Delhi District Court
State vs . Saroj & Anr. on 2 January, 2023
IN THE COURT OF SH. DEEPAK WASON:
SPL. JUDGE (NDPS): DWARKA COURTS: NEW DELHI
SC No. 114/2018
FIR No. 916/2017
PS: Uttam Nagar
U/s. 20/29 of the NDPS Act
State vs. Saroj & Anr.
Date of Institution of case:-12.12.2018
Date of arguments:-02.01.2023
Date on which Judgment pronounced:-02.01.2023
JUDGMENT
CNR No. :DLSW01-003498-2018
Date of commission of the offence :11.12.2017
Name of complainant :ASI Satyapal
Name and address of accused 1. Saroj Kumar
S/o Sh. Radhey Shyam
R/o Plot No.1, Om Vihar,
Phase-I, Uttam Nagar,
New Delhi.
2. Sachin
S/o Sh. Nand Pal
R/o Plot No.1, Om Vihar,
Phase-I, Uttam Nagar,
New Delhi.
Offence complained of : 20 (b) (ii) (B) &
Section 29 NDPS Act
Plea of accused :Pleaded not guilty
Date of order :02.01.2023
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 11.12.2017, ASI Satyapal was posted at Vigilance Unit, Dwarka and on that day, ACP Vigilance received a secret information regarding sale of drug at Uttam Nagar near pillar No.701, Om Vihar Phase-I upon which ACP Vigilance issued direction for local inquiry and on the basis of the SC No. 1142018 State Vs. Saroj & Anr. Page 1 of 26 direction, ASI Satyapal along with Ct. Rajender conducted a raid as Search Warrants were issued by ACP Sh. Dharmpal Singh and thereafter, ASI Satyapal along with Ct. Rajender proceeded for raid from the Office of Vigilance and at about 8:00 p.m, reached at Plot No. 1, Phase-I. Om Vihar, Uttam Nagar, Delhi. It is further the case of the prosecution that one person was present there and after seeing them, the said person tried to flee away but was apprehended by ASI Satyapal and Ct. Rajender after and the said person revealed his name as Saroj Kumar. It is further the case of the prosecution that thereafter, ASI Satyapal called the beat staff of PS Uttam Nagar. It is further the case of the prosecution that thereafter, HC Hazari Lal who was on patrolling duty in the area reached the spot. It is further the case of the prosecution that thereafter, they entered into the house i.e. near pillar No. 701. Om Vihar Phase-I, Plot No.1 for search where they found one black polythene packet in the room on the bed containing substance looked like Ganja and on checking and from its physical appearance, the recovered substance appeared to be Ganja and thereafter, they searched the house and found 04 more polythene packets containing Ganja
2. It is further the case of the prosecution that on receiving DD No. 84A, SI Satyawan also reached the spot where SI Satyawan met ASI Satyapal with beat staff and accused Saroj and ASI Satyapal produced accused Saroj before SI Satyawan along with five black polythene packets containing ganja. It is further the case of the prosecution that thereafter, SI Satyawan weighed the recovered ganja with the help of an electronic weighing machine and it was found to be 10 kg and separately weighed all the 05 empty black polythenes and it was found to be 20 grams. It is further the case of the SC No. 1142018 State Vs. Saroj & Anr. Page 2 of 26 prosecution that SI Satyawan gave mark to all 05 polythenes and the weight of recovered ganja without the polythene and it was found to be 9 kg and 980 grams. Thereafter, SI Satyawan put all ganja in 04 transparent plastic jars and gave mark out of which, SI Satyawan took sample of 980 grams and separately sealed with the help of the doctor tape in a plastic jar and sealed with the seal of 'SB'. It is further the case of the prosecution that the other plastic jars i.e. B, C, D and E were also sealed with the help of the doctor tape and same was sealed with the seal of 'SB' and filled FSL form at the spot. It is further the case of the prosecution that SI Satyawan seized the case property and all the 05 empty black polythenes. It is further the case of the prosecution that SI Satyawan requested few passers by to join the investigation, however, all of them refused and left the spot without disclosing their names and addresses. Thereafter, SI Satyawan prepared notice under Section 50 of the NDPS Act and the duplicate carbon copy of the notice was served to the accused and obtained the reply of the accused on the original wherein the accused replied that he did not want to be searched in the presence of Magistrate and Gazetted Officer as ganja was already recovered by the police. In the meantime, SHO KP Malik reached at the spot and SHO inquired from the accused. It is further the case of the prosecution that SI Satyawan handed over all the sealed pullandas and carbon copy of the seizure memo and