Delhi District Court
Fir No. 20/97 St vs . Bansi Lal And Kishore Kumar ; Ps: Kamla ... on 25 August, 2011
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FIR no. 20/97 St vs. Bansi Lal and Kishore Kumar ; PS: Kamla Market
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
(CENTRAL)05, DELHI
STATE VS. Bansi Lal and Kishore Kumar
FIR NO: 20/1997
P. S. Kamla Market
Date of institution of case : 02.03.1998
Date on which case reserved for judgment : 22.07.2011
Date of judgment : 25.08.2011
Advocates appearing in the case :
Sh. Vakil Ahmad, Ld. APP for State
Sh. K.L. Juneja,counsel for accused
JUDGEMENT U/S 355
Cr.P.C
.:
a) Date of offence : 06.12.1997
b) Offence complained of : U/S 21 NDPS Act
c) Name of complainant : SI Sahab Singh
d) Name of accused, his parentage, : Bansi Lal
local & permanent residence S/o Sh. Bhagwana Ram
R/o H.No. 5/31, Motia Khan
Paharganj, Delhi
Other accused Kishore Kumar
convicted during trial on 08.01.2007
e) Plea of accused : Accused Bansi Lal is falsely
implicated.
f) Final order : Accused Bansi Lal is acquitted
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FIR no. 20/97 St vs. Bansi Lal and Kishore Kumar ; PS: Kamla Market
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. Brief facts of the case are that the present FIR was lodged on the complaint of SI Sahib Singh from PS Narcotics Branch, Delhi dated 06.12.1997 that on 06.12.1997 at about 11 AM in the morning, one secret informer came to police station Narcotic Branch, Kamla Market and informed him that one person named Bansi is sitting on a cot outside his jhuggi no. A5/311, Motia Khan, Paharganj and selling smack in small packet and he can be apprehended if raid is conducted. On receipt of this information, ASI Sahib Singh informed SHO PS Narcotics Branch, Kamla Market and produced the informant before him and the SHO informed the DCP (Narcotics) through telephone who directed the SHO to enter the information in Rojnamcha Register and prepare raiding party for arrest of the accused. Hence, the information was entered in DD no. 7 dated 06.12.1997 and raiding party was prepared consisting of ASI Sahib Singh, HC Nar Singh, HC Ishwar Dayal, Ct. Roshan Lal and Ct. Gajender Singh under supervision of SHO and the raiding party went on Government Vehicle no. DL1CC4416 alongwith the secret informer to the spot. The passersby were requested to join the raiding party, but none joined and went away, hence, the raiding party went at the spot and took their position and apprehended accused Bansi @ Bansi Lal S/o Bhagwana Ram at the instance of secret informer. He was served notice u/s 50 NDPS Act and was informed that he can get his personal search conducted by some government official or Magistrate but he refused and signed refusal on the notice. So HC Nar Singh conducted personal search of accused Bansi Lal and on his search, seven small paper packets and one pouch of brown colour was recovered and on opening the pouch, one plastic packet closed with rubber band was discovered and on opening all the packets, brown coloured smack was recovered which was 10 gram in total and currency notes of Rs. Page no. 3/10
FIR no. 20/97 St vs. Bansi Lal and Kishore Kumar ; PS: Kamla Market 12,990/ were also recovered. Out of the recovered smack, one separate sample of 5 gram was prepared in small polythene and made into pullanda MarkA and the remaining smack and the packets and cash recovered was made into pullanda Mark B and form of FSL was filled and stamped with stamp of 'SS' by ASI Sahib Singh and handed over to SHO and accused was arrested u/s 21 NDPS Act. During investigation, other accused Kishore Kumar was arrested at the instance of accused Bansi Lal. After receiving FSL report and completion of investigation, chargesheet was filed in court. The Ld. Predecessor Court after supplying copies to the accused had committed the case to Ld. Special Judge, NDPS for further trial.
