grams.
(l) Two samples of 5 grams each were taken out and purllandas were prepared and given mark S3 and S4. The remaining heroin was put in pullanda and given mark A. The plastic taps were put back in the carton box from which they were recovered and given mark B and C. FSL form was filled. All the five pullandas, FSL forms were sealed with the seal of SV and taken into possession. Shakti Pawar also informed the investigating official that accused Mangal had made entry at page 54 in the log register in his own handwriting at the time of booking of the parcel and therefore the bill book and the log register containing entries of the sending pullandas were also taken into possession.
(m) Accused persons were thereafter produced before the SHO Special Cell and case property was deposited in the malkhana. Accused persons were produced in the court and PC remand of accused Mangal was thereafter taken and his specimen handwriting were obtained and search was made for his Nigerian coassociates but no clue could be SC No. 10/10 Page 6 of 35 FIR No.2/10 PS Special Cell obtained. Report u/s 57 NDPS Act pertaining to the arrest of accused persons and seizure of heroin were sent to senior officers. During the course of investigation, the sample pullandas of this case, the log register containing the questioned writing of accused Mangal and his specimen handwriting were all sent to FSL, Rohini and after receiving the reports from FSL, the present chargesheet was filed.
3. On the basis of material placed on record, vide order dated 28/10/2010 charges were framed against the accused Zakir @ Samir for the offence punishable u/s 21(c) NDPS Act and against accused Durgesh @ Mangal for the offence punishable u/s.23(c) NDPS Act.
4. In order to prove its case against the accused persons, the prosecution has examined 18 witnesses in all.
5. PW1 HC Dilawar Singh, PW8 HC Rajbir Singh and PW11 ASI Rakesh Kumar are members of the raiding team. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, the notice issued to the accused Sameer @ Zakir u/s 50 of the NDPS Act has been exhibited as Ex.PW1/A and the refusal written by accused on the said notice has been exhibited as Ex.PW1/B. The seizure memo prepared with respect to the recovery of the heroin from accused Sameer @ Zakir has been exhibited as Ex.PW1/C. The tehrir prepared at the spot has been exhibited as SC No. 10/10 Page 7 of 35 FIR No.2/10 PS Special Cell Ex.PW11/A.
6. PW2 Sh. Shakti Pawar is the owner of KPS International. He has interalia deposed that on 07.01.2010 one Mohd. Haroon had visited his courier company with a carton box containing plastic taps and booked the parcel for South Africa. He has further stated that on the next date police came to his office and verified him about the parcel booked by him and he handed over to them the bill cum cash book. The bill cum cash book containing bill no. KPS 0620 has been exhibited as Ex. PW2/A.
7. PW4 ASI Raj Singh has interalia deposed that in his presence specimen signatures of accused Durgesh @ Mangal were taken. He has further deposed that on on 12/01/2010 on the directions of IO, he had gone to PS Special Cell, Lodhi Colony and had taken pullandas mark S1 and S3 from MHC(M) vide RC no. 2/21/10 got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M). He has further deposed that on 04/02/2010, he had taken six sheets of specimen handwriting of accused Mangal @ Durgesh from SI Satender Vasisth and thereafter he had gone to PS Special Cell, Rohini and from where he had taken the form FSL and register vide receipt no. 10/D0524 got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M). He has also specifically deposed that so long as the case property remained with him, it was not tampered with. SC No. 10/10 Page 8 of 35
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8. PW6 ASI M. Baxla has deposed that he was posted as MHC(M) at PS Special Cell on 7/1/2010 and that on this date, SHO of the said PS had deposited with him three sealed pullandas sealed with the seal of RK and RSS and the said property was deposited by him in malkhana vide entry 1466, Ex.PW6/A. He has further deposed that on 8/1/2010, SHO of the said PS had deposited with him five sealed pullandas mark A, B, C, S3, S4 sealed with the seal of SV and RSS and the said property was deposited by him in malkhana vide entry 1468, Ex.PW6/E. According to his deposition, on the same day SI Satender Vasisth had also deposited the one register along with seizure memo and one bill book in unsealed condition along with articles of personal search of accused Durgesh and seizure memo along with SIM card with mobile phone with him and he has proved the said entry at Sl. no. 1469 as Ex.PW6/D. This witness has further deposed that on 12/1/2010, he had also sent the samples along with two FSL forms to FSL Rohini through ASI Raj Singh vide RC no. 2/21/10, Ex.PW6/C. The original MHC(M) Register was also produced in the Court.