the FSL form to the SHO for the compliance under Section 55 of the NDPS Act and thereafter, SHO left the spot. Thereafter, SI Satyawan recorded the statement of ASI Satyapal and on the basis of statement of ASI Satyapal, SI Satyawan prepared rukka under Section 20 of the NDPS Act and handed over to HC Hazari Lal for the registration of the FIR and after the registration of the FIR, HC Hazari Lal returned back at the spot and handed over the copy of FIR and SC No. 1142018 State Vs. Saroj & Anr. Page 3 of 26 original rukka to SI Satyawan and SI Satyawan prepared site plan at the instance of ASI Satyapal. Thereafter, SI Satyawan interrogated accused Saroj and after interrogation, arrested him, conducted his personal search and recorded the disclosure statement of the accused. It is further the case of the prosecution that thereafter, the accused was produced before the Court and was sent to JC after medical examination. On 12.12.2017, SI Satyawan sent intimation under Section 57 of the NDPS Act to the ACP, Dabri, forwarded by SHO Uttam Nagar. Thereafter, on 08.01.2018, SI Satyawan alongwith HC Sher Singh, were on emergency duty and in the investigation of the present case, they reached at plot no. 1, Phase-1, Om Vihar, Uttam Nagar where SI Satyawan met one person whose name was revealed as Sachin and after interrogation, accused Sachin was arrested, conducted his personal search and recorded his disclosure statement and took accused Sachin for his medical examination at DDU hospital and after the medical examination, accused Sachin was produced before the Court and was sent to JC. After one day PC remand, SI Satyawan recorded the statement of witnesses. Thereafter, on 09.01.2018, samples were sent to FSL Rohini, through Ct. Surender. It is further the case of the prosecution that on 14.01.2018, SI Satyawan formally arrested accused Pooja as accused Pooja was on anticipatory bail. Thereafter, SI Satyawan prepared the charge-sheet and sent to the Court. Later on, SHO Uttam Nagar, filed FSL result before the Court.
3. It is matter of record that during the arguments on charge, arguments were heard at length and vide detailed order dated 27.03.2018, co-accused Pooja was discharged from the present case.
4. Vide order dated 27.03.2018, the charge for the offences SC No. 1142018 State Vs. Saroj & Anr. Page 4 of 26 under Section 20 (b) (ii) (B) of the NDPS Act was framed against accused Saroj Kumar on the allegations that the accused was found in possession of 9 Kg 980 grams of Ganja in 5 polythene packets to which accused Saroj Kumar pleaded not guilty and claimed trial. On the same day, another charge for the offence under Section 29 of the NDPS Act was framed against accused Sachin on the allegations that the co-accused Saroj Kumar was found in possession of 9 Kg 980 grams of Ganja in 5 polythene packets and the same house belongs to him and was under his control and supervision to which accused Sachin pleaded not guilty and claimed trial.
5. The prosecution examined 13 witnesses in support of its case who are as follows:-
6. PW-1 is Head Constable Kamlesh Singh. He is the Duty Officer and has proved the FIR as Ex. PW-1/A and endorsement on the rukka as Ex. PW-1/B and his certificate under Section 65B of Indian Evidence as Ex. PW-1/C. This witness was not cross-examined by the Ld. defence counsel.
7. PW-2 is Constable Rajender Kumar. He has deposed on the lines of ASI Satyapal whose testimony would be considered as below. This witness was also cross-examined by Ld. defence counsel.
8. PW-3 is ASI Satyapal. He has deposed that on 11.12.2017, he was posted at Vigilance Unit, Dwarka and on that day, ACP Vigilance received a secret information regarding sale of drug at Uttam Nagar near pillar No.701. Om Vihar Phase-I upon which ACP Vigilance issued direction for local inquiry and on the basis of the SC No. 1142018 State Vs. Saroj & Anr. Page 5 of 26 direction, he along with Ct. Rajender to conduct a raid and before raid, Search Warrants were issued by ACP Sh. Dharmpal Singh, Mark X and thereafter, he along with Ct. Rajender proceeded for raid from the Office of Vigilance and at about 8:00 p.m, reached at Plot No. 1, Phase-I. Om Vihar, Uttam Nagar, Delhi. He has further deposed that after seeing them, one person tried to flee away but was apprehended by him and Ct. Rajender after running few steps and the said person revealed his name as Saroj Kumar. He has further deposed that thereafter, he called the beat staff of PS Uttam Nagar. He has further deposed that thereafter, they entered into the house i.e. near pillar No.