2. Charge u/s 21 NDPS Act was framed against accused Bansi Lal and charge u/s 29 NDPS Act was framed against accused Kishore Kumar by Ld. Special Judge, NDPS. During pendency of trial, accused Kishore Kumar pleaded guilty and he was convicted on the plea of guilt. Trial was conducted against accused Bansi Lal and evidence was recorded in Special Court, NDPS. During trial, accused Bansi Lal filed application for retesting to determine the percentage of diacetyle morphine and the sample was sent again for retesting. Vide order dated 14.12.2005 of Ld. Special Judge, NDPS, it was decided that the sample pullanda contains diacetyle morphine to the extent of 39.80% as per FSL report and on calculation, the total amount of smack i.e. 10 gram recovered in this case comes out to 3.98 grams of heroine, which amounts to small quantity as it is below 5 grams. Hence, case was remanded to Ld. CMM and thereafter marked to the Ld. Predecessor Court for trial by the Magistrate as per provisions of NDPS Act.
3. In order to prove its case against accused, prosecution examined ten PWs on its behalf. PW1 is SHO Inspector Pravesh Chaubey, PS Narcotics Branch, Kamla Page no. 4/10 FIR no. 20/97 St vs. Bansi Lal and Kishore Kumar ; PS: Kamla Market Market who stated that on 16.12.1997, Ct. Roshona Lal had handed him over two cloth parcels Mark A and B and CFSL form having seal of 'SS' and he affixed his own seal of 'PC' and handed it over to MHC(M) HC Jai Bhagwan after recording DD entry no. 12.
4. PW2 HC Nar Singh, PW9 Ct. Roshan Lal and PW10 IO SI Sahib Singh are the recovery witnesses who deposed on the same lines. PW10 SI Sahib Singh reiterated the facts mentioned in his complaint and stated that on 06.12.1997 of 17.03.2001 at about 11 AM in the morning, one secret informer came to police station Narcotic Branch, Kamla Market and informed him that one person named Bansi is sitting on a cot outside his jhuggi no. A5/311, Motia Khan, Paharganj and selling smack in small packets and he can be apprehended if raid is conducted. On receipt of this information, PW10 ASI Sahib Singh informed SHO PS Narcotics Branch, Kamla Market and produced the informant before him and the SHO informed the DCP (Narcotics) through telephone who directed the SHO to enter the information in Rojnamcha Register and prepare raiding party for arrest of the accused. Hence, the information was entered in DD no. 7 dated 06.12.1997 and raiding party consisting of PW10 ASI Sahib Singh, PW2 HC Nar Singh, HC Ishwar Dayal, PW9 Ct. Roshan Lal and Ct. Gajender Singh under supervision of SHO and the raiding party went on Government Vehicle no. DL1CC4416 alongwith the secret informer at the spot. The passersby were requested to join the raiding party, but none joined and went away, hence, the raiding party went at the spot and took their position and apprehended accused Bansi @ Bansi Lal S/o Bhagwana Ram at the instance of secret informer. He was served notice u/s 50 NDPS Act and was informed that he can get his personal search conducted by some government official or Magistrate but he refused and signed refusal statement on the notice. So HC Nar Page no. 5/10 FIR no. 20/97 St vs. Bansi Lal and Kishore Kumar ; PS: Kamla Market Singh conducted personal search of accused Bansi Lal and on his search, seven small paper packets and one pouch of brown colour was recovered and on opening the pouch, one plastic packet closed with rubber band was discovered and on opening all the packets, brown coloured smack was recovered which was 10 gram in total and currency notes of Rs. 12,990/ were recovered. Out of the recovered smack, one separate sample of 5 gram was prepared in small polythene and made into pullanda MarkA and the remaining smack and the packets and amount recovered was made into pullanda MarkB and form of FSL was filled and stamped with stamp of 'SS' by ASI Sahib Singh and handed over to SHO and accused was arrested u/s 21 NDPS Act. PW10 exhibited the rukka as Ex.PW10/A, information of arrest of accused as Ex. PW10/B and site plan as Ex.PW10/C. He stated that accused Bansi Lal made disclosure statement that he had purchased 150 grams of smack from Kishore Kumar and in the meantime, accused Kishore Kumar also reached the spot and he was also apprehended after giving him Notice u/s 50 NDPS Act but on his search, no contraband was recovered from accused Kishore Kumar but he admitted that he had sold smack to accused Bansi Lal. House search of accused Bansi Lal was conducted vide memo Ex.PW10/D but no contraband was found. PW10 further stated that he prepared report u/s 57 NDPS Act and sent it to DCP through SHO. Copy of report is Ex.PW10/F. The case property i.e. sealed parcel of sample smack MarkA and white cloth were exhibited as Ex.P1 and Ex.P2 and the other parcel MarkB containing cloth, brown colour cloth bag, currency notes of Rs. 12,990/, remaining smack and 7 paper pieces and the empty polythene were exhibited from Ex.P3 to Ex.P8. Articles of personal search of accused Bansi Lal were exhibited from Ex.P10 to Ex.P13 and articles of personal search of accused Kishore Kumar were exhibited from Ex.P14 to Ex.P16.