9. PW7 ASI Satya Vir, Duty Officer has inter alia deposed that on 07/1/2010 at about 3.30 PM, he had received the rukka prepared by ASI Rakesh Kumar and sent through HC Dilawar Singh and had registered the FIR Ex.PW7/A. SC No. 10/10 Page 9 of 35 FIR No.2/10 PS Special Cell
10.PW9 Insp. R.S. Sehrawat has interalia deposed that on 7/1/2010, he was posted as SHO, PS Special Cell Lodhi Colony and on that day, HC Dilawar Singh came to PS and handed over to him rukka sent by ASI Rakesh Kumar and sealed pullandas mark S, S1 and S2 alongwith FSL form, carbon copy of seizure memo. As per the deposition of this witness, he put the FIR number and his seal 'RSS' on all the pullandas, the FSL form and the seizure memo and then got the said property deposited in the Malkhana by ASI M Baxla, MHC(M) and lodged DD no. 7A in this regard which has been exhibited as Ex.PW9/A. He has further deposed that on 8/1/2010 at about 9:40 p.m. SI Satender Vashisht produced before him accused Mangal @ Durgesh and five pullandas mark A, B, C,S3 and S4 alongwith FSL form, two seizure memos. As per the deposition of this witness, he put his seal 'RSS' on all the pullandas, the FSL form and the seizure memos and then got the said property deposited in the Malkhana by ASI M Baxla, MHC(M) and lodged DD no. 9A in this regard which has been exhibited as Ex.PW9/B.
11.PW10 SI Gyanchand has deposed that that on 7/1/2010 DD No. 4 regarding secret information, the report u/s 57 of the NDPS Act regarding seizure of heroin and arrest of accused Zakir and on 8/1/2010 the report u/s 57 of the NDPS Act regarding arrest of accused Durgesh @ Mangal SC No. 10/10 Page 10 of 35 FIR No.2/10 PS Special Cell were received in the office of ACP. The said DDs and report have been exhibited as Ex.PW10/A, Ex.PW10/C, ExPW10/E and Ex.PW10/G as per the deposition of this witness.
12.PW12 Ms. Mamta has inter alia deposed that on 26/5/2010 police had come to her house and made inquiries from her pertaining to mobile connection number 9266008153 and 9953882103. This witness has further deposed that she has no concern with the aforementioned mobile connection and had never purchased the said sim card.
13.PW13 Sh. Shirajuddin has inter alia deposed that a year back police had come to him and made inquiries from him pertaining to mobile connection number 9716401677. This witness has further deposed that he has no concern with the aforementioned mobile connection and had never purchased the said sim card.
14.PW14 SH. M.N. Vijayan Nodal Officer from Tata Tele Services ltd. has produced before the court the call detail records of the telephone number 9266008153 (the mobile allegedly recovered from accused Durgesh @ Mangal) for the period 15/12/2009 to 7/1/2010 and the same have been exhibited as Ex.PW14/A. The said witness has also produced the customer application form along with ID proof with respect to the said number and as per the said form Ex.PW14/C and Ex.PW14/D, the aforementioned SC No. 10/10 Page 11 of 35 FIR No.2/10 PS Special Cell phone was subscribed in the name of one Mamta Singh w/o Devnath Singh Swami.
15.PW15 Sh. Israr Babu, Nodal Officer from Vodafone Essar Mobile Services Ltd. has produced before the court the call detail records of the telephone number 9953882103 (the mobile allegedly recovered from accused Durgesh @ Mangal) for the period 15/12/2009 to 7/1/2010 and the same have been exhibited as Ex.PW15/B. The said witness has also produced the customer application form with respect to the said number and as per the said form Ex.PW15/A, the aforementioned phone was subscribed in the name of one Mamta Singh w/o Devnath Singh.
16.PW16 Dr. Madhulika Sharma, Asstt. Director, FSL Rohini has proved the report prepared by her with respect to the analysis conducted by her with respect to the samples sent to FSL. The said report has been exhibited as Ex. PW16/A and as per the said report, the sample Mark 'S1 and S3' were found to contain 'paracetamol, caffeine, phenobarbital, acetylcodeine, monoacetylmorphine and diacetylmorphine and the percentage of diacetylmorphine and phenobarbital were found therein to be 1.4% and 1.4% respectively in Ex. S1 and 1.5% and 1.0% in Ex. S3.