701. Om Vihar Phase-I, Plot No.1 for search where they found one black polythene packet in the room on the bed containing substance looked like Ganja and on checking and from its physical appearance, the recovered substance appeared to be Ganja and thereafter, they searched the house and found 04 more polythene packets containing Ganja and in the meantime, SI Satyawan also reached there and they handed over all five plastic packets of Ganja and accused Saroj to SI Satyawan. He has further deposed that thereafter SI Satyawan weighed the recovered ganja with the help of electronic weighing machine and it was found to be 10 kg in total. He has further deposed that thereafter IO separately weighed all the five empty black polythenes and it was found to be 20 gram and gave mark A to all the five polythenes and the weight of recovered Ganja (without polythene) was found to be 9.980 kg. He has further deposed that thereafter IO put all Ganja i.e 9.980 g in 04 plastic jars and gave mark B, C, D and E. He has further deposed that IO took sample of 980 grams and separately sealed in a plastic jar with the seal of 'SB' and other plastic jar i.e B, C, D, E were also sealed with the help of the doctor tape and sealed with the seal of SB. He has further deposed that the IO filled SC No. 1142018 State Vs. Saroj & Anr. Page 6 of 26 FSL form at the spot, seized the case property vide memo Ex. PW-2/A and also seized all 05 empty black polythenes, vide seizure memo Ex. PW-2/B. He has further deposed that IO recorded his statement Ex. PW-3/A and prepared rukka on the his statement as Ex. PW-3/A and handed over the same to HC Hazari Lal for the registration of the FIR and proceedings under Section 55 of the NDPS Act along with the sealed pullanda. He has further deposed that notice under Section 50 of the NDPS Act was served to the accused prior to his search, same is Ex.PW3/B. He has further deposed that after the registration of the FIR, HC Hazari Lal returned back to the spot and thereafter, IO prepared the site plan as Ex.PW3/C and thereafter, he left the spot. He has further deposed that IO recorded his statement. This witness was also cross-examined by the Ld. defence counsel.
9. PW-4 is Retd. ACP Dharampal Singh. He has deposed that on 11.12.2017, he was posted as a ACP DIU and also looking after the work of ACP / PG and on that day, ASI Satyapal shared a secret information regarding narcotic substance lying at Plot No. 1, Om Vihar. Phase-1. Uttam Nagar, New Delhi and after satisfaction, he issued search warrants under 41 NDPS Act Mark X for searching the above-said report. This witness was also cross-examined by the Ld. defence counsel.
10. PW-5 is Sub-Inspector Sanjeev. He has proved the intimation under Section 57 of the NDPS Act sent by SI Satyawan as Ex. PW-5/A and the entry made at serial no. 7420 in diary register regarding the receipt of aforesaid report as Ex. PW-5/B. This witness was also cross-examined by the Ld. defence counsel.
SC No. 1142018 State Vs. Saroj & Anr. Page 7 of 2611. PW-6 is ASI Shivanand. He is the MHC(M) and has proved the relevant entries made at serial no. 4957 in register no. 19 as Ex. PW-6/A and Ex. PW-6/A (now be read as PW-6/X). He has also proved the RC No.5/21/18 as Ex. PW-6/B and copy of receipt from FSL as Ex. PW-6/C. This witness was also cross-examined by the Ld. defence counsel.
12. PW-7 is Head Constable Surender Singh Yadav. He has deposed that on 09.01.2018, on the instruction of the IO, he had taken the pullanda sealed with the seal of 'SB' and 'KP' pertaining to this case and deposited the same at FSL Rohini vide RC No. 5/21/18 as Ex. PW-6/B and after depositing the same, handed over the receipt to MHCM as Ex. PW-6/C. He has further deposed that till the pullanda remained in his custody, the same was not tampered with. This witness was also cross-examined by Ld. defence counsel.
13. PW-8 is ACP K.P. Malik. He has deposed that on 11.12.2017, he was posted as SHO PS Uttam Nagar and on that day, at about 9:50 p.m, during patrolling, he along with his staff reached at the spot where he met SI Satyawan along with HC Hazari Lal and accused Saroj and they produced the accused before him. He has further deposed that he inquired from accused Saroj. He has further deposed that SI Satyawan produced four sealed plastic containers and one other plastic container of sample and one pullanda of empty polythene and FSL form and all the containers and the pullandas were sealed with the seal of SB and he counter signed the seizure memo of case property as Ex.PW-2/B and took the sealed case property at the police station where he counter sealed the pullandas and containers with the seal of 'KP' and deposited the same in the malkhana. He has SC No. 1142018 State Vs. Saroj & Anr. Page 8 of 26 further deposed that on 12.12.2017, IO/SI Satyawan sent and intimation under Section 57 of NDPS Act as Ex. PW-5/A to ACP which was forwarded by him. This witness was also cross-examined by the Ld. defence counsel.
14. PW-9 is Head Constable Namo Narayan. He has deposed that on 09.01.2018, he was posted at PS Uttam Nagar and on that day, he joined the investigation along with IO / SI Satyawan and he along with SI Satyawan and accused Sachin reached at Subhash Nagar for the recovery, however accused Sachin had not cooperated properly and nothing was recovered and thereafter, they returned to the police station. He has further deposed that IO recorded his statement. This witness was also cross-examined by the Ld. defence counsel.
15. PW-10 is ASI Sher Singh. He has deposed that on 08.01.2018 he was posted as a Head Constable and on that day, he was on emergency duty along with SI Satyawan and in the investigation of the present case, they reached at the spot where SI Satyawan met one person whose name was revealed as Sachin and after interrogation, accused Sachin was arrested vide memo Ex. PW-10/A and thereafter, SI Satyawan conducted his personal search vide memo Ex. PW-10/B and recorded his disclosure statement vide memo Ex. PW-10/C. He has further deposed that thereafter, they took accused Sachin for his medical examination at DDU hospital and after the medical examination, accused Sachin was produced before the court and was sent to JC and they returned to the police station. He has further deposed that IO recorded his statement. This witness was cross- examined by Ld. defence counsel.