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FIR no. 20/97 St vs. Bansi Lal and Kishore Kumar ; PS: Kamla Market
5. PW3, ASI Dilip Kumar from office of DCP (Narcotics) exhibited the original report u/s 57 NDPS Act as Ex.PW3/A. PW4 MHC(M) HC Jai Bhagwan, stated that SHO Inspector P. Chaubey had handed him over to parcels MarkA and B with CFSL form on 06.12.1997 and entry was made in register at serial no. 40, which is Ex.PW4/A and jamatalashi articles deposited by SI Sahib Singh were mentioned at same serial number and copy of entry is Ex.PW4/D.
6. PW5 Ct. Harpal Singh stated that on 16.12.1997, he had received sample parcels and CFSL form sealed with seal of 'SS' and 'PC' from MHC(M) vide RC no. 29/21 and had taken it to CFSL, Chandigarh. PW6 HC Bhagwat Dayal stated that on 16.12.1997, he was posted as MHC(M) PS Narcotics Branch and had handed over sample parcels MarkA and CFSL form to Ct. Harpal Singh for taking it to CFSL Chandigarh. He exhibited the entry no. 40 as Ex.PW6/A. PW7 SI Phul Chand, DO exhibited the copy of FIR as Ex.PW7/A.
7. PW8 Dr. Sukhvinder Kaur from CFSL, chandigarh stated on 16.12.1997, one parcel sealed with seal of 'SS' and 'PC' was received in CFSL office with specimen seal and documents and on opening it, light brown coloured powder was found and laboratory tests were carried out and it was found to contain Diacetyl Morphine to the percentage of 39.80%. She exhibited her report as Ex.PW8/A.
8. After closure of PE, statement of accused Bansi Lal u/s 313 Cr.P.C. was recorded. Accused preferred not to lead defence evidence, hence final arguments were heard on last date and case was fixed for order for today. Page no. 7/10
FIR no. 20/97 St vs. Bansi Lal and Kishore Kumar ; PS: Kamla Market BRIEF REASONS FOR DECISION AND DECISION THEREOF:
9. During final arguments, the Ld. APP argued that the prosecution has proved all the material documents and all the witnesses have supported the case of prosecution and the case property has also been exhibited, hence it is a fit case for conviction of accused. On the other hand, the Ld. Defence Counsel argued that there are many discrepancies in the case of prosecution and prosecution has failed to prove the case beyond reasonable doubt and benefit of every doubt shall be given to accused. The Defence Counsel brought the attention of court to the fact that PW4 HC Jai Bhagwan stated that the two parcels MarkA and B and CFSL form were deposited with him as MHC(M) on 06.12.1997 and PW6 HC Bhagwat Dayal has deposed that the CFSL form and sample parcels MarkA was sent to CFSL, Chandigarh on 16.12.1997, hence the counsel argued that there is gap of 10 days between the deposit of parcel with MHC(M) and sending the parcel to CFSL, Chandigarh. The defence counsel argued that the unexplained delay of 10 days in sending the sample parcels to CFSL, Chandigarh raises serious doubt upon the case of prosecution and the chances of tampering with the case property can not be ruled out in these 10 days.