17.PW17 SI Satender Vashisht has inter alia deposed about the investigation carried out by him. As per his deposition, the site plan SC No. 10/10 Page 12 of 35 FIR No.2/10 PS Special Cell prepared by him at the spot has been exhibited as Ex.PW17/A. He has also inter alia deposed that he had recorded the statements of various witnesses in this case and had arrested the accused Zakir @ Sameer and the arrest memo prepared by him has been exhibited as Ex.PW8/A. According to this witness on 08.01.2010, he had constituted a raiding party comprising of himself PW5 ASI Shamsher, PW3 HC Bijender, ASI Rakesh, HC Raj Singh and had left office with accused Sameer @ Zakir for Dwarka and had made inquiries about Mangal and had come to know that Mangal had gone to Gurgaon Mehrauli Road at the office of Fedex Courier. He has also deposed that after apprehension of accused Mangal he had prepared the notice u/s 50 NDPS Act and had served it upon the accused Durgesh @ Mangal. The said notice has been exhibited as Ex.PW3/A. He has also specifically deposed that accused Durgesh had refused to get himself searched before a Magistrate or a Gazetted Officer. He has also then described the search and seizure proceedings that were conducted at the office of M/s KPS International. The seizure memo prepared with respect to the recovery of the heroin from taps recovered from two cardboard boxes which were destined to South Africa and were booked by accused Durgesh has been exhibited as Ex.PW2/E. This witness has also proved the report prepared by him u/s SC No. 10/10 Page 13 of 35 FIR No.2/10 PS Special Cell 57 NDPS Act as Ex.PW10/G.
18.PW18 Dr. Virender Singh, Senior Scientific Officer (Documents) FSL Rohini has proved the report prepared by him with respect to the analysis conducted by him with respect to the questioned writing and specimen writing of accused Durgesh sent to FSL. The said report has been exhibited as Ex. PW18/A.
19.The entire aforementioned incriminating evidence was put to both the accused persons and their statements u/s 313 Cr.P.C were recorded. Accused Zakir @ Sameer in his statement has inter alia stated that he alongwith his brother and father had been residing at B235, Name Wali Chowk, Nabi Kareem as a tenant for the last 15 years and had been dealing with purchase and sale of handbags. He has further stated that in the year 2007, he was falsely implicated and arrested in a case of theft and had remained in jail for about one year and during his stay in jail, he had came in contact with one Sadiq. According to the accused, this person had helped him in jail and used to give him money to buy food from the canteen and therefore when this accused was released in the case of theft, he gave his mobile number to the said Sadiq. The accused has further stated that in the year 2010, about 2 months prior to the arrest of this accused in this case, Sadiq had telephoned him and requested him to SC No. 10/10 Page 14 of 35 FIR No.2/10 PS Special Cell send him some clothes in the detention center at Lampur, Narela and since Sadiq had helped the accused, he went to the detention center to give him some clothes. The accused has further stated that he was never aware that accused Sadiq used to deal in drugs and according to the accused he had gone to the detention centre only because Sadiq had helped him during his stay in jail. The accused has further stated that on the date of his apprehension at about 9:30 p.m. at night, 67 persons in civil clothes had come to his rented premises and introduced themselves to be police officials and one of them HC Dilawar asked him if he knew Sadiq. The accused has further stated that when he informed the said HC Dilawar that he know Sadiq, he told him that the police needs to do an enquiry with respect to Sadiq from him and he has to accompany them to the police station. According to the accused, HC Dilawar assured him that he will be allowed to go once their enquiry is over and he was thereafter taken by the police officials to PS Rohini sector6. According to him he was made to sign 56 blank documents on the pretext that if he signed the same, he will be allowed to go. This accused has further stated that the police officials also asked him whether he knew Mangal and he told them that he knew Mangal since 2006 since Mangal was also in the business of sale and purchase of handbags and he also disclosed the address of Mangal to the police officials and on the next day i.e. on 07.01.2010, the police officials SC No. 10/10 Page 15 of 35 FIR No.2/10 PS Special Cell brought Mangal also to the police station. According to this accused he is innocent and has been falsely implicated in this case and that no heroin whatsoever was recovered from his possession.