SC No. 1142018 State Vs. Saroj & Anr. Page 9 of 2616. PW-11 is Sub-Inspector Satyawan. He has deposed that on 11.12.2017, on receiving DD No. 84A Mark X, he reached at the spot i.e. plot no. 1, Phase-1, Uttam Nagar, where he met ASI Satyapal with beat staff and accused Saroj and ASI Satyapal produced accused Saroj before him along with five black polythene packets containing Ganja. He has further deposed that thereafter, he weighed the recovered ganja with the help of the electronic weighing machine and it was found to be 10 kg. He has further deposed that thereafter, he separately weighed all the 05 empty black polythenes and it was found to be 20 grams. He has further deposed that he gave Mark A to all 05 polythenes and the weight of recovered ganja without polythene was found to be 9 kg and 980 grams. He has further deposed that thereafter, he put all ganja i.e. 9 kg 980 grams in 04 transparent plastic jars and gave Mark B, C, D and E, out of which he took sample of 980 grams and separately sealed with the help of the doctor tape in a plastic jar and sealed with the seal of 'SB'. He has further deposed that the other plastic jars i.e. B, C, D and E were also sealed with the help of the doctor tape and same was sealed with the seal of 'SB' and filled FSL form at the spot. He has further deposed that he seized the case property vide memo Ex. PW2/A and also seized all the 05 empty black polythene vide seizure memo Ex.PW2/B. He has further deposed that he requested few passers by to join the investigation, however, all of them refused and left the spot without disclosing their names and addresses. He has further deposed that thereafter, he prepared notice under Section 50 of the NDPS Act as Ex. PW-3/B and the duplicate carbon copy of the notice was served to the accused and he obtained the reply of the accused on the original as Ex.PW11/A wherein he replied that he did not want to be searched in the presence of Magistrate and Gazetted Officer as ganja was already recovered by the SC No. 1142018 State Vs. Saroj & Anr. Page 10 of 26 police. He has further deposed that in the meantime, SHO KP Malik reached at the spot and SHO inquired from the accused. He has further deposed that he handed over all the sealed pullandas and the carbon copy of the seizure memo and the FSL form to the SHO for the compliance under Section 55 of the NDPS Act and thereafter, SHO left the spot. He has further deposed that thereafter, he recorded the statement of ASI Satyapal as Ex.PW3/A and on the basis of statement of ASI Satyapal, he prepared rukka under Section 20 of the NDPS Act as Ex.PW-11/B. He has further deposed that the rukka was handed over to HC Hazari Lal for the registration of the FIR and after the registration of the FIR, HC Hazari Lal returned back at the spot and handed over to him the copy of FIR and original rukka and prepared site plan at the instance of ASI Satyapal as Ex.PW3/C. He has further deposed that thereafter, he interrogated accused Saroj and after interrogation, arrested the accused vide arrest memo Ex. PW-11/C, conducted his personal search as Ex. PW- 11/D and during his personal search, notice under Section 50 of the NDPS Act and Rs. 460 were recovered and recorded the disclosure statement of the accused as Ex.PW-11/E. He has further deposed that thereafter, the accused was produced before the Court and was sent to JC after medical examination. He has further deposed that on 12.12.2017, he sent intimation under Section 57 of the NDPS Act to the ACP, Dabri, forwarded by SHO Uttam Nagar as Ex.PW5/A. He has further deposed that on 08.01.2018, he alongwith HC Sher Singh, were on emergency duty and in the investigation of the present case, they reached at plot no. 1, Phase-1, Om Vihar, Uttam Nagar where he met one person whose name was revealed as Sachin and after interrogation, accused Sachin was arrested vide arrest memo Ex. PW- 10/A and conducted his personal search vide memo Ex. PW-10/B and SC No. 1142018 State Vs. Saroj & Anr. Page 11 of 26 recorded his disclosure statement vide memo Ex. PW-10/C and thereafter, they took accused Sachin for his medical examination at DDU hospital and after the medical examination, accused Sachin was produced before the Court and was sent to JC and after one day PC remand, he recorded statement of witnesses. He has further deposed that on 09.01.2018, samples were sent to FSL Rohini, through Ct. Surender vide RC No.5/21/18 as Ex.PW6/B. He has further deposed that on 14.01.2018, he formally arrested accused Pooja vide arrest memo Ex.PW-11/F as accused Pooja was on anticipatory bail. He has further deposed that thereafter, he prepared the charge-sheet and sent to the Court and later on, SHO Uttam Nagar, filed FSL result before the court. This witness was cross-examined by the Ld. defence counsel.
17. PW-12 is Dr. Subhash Chander, Sr. Scientific Officer (Chemistry) FSL Rohini, New Delhi. He has proved the detailed report of examination as Ex.PW-12/A. This witness was also cross- examined by Ld. Defence counsel.