10. The defence counsel further argued that the very fact that ASI Sahib Singh who was the complainant in this case also became the IO and no other competent police official was deputed to become the IO after lodging of FIR, itself suggests chances of manipulation and tampering with case property since the case property was recovered by ASI Sahib Singh and remained with him till deposit with MHC(M). The counsel argued that Hon'ble High court and Supreme Court have held in various cases that the police official who is complainant can not be IO in the same Page no. 8/10 FIR no. 20/97 St vs. Bansi Lal and Kishore Kumar ; PS: Kamla Market case and the fact that complainant police official becomes the IO, turns to be fatal for case of prosecution as he is an interested witness. Defence counsel further brought attention of court towards jamatalashi i.e. Personal search memo of accused Bansi Lal Ex.PW2/D and Fard Makbujgi i.e. Recovery Memo Ex.PW2/C and stated that the very fact that accused Bansi Lal had signed the personal search memo but had not signed the seizure memo Ex.PW2/C raises serious doubt on the case of prosecution that alleged recovery has been falsely imputed upon accused Bansi Lal and that is the reason for absence of signatures of accused Bansi Lal on seizure memo Ex.PW2/C. This amounts to material discrepancy in the case of prosecution.
11. The defence counsel also argued that the fact that police officials did not join any public person as an independent witness to alleged recovery also smells of malafide intention on the part of police and the Hon'ble Supreme Court and High Court have repeatedly held in various cases that non joining of public persons as independent witness to recovery turns to be fatal for case of prosecution.
12. It has been held by Hon'ble High Court of Delhi in case titled Mohd. Rafique Vs. State 2000 II AD (Cr.) DHC 365 that having regard to the area and the place of search and seizure of heroine u/s 21 NDPS Act, it appeared that public witnesses were available but no serious attempt was made by IO to associate them before searching the accused and this is a very serious infirmity which destroys the credibility of evidence of police officials and it is not safe to accept the evidence of police officials without corroboration from independent sources, hence the Hon'ble High Court in above said case acquitted the accused. In case of Jagtar Singh Vs. State of Punjab (490 DC 1997), it was held by Hon'ble Punjab and Haryana Court Page no. 9/10 FIR no. 20/97 St vs. Bansi Lal and Kishore Kumar ; PS: Kamla Market that the failure of IO to join independent public persons as witness to recovery from accused, raises serious doubt upon case of prosecution and it can be said that prosecution has not been able to prove its case beyond reasonable doubt.
13. In case of Buta Singh VS. State of Punjab 2006 (2) CC 42 Hon'ble High Court of Punjab and Haryana held that failure of prosecution to explain the delay of 8 days in dispatch of sample to FSL is fatal to the case of prosecution. The Hon'ble High of Court of Delhi in case of Radha Kishan Vs. State 87 (2000) DLT 106 held that delay of 13 days in sending the sample for testing without any reasonable explanation, raised doubt upon case of prosecution and benefit of doubt was granted to accused.
14. In case of Prthvi Pal Singh Vs. State 2000 (1) JCC Delhi 274, the Hon'ble High Court of Delhi while deciding the case u/s 21 NDPS Act 1985 held that in case of non joining of public witness to search and seizure, prosecution has to establish that despite best efforts, no public witness was ready to join the raiding party but the failure of police official to give names of persons who had refuged to join the raiding party suggests that no serious effort was made to join the public witnesses and it raises serious doubt on the truthfulness of prosecution version and benefit of doubt was granted to accused. In the above said case, the Hon'ble High Court of Delhi relied upon cases decided by Hon'ble Supreme Court titled State of Punjab Vs. Baldev Singh 1999 (4) JT SC 595, Menka Gandhi Vs. Union of India (1978) 1 SCC 248 and Ratan Lal Vs. State 1987 (2) Crimes 29.
15. In the present case also, neither the police made serious efforts to join Page no. 10/10 FIR no. 20/97 St vs. Bansi Lal and Kishore Kumar ; PS: Kamla Market public persons as witness to recovery nor took necessary precaution for sending sample to CFSL, moreover, complainant himself became IO which is against principle of fairness. Hence, in view of the above stated discussion, this court is of opinion that there are serious discrepancies in the case of prosecution and prosecution has failed to prove the case beyond reasonable doubt against accused Bansi Lal. Hence, accused Bansi is found not guilty and acquitted of offence u/s 21 NDPS Act. PB & SB of accused stands discharged. Original documents if any be released to the authorised person on proper receipt and endorsement if any be cancelled. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH ) TODAY ON 25th August, 2011 MM05(CENTRAL),DELHI