20.Accused Durgesh @ Mangal in his statement u/s 313 CrPC has inter alia stated that he was in the business of sale and purchase of handbags since the year 2006 and that in the year 2007 he was falsely implicated in a case of theft of a vehicle and had remained in jail in the said case for about two years. He has further stated that after his release on bail in the said case in February, 2009 he had gone to the house of his friend Munna when police officials came and two kg. of charas was recovered from the house of Munna. He has further stated that Inspector Attar Singh was one of the investigating officers in the said case and though he had initially apprehended him along with Munna he let him go after two days on the assurance that he will work as a secret informer for the police. Accused has also further stated that Inspector Attar Singh knew that he had nothing to do with the charas recovered as he had been released from jail only two days back and therefore he assured Insp. Attar Singh that he will work as an informer for the police. According to the accused he however did not contact Insp. Attar Singh for the next one year and on 6/1/2010 at about 11:30 p.m., 78 persons came to his rented premises in Dwarka, Sector 16A and introduced themselves as police officials and asked him if he SC No. 10/10 Page 16 of 35 FIR No.2/10 PS Special Cell knew one Sameer. He has further stated that once he told them that Sameer was known to him since the year 2006 as he was also in the business of bags, police officials told him to accompany them to the PS on the pretext that they have to do some enquiry with respect to Sameer who had helped certain Pakistanis to escape from a detention centre. This accused has further stated that after reaching the PS he met Insp. Attar Singh who was present there and the said Inspector told him that since he had not honoured his assurance of being an informer, he is arresting him in this case. The accused has also stated that Inspector Attar Singh however assured him that if he sign certain documents as per his instructions he will be released in this case in three months and therefore on the assurance of Insp. Attar Singh he wrote his refusal on the section 50 NDPS Act notice and also gave his specimen handwriting on 67 pages and also wrote some address of South Africa in a register. This accused has specifically stated that he had never gone to any K.P.S. International Courier office to book any parcel and that no heroin was recovered in his presence from any parcel in the said courier office.
21.After the Defence evidence was concluded, Ld. APP Sh. Gurjar for State and Ld. Defence counsels Sh. Ghanshyam Sharma for accused Durgesh @ Mangal and Legal Aid Counsel Sh. Qazi for accused Zakir @ Sameer advanced final arguments.
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22.Ld. APP for the State has submitted that the deposition of the prosecution witnesses have more or less remained unrebutted with respect to the search and seizure proceedings and his contention therefore is that the prosecution has been able to prove beyond reasonable doubt that the contraband had been recovered from the accused persons.
23.On the other hand, Ld. Defence counsel Sh. Ghanshayam Sharma for accused Durgesh and Legal Aid Counsel Sh. Qazi have pointed out that the investigating agency did not make any sincere efforts to join public witnesses in their investigation and that this ommission on the part of the investigating officials itself shows that a false case has been foisted upon the accused persons. Legal Aid Counsel Sh. Qazi has contended that the own evidence of the prosecution shows that this accused was only apprehended because had had dared to visit three Pakistanis at the detention center, Lampur and that since the said Pakistanis escaped from the said detention center, the police officials wanted to pin the blame on the accused Zakir and falsely implicated him in this case. It has also been pointed out by Sh. Qazi that if infact the accused had come at the alleged spot to deliver heroin to his coaccused Mangal then why did not the members of the raiding team wait even for a while to apprehend accused Mangal. Ld. Defence counsel Sh. Ghanshyam Sharma has similarly contended that accused Durgesh has been falsely implicated in this case SC No. 10/10 Page 18 of 35 FIR No.2/10 PS Special Cell and that no contraband whatsoever was recovered at his instance. Ld. Counsel has pointed out that the own witness of the prosecution PW2 Shakti Pawar, owner of the courier company M/s KPS International at Krishna Park with whom the accused had allegedly booked the parcel containing the contraband, has not supported the case of the prosecution. Ld. Defence counsel has pointed out that though as per the version of the prosecution, accused Durgesh was taken to the office of KPS International and that in his presence the parcels in question were opened and searched, this witness has categorically stated that the accused was not brought to his office at all. He has also pointed out that the deposition of the said witness also makes it clear that no samples were drawn at the spot or tested in the said courier office. Ld. Defence counsel has also submitted that the entire version of the prosecution with respect to the manner of apprehension of the accused Durgesh @ Mangal is a bundle of lies and the said fact has become apparent from the contradictory statements given by various police officials in their crossexamination. Both the Ld. Defence counsels have also contended that the minuscule amount (approximately 1.5%) of diacetylmorphine found in the substance allegedly recovered from the accused persons shows that the contraband has been planted upon the accused persons.