18. PW-13 is ASI Hazari Lal. He has deposed that on 11.12.2017, he was on the patrolling duty and on the request of ASI Satyapal, he reached the spot where he met ASI Satyapal, Ct. Rajender along with one Saroj and joined the investigation in the present case and has deposed on the lines of PW-3 ASI Satyapal and PW-11 SI Satyawan. This witness was cross-examined by the Ld. defence counsel.
19. It is a matter of record that thereafter, prosecution evidence was closed vide order dated 23.11.2022 and on 09.12.2022, SC No. 1142018 State Vs. Saroj & Anr. Page 12 of 26 the statement of the both the accused persons under Section 313 Cr.P.C have been recorded whereby all the incriminating evidence was put to them to which they stated that they are innocent and have been falsely implicated in the present case. During the recording of the statements of both the accused persons, both accused persons did not wish to lead defence evidence and final arguments were heard.
20. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
FINDINGS:
21. The record of the present case reveals that it is alleged against accused Saroj that she was found in possession of an intermediate quantity of contraband i.e 9 Kg 980 grams of Ganja in 5 polythene packets. It is alleged against accused Sachin that co-accused Saroj was found in possession of 9 Kg 980 grams of Ganja which was kept in the house and the same house belonged to him and was under
his control and supervision. The stringent provisions are provided under the law qua the punishment, especially in the NDPS cases. The scheme of the NDPS Act and its objects and reasons mandate that the prosecution must prove compliance with various safeguards ensured under the Act. The NDPS Act prescribes stringent punishment and therefore, the balance must be struck between the need for the law and the enforcement of such law on one hand and the protection of the citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on the exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband. In the present case, accused Saroj was apprehended from Plot No. I, Phase-I, Om Vihar, SC No. 1142018 State Vs. Saroj & Anr. Page 13 of 26 Uttam Nagar, New Delhi, and was found in possession of an intermediate quantity of Ganja. Hence, it has to be proved that accused Saroj was found in possession of the contraband i.e Ganja from the house of co-accused Sachin which was under his control and supervision. The record reveals that no independent public person was joined in the proceedings.
22. It is to be kept in mind that the non-joining of public witnesses itself cannot become a ground for acquittal if the case of the prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution cannot be held to be vulnerable to non-examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution cannot be disbelieved. The proposition is not disputed but the balance has to be maintained if some doubt is created regarding the involvement of the accused persons. Each case has its facts and circumstances.
23. Accordingly, it is trite that mere failure to associate public witnesses in search and seizure proceedings is not fatal to the case of the prosecution. However, in such a case, the burden lies heavily on the prosecution to prove two things. Firstly, a genuine and sincere effort was made by the investigating officer to join independent persons in the proceedings and secondly, the evidence of the official witnesses does not suffer from any infirmity.
SC No. 1142018 State Vs. Saroj & Anr. Page 14 of 2624. In the present case, as per the story of the prosecution, on 11.02.2017 on the directions of ACP Vigilance, ASI Satyapal along with Ct. Rajinder reached at Plot no.1, Phase-I, Om Vihar, Uttam Nagar, Delhi and apprehended accused Saroj with illegal contraband. Though in the present case, it has been tried to be brought on record from the testimony of prosecution witnesses that sincere efforts were made to join the public witnesses but none of them were inclined to join.
25. The testimonies of the members of the raiding team suffer from contradictions and it is evident therefrom that the witnesses have remained evasive on material aspects. As far as the testimonies of witnesses about the joining of independent witnesses are concerned, PW-2 Ct. Rajender Kumar has deposed in his cross-examination that in his presence, no public person was called by the IO, however, various public persons were passing through the place. He has further deposed that there was one market near the spot. PW-13 ASI Hazari Lal has deposed in his cross-examination that the spot was a street and various neighbourers were passing through the street. He has further deposed that SI Satyawan requested them to join the proceedings but all of them refused and no legal action was taken against them. Hence, from the examination of the above witnesses, it is evident that public persons were present at the spot but the perusal of the cross- examination of witnesses shows that neither any sincere efforts have been made by the IO to join any public person in the investigation nor served any notice to them for non-joining the investigation although remained at the spot for a considerable period.
26. Admittedly, the police officials remained on the spot for a SC No. 1142018 State Vs. Saroj & Anr. Page 15 of 26 considerable time and the IO had ample time to join the independent person in the proceedings. It is the case of the prosecution that public persons were requested to join the proceedings but they declined. It is a quite surprising fact that despite the availability of public witnesses, the investigating agency could not associate even a single public witness at any stage of the investigation. It has been stated casually and routinely that the public persons, who were asked to join the investigation, declined to do so and went away without disclosing their names and addresses. Sub-section (8) of Section 100 Cr.P.C clearly states that if a public witness refuses or neglects to attend a search without reasonable cause despite an order in writing, he shall be deemed to have committed an offence under Section 187 IPC. There is nothing on record to indicate that the investigating officer had served or even attempted to serve any order in writing upon any public witness. So much so, neither the names nor the addresses of the persons who refused to join the proceedings have been given. All the above leads to the inevitable inference that the investigating agency was not interested to make any public witness a part of the raiding team and thus there has been a deliberate disregard of the statutory safeguards relating to search and seizure on its part which renders the recovery proceedings unworthy of credence. Hence, all these facts give some doubt to the story of the prosecution.