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24.In rebuttal Ld. APP has pointed out that it is now well settled law that non joining of independent witnesses is not fatal to the case of the prosecution as the public persons are hesitant to join the police proceedings. As regards PW2, the contention of Ld. APP is that merely because one public witness has not supported the case of the prosecution, it cannot be taken that the police witnesses have deposed incorrect facts. As regards the contradictions pointed out in the depositions of the police officials, the contention of Ld. APP is that the police officials cannot be expected to have a photographic memory of the facts of the case and that therefore such minor contradictions should not be allowed to defeat the case of the prosecution. Ld. APP has also pointed out that the call detail records of the mobile phones recovered from the accused persons itself show that they were in constant touch with each other and that they were involved in the illicit trafficking of drugs.
25.I have given careful consideration to the submissions made by all the Ld. Counsels and have perused the entire record. This court is of the considered opinion that in view of the evidence that has come on record, the first and the foremost finding that will have to be given is the prosecution has miserably failed to prove that the accused Durgesh @ Mangal was apprehended in the manner alleged by it. In a case titled as Gurcharan Singh Vs. State reported in 1993 JCC, Hon'ble Delhi High SC No. 10/10 Page 20 of 35 FIR No.2/10 PS Special Cell Court has held that a condition precedent for the prosecution to prove the guilt of the accused is to first prove that its case is plausible and probable and is a true narration of facts and that it did happen in the way and manner as it is asserted to have taken place. The Hon'ble Delhi High Court has categorically held that in case the prosecution fails in this primary duty, the courts need not go any further and need not make any more enquiry in as much as the said case is liable to be dismissed on this short ground alone. The Hon'ble Supreme Court also in its judgment pronounced in a case titled as Premchand Vs. Union of India reported in 1981 SCC (Crl.) 239 has insisted that in the administration of criminal law, the means that the prosecution agency adopts to secure the conviction of a criminal must also be as good as the ends. In the present case, it is quite evident from the evidence on record that the version of the prosecution with respect to the apprehension of the accused Durgesh is completely incorrect. As narrated hereinabove, the averments in the chargesheet are that pursuant to the apprehension of the accused Zakir on 07.01.2010, he had given a disclosure statement and on 08.01.2010 at the pointing out of accused Zakir @ Sameer, Durgesh @ Mangal was apprehended in front of office of PBEX courier, Sakhrawali Village, Mehrauli Road. Now a perusal of the disclosure given by accused Mangal shows that this accused had purportedly inter alia deposed that he SC No. 10/10 Page 21 of 35 FIR No.2/10 PS Special Cell can get his associate Mangal, a resident of Dwarka arrested and also get recovered heroin from the residence of accused Mangal there is not a word in the said disclosure that this accused is aware of the actual/specific address of accused Mangal in Dwarka. All the three police officials PW3 HC Bijender Singh, PW5 ASI Samsher Singh and PW17 Satender Vashisht, the main investigating officer were questioned by the defence as to how the raiding team had reached the house of accused Mangal in Dwarka and thereafter to the office of Fedex Courier, Mehrauli Road, Gurgaon and very interestingly, all the said police officials have a different story to tell. Though according to PW5 ASI Samsher Singh accused Zakir @ Sameer had told the raiding team that accused Mangal @ Durgesh would be available in H.No. 120, Sector 16, First floor, Dwarka and that is the reason that the raiding team had gone to the said house, IO Satender Vashisht is categorical in his deposition that the residential address of accused Durgesh had not been disclosed by accused Zakir and the same was not known to them and that the raiding team had itself gone to sector 16, Dwarka for search of accused Durgesh. PW3 HC Bijender Singh on the other hand has stated that the raiding team had gone to sector 16A, Dwarka but had not gone inside any particular house. Similarly when all the said police officials are asked as to how did the raiding team come to know that accused Mangal @ Durgesh would be available at the SC No. 10/10 Page 22 of 35 FIR No.2/10 PS Special Cell office of Fedex Courier, Gurgaon through PW3 HC Bijender Singh and PW5 ASI Samsher Singh have stated that IO Satender Vashisht had come to know about the availability of accused Durgesh @ Mangal at the office of Fedex Courier in Gurgaon from some public persons in Dwarka, the IO PW Satender Vashisht himself has stated that infact a secret informer had come to meet him at sector 16, Dwarka and had informed him that accused Durgesh had gone to the office of Fedex Courier company, Mehrauli Road, Gurgaon. Not only has the prosecution failed to explain the said discrepancy between the statements of the aforementioned police officials, admittedly the asserted secret information received by SI Satender Vashisht was not even reducing into writing in any document whatsoever. It is also to be taken note of that all the aforementioned three police officials are not even consistent with respect to the proceedings conducted at the office of Fedex Courier, Mehrauli Road, Gurgaon. Though PW3 HC Bijender Singh and PW17 SI Satender Vashisht are categorical in stating that the members of the raiding team had not gone inside the office of Fedex Courier and no enquiries were made from the persons working at Fedex office, PW5 ASI Samsher Singh has categorically and specifically stated that infact the accused Mangal after being apprehended, was taken inside the said courier office and there the IO had made enquiries from the employees of courier company and the SC No. 10/10 Page 23 of 35 FIR No.2/10 PS Special Cell name of one of said employees is Raj Kumar and that all the members of the raiding team remained present in the office of courier company for about an hour.
26.It is also to be taken note of that the other material aspect on which the police officials have deposed incorrect facts before this court are about taking the accused Mangal and Zakir to the office of KPS International Courier Company, Tilak Nagar. All the three aforementioned PWs have categorically deposed that both the accused persons were taken to the office of KPS Courier Company in the evening of 08.01.2010 and that at the said office, its owner Shakti Pawar had identified accused Durgesh @ Mangal as the person who had booked with him two parcels for consignment to South Africa on 07.01.2010 and that thereafter in the presence of both the accused persons and Shakti Pawar and his father, two parcels allegedly booked by accused Durgesh were opened and 12 taps were recovered from each of the parcels and on opening all the taps, 18 of the said taps were found concealing in the cavity of their heads some brown colour powder. As per the further deposition of all the aforementioned three witnesses, all the powder from all the taps was collected together, samples were drawn and all the remaining powder was duly sealed. Now contrary to the deposition of these three police officials is the deposition of courier owner PW2 Shakti Pawar. This witness has SC No. 10/10 Page 24 of 35 FIR No.2/10 PS Special Cell categorically stated that on 08.01.2010, only the police officials had come to his office and that the accused Durgesh @ Mangal had not come with them and that he had not identified him in his office. This witness has inter alia deposed that on 08.01.2010 some police officials had come to his office and had asked him about some parcels booked with him on 07.01.2010 and that on request of the police officials he had handed over the said two parcels to the police officials and thereafter both the parcels were opened by the police officials in his presence and each of the parcels was found to contain 12 taps and each tap was found wrapped in transparent polythene. Further though he has deposed that the caps of some of the taps were broken and were found to contain some powder like material, according to his deposition, the police officials had not checked all the taps in his presence and nor was the said powder checked in his presence nor were any samples drawn therefrom. He has also categorically deposed that the police had not weighed the powder recovered from the taps in his presence and had neither informed him that the powder had tested positive for heroin. On being confronted with the seizure memo Ex.PW2/E, he has stated that the police had told him to sign on three documents and at the instance of the police officials, he had signed them. This witness has also supported the case of the prosecution to the extent that he has stated that the person who had booked the parcel SC No. 10/10 Page 25 of 35 FIR No.2/10 PS Special Cell with him on 07.01.2010 had written his name alongwith his address and contents of the parcel on a register maintained in his courier company and he has identified the said register during his deposition in court. He has also fairly deposed that it is not possible for him to remember all the clients who come to his office on each particular date and that therefore he cannot state whether accused Durgesh was the one who had come to his office on 07.01.2010 to book the parcels but the height and physique of the accused Durgesh @ Mangal perhaps appear to be the same as that of the person who had come to book the parcel with him. Now, the contention of the Ld. APP is that this court must discard the part of the testimony of this witness where in he has not supported the version of the prosecution. In the considered opinion of this court, the prosecution cannot be allowed to contend that the part testimony of PW2 wherein he has deposed that only the police officials had come to his office and had taken away the parcels without testing the powder recovered from the same and without drawing samples and sealing the contraband, be discarded by this court and that his testimony that it was perhaps the accused Mangal only who had come to his office to book the parcels and had written in his own handwriting his name, address, etc in the log register, be accepted completely. In the considered opinion of this court, the entire testimony of PW2 has a ring of truth about it and he does not at SC No. 10/10 Page 26 of 35 FIR No.2/10 PS Special Cell all appear to be a witness who has deposed either at the instance of the prosecution or has been won over by the accused. He is an independent public witness who has clearly deposed about the facts that he had actually witnessed and therefore his testimony has to be accepted completely and cannot be discarded in parts as contended by the State. Since his deposition makes it very clear that neither was the accused Durgesh brought to his office on 08.01.2010 nor was the powder recovered from the taps in his presence and nor were the samples drawn out at the spot, the accused persons cannot at all be convicted for the alleged recovery of contraband made from the parcels booked by accused Durgesh @ Mangal, for the