27. Apart from this, there are various other contradictions in the testimonies of the witnesses. PW-2 Ct. Rajender Kumar has deposed in his cross-examination that they had entered into the Plot no. 1, Phase-I, Om Vihar, Uttam Nagar, Delhi of accused at about 8:00 p.m. On the contrary, PW-3 ASI Satyapal has deposed in his cross- examination that they had entered into the Plot no. 1, Phase-I, Om SC No. 1142018 State Vs. Saroj & Anr. Page 16 of 26 Vihar, Uttam Nagar, Delhi of accused at about 7:15 p.m.
28. Further, PW-2 Ct. Rajender Kumar has deposed in his cross-examination that the above said house was about 50-60 sq. meters having two rooms. He has further deposed that he was sitting on the entry gate of the house along with the accused and IO/ASI Satyapal and SI Satyawan were in second room of the house which is again in contrast to the deposition of PW-3 ASI Satyapal wherein he has deposed in his cross-examination that it was 40 sq. meters yards house and there was only one room, one bathroom and kitchen in that house and it was a single storey house whereas PW-2 HC Rajender has deposed in his cross-examination that the house was double storey. It is a very surprising fact that raiding members visited the house but they are not aware about the description of the house. It is a big dent in the story of the prosecution and the presence of the witnesses at the spot appears to be doubtful.
29. It is pertinent to mention here that the presence of PW-2 Ct. Rajender Kumar i.e one of the recovery witness is also doubtful and his testimony does not appear to be trustworthy. PW-2 Ct. Rajender Kumar has deposed in his cross-examination that he could not tell who weighed the contraband. Even, this witness could not tell the description of the weighing machine. He has deposed in his cross- examination that no document was prepared or signed any document till he and ASI Satyapal were present at the spot. The bare perusal of the record shows that seizure memo Ex.PW-2/A and Ex. PW-2/B, notice under Section 50 of the NDPS Act were prepared in the presence Ct. Rajender Kumar as well as PW-3 ASI Satyapal. The perusal of record further shows that the seizure memo Ex. PW-2/A SC No. 1142018 State Vs. Saroj & Anr. Page 17 of 26 bears the signatures of Ct. Rajender Kumar at point A and that of ASI Satyapal at point B. Apart from this, the site plan Ex. PW-3/C was also prepared at the instance of ASI Satyapal and it also bears the signatures of ASI Satyapal at point A. From the examination of this witness, it prima facie appears that he was not aware of the very material things of the case.
30. PW-3 ASI Satyapal has deposed in his cross-examination that SI Satyawan took out the sample from the contraband after taking out contraband from all the five packets and then from the heap of the collected contraband, SI Satyawan took out the sample of 980 grams. He has further deposed that the contraband was not taken out from each packet and mixed together to make out a sample of 980 grams. Although, PW-11 SI Satyawan has admitted as correct that all the ganja recovered from all 05 polythenes were mixed together and thereafter, kept in 04 plastic jars. From the record, it prima facie appears that the contraband was not taken out from each packet and mixed together to make out a sample of 980 grams and samples were not taken separately from each packet. Hence, in this case, the samples were not drawn from each packets recovered and it appears to be contrary to the procedure prescribed. At this stage, it would be relevant to go through the judgment titled as "Basant Rai vs. State"
in Crl. Appeal No. 909/2005, passed by Hon'ble High Court of Delhi on 02.07.2012. The Hon'ble High Court of Delhi has dealt with the procedure of samples in para nos. 27, 28 & 29 of the judgment as under:-
27. 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 be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two SC No. 1142018 State Vs. Saroj & Anr. Page 18 of 26 pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof 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.
28. In view of the above discussion, instant appeal is allowed.
29. Consequently, impugned judgment dated 18.10.2005 and order on sentence dated 21.10.2015 are hereby set aside.
Appellant is acquitted from the charges.
In the above mentioned case, solely on this ground, the appellant was acquitted and it was observed by the Hon'ble High Court of Delhi that it does not matter the quantity and proper procedure has to be followed, without that results would be negative.
31. In another judgment titled as "Ahmed Hassan Muhammed vs. The Customs" in bail application No. 3076/2020, passed by Hon'ble High Court of Delhi on 11.02.2021, the Hon'ble High Court of Delhi has relied upon the above said judgment i.e Basant Rai vs. State (supra) with the procedure of samples in para no. 17 of the judgment as under:-
17. In Basanti Rai (Supra), while dealing with a case where accused was found carrying a polythene bag containing 8 similar polythene bags having brown colour substance and Investigating Officer took small pieces of charas from each packet, mixed the same and drew two sample parcels which were sent to FSL for analysis, I had allowed the appeal while holding as under:-
25. After hearing both the learned counsel for parties and going through the Trial Court record, I find force in the submission of learned counsel for appellant. Admittedly, the samples were drawn after breaking small pieces from 08 of the polythene bags which were allegedly kept in a green coloured bag by the appellant in his right hand. The IO prepared two samples of 25 grams each after taking a small quantity from each of the slabs.
26. Though the settled law is that if it is not practicable to send SC No. 1142018 State Vs. Saroj & Anr. Page 19 of 26 the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted.
27. 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 be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the result would negative".
32. In the above mentioned case also, the bail application of the accused was allowed by the Hon'ble High Court of Delhi and the accused was released on bail, who was involved in commercial quantity case. In the present case also, the contraband i.e Ganja was mixed together and samples were sent to FSL for examination which is contrary to the procedure prescribed under the law and solely on this ground, both accused persons are entitled for acquittal.
33. Further, PW-11 SI Satyawan has deposed in his cross- examination no family member of the accused was present at his house and mausi of Sachin came at the house and they handed over the custody and possession of the house to her, however, he could not tell the name of the said lady. It is pertinent to mention here that except this witness, none of the other witnesses have deposed about the fact that the custody of the house was handed over to the mausi of the accused. There is also one interesting thing in the present case that the information of arrest of accused Saroj was given to co-accused Sachin and that too after recording the disclosure statement of accused Saroj wherein accused Saroj has disclosed the name of co-accused Sachin which is a serious dent in the story of the prosecution.
SC No. 1142018 State Vs. Saroj & Anr. Page 20 of 2634. Further, PW-8 ACP K.P. Malik has deposed in his cross- examination that on that day, he used the government vehicle. He has further deposed that he could not tell the registration number of the said vehicle, however, the driver of the government vehicle might have filled up the log book on that day. However, the prosecution has also failed to produce either the log book of the official vehicle used by the ACP or to examine the driver. Since the log books are maintained for recording the movement of the official vehicles, there should have been no difficulty at all in producing such evidence if indeed the ACP moved to the spot from his office in a government vehicle. PW-8 has further deposed that none of the IOs in the present case had requested for the copy of the logbook from him. This also creates a grave suspicion regarding the truthfulness of the case of the prosecution.
35. Further, as per the prosecution story, the recovery in the present case has been effected from the house of accused Sachin. The perusal of the record shows that no inquiry was made about the ownership of the above-said house from where the recovery was effected which reflects in the deposition of various witnesses. In the present case, IO had not even bothered to verify any document to show that accused Sachin has any connection with the property from where recovery was effected. Even, no statement of any public witness in the neighborhood was recorded by the IO to show that accused was residing in the said house. IOs have nowhere deposed in their entire examination that they had issued any notice to the owner of the house to produce the relevant documents. IOs could have taken photographs of the house from where recovery was effected. Hence, these facts make serious doubt in the story of the prosecution. The prosecution SC No. 1142018 State Vs. Saroj & Anr. Page 21 of 26 has miserably failed to connect accused Sachin with the house. Hence, from the deposition of all the above-said witnesses, it is crystal clear that no sincere efforts have been made to verify the ownership of the house from where the recovery of illegal contraband was effected.
36. The counsel for the accused has argued regarding tampering of case property till the same remained in the custody of officials. It is a settled law that to safeguard the possible tampering, the samples should be sent to the laboratory at the earliest, preferably within 72 hours, and in case of delay, the onus is on the prosecution to show that there was no tampering with the case property and samples. In the event of doubt, the benefit has to be given to the accused, however, if the prosecution satisfies that there was no tampering, the delay is to be ignored.
37. The perusal of the record shows that illegal contraband was recovered and seized from the accused during the raid conducted by the raiding team on 11.12.2017 but samples of ganja were sent to FSL on 09.01.2018 and there is an unexplained delay in sending the samples to the FSL as same were required to be sent to the FSL preferably within 72 hours of its seizure. Thus, when there is a delay in sending the samples, it casts doubt on whether it is the same case property that was recovered from the accused and sent to FSL or it was the case property of some other case.
38. To this effect, reliance is placed upon judgment titled as Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC), passed by Hon'ble High Court of Punjab and Haryana at Chandigarh, wherein it was held as under:
"15. There is another important factor that is taken into SC No. 1142018 State Vs. Saroj & Anr. Page 22 of 26 consideration is that the alleged sample was taken on 26.07.1992 and was sent to the Chemical Examiner on 12.08.1992. There is no explanation furnished by the prosecution for the delay in sending the sample to the FSL so late. This lapse of the prosecution that the delayed sending of samples to FSL has not been taken happily by the courts. In Narain Vs. State of Haryana 1997 (1) RCR 414 even the delay of 10 days for sending the samples of the contraband to the FSL was taken to be such a delay which caused a dent in the prosecution story".