said entire recovery becomes completely vitiated in view of the non drawing of the samples and non sealing of the contraband at the spot. The Apex Court of this country has laid down in its various pronouncements that in cases arising out of the provisions of the NDPS Act, the courts have to take care to see that the safeguards provided in the statute have been scrupulously followed by the investigating agency and that the prosecution in such cases is under a duty to prove satisfactorily and beyond reasonable doubt that the substance recovered from an accused was properly sealed at the spot, preserved in safe custody and then sent for analysis. In a very recent case titled as Kuldeep Singh Vs State of Punjab reported in 2011 Cr. L. J. 2672 where the facts were SC No. 10/10 Page 27 of 35 FIR No.2/10 PS Special Cell inter alia that seized bags of contraband sealed at the spot were reopened at the police station for drawing out of samples, it was held by Hon'ble Supreme Court that the entire search and seizure procedure in such facts stands vitiated and the accused is liable to be acquitted. The Hon'ble Supreme court taking note that the case property once sealed was reopened held that the entire search and seizure proceedings stood vitiated. The said judicial dicta makes it clear that for want of drawing out samples and sealing of contraband in the office of M/s KPS International, the entire search and seizure proceedings conducted with respect to the parcels seized in the aforementioned stands vitiated and the accused persons cannot be convicted for the said alleged recovery.
27.Coming now to the recovery assertedly made from accused Zakir @ Sameer, it has been rightly contended by Ld. Legal Aid Counsel Sh. Qazi that this court must examine the evidence produced by the prosecution even against accused Zakir @ Sameer very cautiously and carefully for if the police officials could manipulate documents and depose false facts with respect to the apprehension of accused Durgesh @ Mangal and with respect to search and seizure proceedings, there is no reason that they would not have done the same with respect to accused Zakir. As narrated hereinabove, the defence of this accused is that he had been arrested only because he had visited three Pakistani citizens at the detention center, SC No. 10/10 Page 28 of 35 FIR No.2/10 PS Special Cell Lampur and thereafter the said three Pakistani citizens had absconded. In fact, as per the version put forward by the prosecution itself, 56 days prior to the apprehension of the accused, Inspector Attar Singh had deputed ASI Rakesh Kumar, Ct. Rajbir and HC Dilawar Singh to make enquiry against the accused. All the said three police officials in their depositions have stated that Inspector Attar Singh had also informed that there was possibility of Zakir @ Sameer being involved in trafficking of drugs however admittedly neither has Inspector Attar Singh been produced in the witness box nor the alleged information with Inspector Attar Singh about possible involvement of accused Zakir in trafficking of drugs has been placed before this court.
28.Apart from the above, it is also to be taken note of that despite the fact that accused Zakir is shown to have apprehended in the morning hours at Rithala Metro Station, the raiding party was unable to join even one public witness in its proceedings. Though as per the deposition of the main IO ASI Rakesh Kumar, he had requested 14 public persons 4 passersby outside the office of Special Cell, 3 passersby at Rajeev Gandhi Cancer Institute, 4 passersby and 3 rickshaw pullers near Rithala Metro Station to join the proceedings and none of them agreed to, it is indeed strange that though the IO Rakesh Kumar thought it necessary to ask 14 passersby to join the raiding team, he did not make any efforts to join an official of the SC No. 10/10 Page 29 of 35 FIR No.2/10 PS Special Cell metro station in the proceedings. Despite a specific query by his court to Ld. APP as to why the investigating agency only asked passersby at the bus stop and did not make an effort to join in the proceedings, the officials of metro station which is allegedly the spot of apprehension of the accused, so that both the investigating agency and the court could have been made aware of the addresses of such officials of the metro station who refused to accede to the request of a government public official, there is no explanation in this regard forthcoming from the prosecution. It will not be out of place to mention herein that in all of the Special Cell cases tried by this court, there is not a single case where the investigating officer has been able to join a public witness in the proceedings though in all NCB cases, the said investigating agency is able to make public witnesses join their investigation. No doubt, one cannot argue with the contention of Ld. APP that public persons are hesitant to join police proceedings, but the least that is expected is that the investigating agency must be able to satisfy the court that genuine and sincere efforts were made by the investigating officer to make public persons join the proceedings.