39. Further, as per the deposition of PW-6 ASI Shivanand, Inspector K.P. Malik has deposited six sealed pullandas, an FSL form, and a copy of the seizure memo with him to which he made entry at serial no. 4957 in register no.19. He admitted as correct that the fact that FSL form along with the sealed pullandas were also deposited in the malkhana in register no.19 and the said fact was not mentioned in register no.19 and there was no written direction of handing over the case property to Ct. Surender for depositing in the FSL Rohini. Hence, in these circumstances, tampering with case property cannot be ruled out and it creates a serious doubt in the story of the prosecution.
40. There is also one interesting thing in the present case. PW-11 SI Satyawan has deposed in his examination-in-chief that in the meantime, SHO K.P. Malik reached the spot and he handed over all sealed pullandas and carbon copy of seizure memo to the SHO for compliance of Section 55 of the NDPS Act and thereafter, SHO left the spot and thereafter, he recorded the statement of ASI Satyapal. At this stage, it would be relevant to go through the testimony of PW-3 i.e ASI Satyapal wherein the entire testimony, he has nowhere deposed that SHO K.P. Malik visited the spot. As per prosecution story, PW-2 HC Rajender was also there along with ASI Satyapal and he has also nowhere deposed that SHO K.P. Malik visited the spot. It is a very serious dent in the story of the prosecution about the presence of SC No. 1142018 State Vs. Saroj & Anr. Page 23 of 26 recovery witnesses.
41. Besides above, PW-2 HC Rajender has deposed that no document was prepared till ASI Satyapal and he remained on the spot and no document was signed by him or ASI Satyapal but the record reveals different story which shows that these witnesses have signed some documents. Hence, story of prosecution is full of contradictions.
42. Further, PW-2 HC Rajender Kumar has deposed in his cross-examination that IO/ASI Satyapal took the personal search of accused Saroj and nothing was recovered in his personal search. It is a matter of record that PW-11 IO/SI Satyawan has prepared the notice under Section 50 of the NDPS Act in a duplicate and same was served to the accused and he obtained the reply of the accused on the original wherein he replied that he did not want to be searched in the presence of the Magistrate or Gazetted Officer. Even, the perusal of Ex. PW- 10/B i.e the personal search memo of the accused shows that nothing has been recovered from the personal search of the accused. It is quite a surprising fact that when the notice under Section 50 of the NDPS Act has been served to the accused, then why the same has not been recovered during his personal search. Hence, in these circumstances, the serving of notice under Section 50 of the NDPS Act to the accused seems to be doubtful.
43. Further, PW-3 ASI Satyapal has deposed in his cross- examination that the alleged recovery of the contraband was weighed by SI Satyawan by electronic weighing scale that was lying in the house itself. He has further deposed that IO/SI Satyawan also prepared seizure memo of weighing scale in his presence but he did not SC No. 1142018 State Vs. Saroj & Anr. Page 24 of 26 remember whether he signed the seizure memo of weighing scale. However, the perusal of the entire record shows that no such memo has been prepared / filed with regard to the seizure of weighing machine.
44. Hence, from the above discussion, it is observed that there are major contradictions in the deposition of the prosecution witnesses, the statement of official witnesses without corroboration from independent sources cannot be believed to base conviction on stringent provisions of the NDPS Act. From above mentioned all the facts and circumstances and other discussions detailed above, it becomes very clear that the present case is not such a case where the complexity of the accused persons have been proved beyond a reasonable doubt. From the testimony of the witnesses and the above discussions, it is crystal clear that there is a shadow of doubt upon the accused persons regarding the commission of charged offence framed against them. Hence, in view of the submissions made above, when the recovery in the present case has not been proved to be effected from Saroj, then accused Sachin cannot be convicted for any of the offences for which he has been charged with. Thus, both accused persons are required to be acquitted in the present case by giving them the benefit of doubt. Thus on all counts, the guilt of both accused persons has not been duly proved.
45. Hence, considering the overall facts and circumstances of the present and given the above observations, both accused persons namely Saroj & Sachin are acquitted of the offences punishable under Section 20 (b) (ii) (B) & 29 of the NDPS Act by giving them the benefit of doubt.
SC No. 1142018 State Vs. Saroj & Anr. Page 25 of 2646. Both accused persons are directed to furnish bail bonds in terms of Section 437A Cr.P.C which shall remain in force for six months from today.
47. At the request of accused Saroj, his previous bail bonds are extended in terms of Section 437A Cr.P.C and shall remain in force for six months from today. Accused Sachin has furnished fresh bail bonds furnished in terms of Section 437A Cr.P.C and shall remain in force for a period of six months from today. Accused Sachin be released from jail, if not required in any other case.
48. Case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of, as per rules. File be consigned to Record Room, after due compliance. DEEPAK Digitally signed by DEEPAK WASON WASON Date: 2023.01.02 13:08:46 +0530 Pronounced in the open court (Deepak Wason) today i.e 02nd January 2023 Special Judge (NDPS): SW District Dwarka Courts: New Delhi SC No. 1142018 State Vs. Saroj & Anr. Page 26 of 26