29.It has been repeatedly held by the higher courts that in such cases as the present one, the investigating agency must show that sincere efforts were made to join independent witnesses and that the investigating agency cannot merely take a stand that public witnesses refused to join the SC No. 10/10 Page 30 of 35 FIR No.2/10 PS Special Cell investigation. In this regard particular reference is made to the judgments reported as Ritesh Chakravarty Vs. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150, Anup Joshi Vs. State 1999(2) C.C. Cases 314, Roop Chand Vs. State of Haryana 1999(1) C.L.R 69. In Ritesh's case (supra), the Hon'ble Supreme Court has depreciated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on request of the police officials. In the other two judgments, it has been observed by the Hon'ble High Courts that the failure to proceed against the public persons who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence.
30.Further apart from the fact that in the present case, no genuine efforts appear to have been made to join independent witnesses in the search and seizure proceedings that were assertedly conducted with respect to the apprehension of accused Zakir, which in itself creates a grave doubt on the version put forward by the prosecution, it will also need to be observed that the deposition of HC Rajbir, one of the members of the raiding team hardly inspires any confidence. This witness in his crossexamination has stated that the substance recovered from accused Zakir on being tested SC No. 10/10 Page 31 of 35 FIR No.2/10 PS Special Cell with Field Testing Kit turned into coca cola colour and was found to be heroin. Now admittedly as per the chart available with the narcotic drugs detection kit (filed on record), if a substance is heroin then its colour on being mixed with the chemical in the Field Testing Kit would change to pink/violet but not to coca cola. By no stretch of imagination can a shade of pink/violet be confused with the colour of coca cola, which is almost black. The said discrepancy in the statement of HC Rajbir cannot be stated to be minor and irrelevant, for in a criminal case, in the absence of public witnesses, an accused has no other way to show that a false case has been foisted on his except to show that the witnesses examined by the prosecution are not telling the truth when they make discrepant statements on material aspects of the case. It also cannot be lost sight of that in the present case, the FSL report proved on record shows that the samples drawn from 500 gm of substance allegedly recovered from accused Zakir was only found to contain 1.4% of diacetylmorphine i.e. in other words only about 5 gm of heroin was allegedly recovered from this accused. Similarly though 300 gm of heroin has been shown to have been recovered from the parcels allegedly booked by accused Durgesh, the percentage of diacetylmorphine found therein is only 1.4%. No doubt in view of the notification dated 18.11.2009, issued by the Central Government, this court is not to consider the pure drug content of the SC No. 10/10 Page 32 of 35 FIR No.2/10 PS Special Cell heroin alone in the mixture of 500 gm and 300 gm, but the very small percentage of heroin found to be present in the substance allegedly recovered from the accused persons is a fact which is being rightly relied upon by the accused persons in the present case to support their contention that they have been falsely implicated and the contraband has been planted upon them. It can also not be ignored that there is no explanation forthcoming from the prosecution as why did the members of the raiding team apprehend accused Zakir immediately on being pointed out by the secret informer and why the investigating officers did not think it necessary to wait at the spot for accused Mangal @ Durgesh for the secret information allegedly received by the investigating agency was that Zakir @ Sameer would be coming to the spot to deliver heroin to Mangal. The call detail records of the mobile phones of the accused persons relied upon by the Ld. APP to contend that the accused persons were in conspiracy with each other have no relevance whatsoever for both the accused persons have admitted that they were known to each other, being in the same business of selling of bags.
31.In the considered opinion of this Court, the facts and attendant circumstances that have come on record during trial of this case, raise a grave doubt on the veracity of the case of the prosecution and it is clear that in the present case, the investigating agency has not followed the SC No. 10/10 Page 33 of 35 FIR No.2/10 PS Special Cell statutory provisions of the NDPS Act and has not been able to prove its case beyond all reasonable doubt.
32.It has been repeatedly reiterated by the Hon'ble Supreme Court in its various judgments that it must be borne in mind that severer the punishment, greater has to be the care taken to be seen that the case of the prosecution is proved beyond all reasonable doubt. In State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed". The Apex Court in the case of Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. It has also been observed by the Hon'ble Supreme Court in the said case that though the standard of proof required to prove the guilt of the accused on the prosecution is 'beyond all reasonable doubt.'
33.In view of the detailed discussion hereinabove, it is hereby held that the SC No. 10/10 Page 34 of 35 FIR No.2/10 PS Special Cell prosecution has failed to prove its case against the accused persons beyond reasonable doubt and therefore the accused persons are hereby acquitted of the offences that they have been charged with. Announced in open Court on this 5th day of June, 2013 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi SC No. 10/10 Page 35 of 35