Delhi District Court
State vs . Manoj Kumar S/O Kanhiya Prasad, on 29 May, 2010
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (NDPS):
OUTER DISTRICT: ROHINI COURTS:
DELHI
SC No.112N/2008
Unique ID No. 02404R0650172007
FIR No.415/07
PS Prashant Vihar
u/s 20 NDPS Act
State Vs. Manoj Kumar s/o Kanhiya Prasad,
R/o Village Singari, Bakhtiyar Pur,
PS Bakhtiyar Pur, Saharsa, Bihar.
Present Address: C22, Pakki Khajuri,
House of Bhagat Singh, Delhi.
Date of Institution: 25.08.2007
Date of conclusion of Arguments: 29.05.2010
Date of pronouncement of Judgment: 29.05.2010
JUDGMENT
1 Accused Manoj Kumar has been sent up to face trial by PS Prashant Vihar for commission of offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act (herein after referred to as 'NDPS Act').
2 Case of the prosecution, briefly stated, is to the effect that on
27.06.2007 SI Mahender Singh, HC Umender Singh and Ct. Ashok
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Kumar were on routine patrolling duty and while patrolling they reached near Rithala Road Metro Station. At about 7.40 PM, they saw accused coming from the side of Metro Station who was going towards Sector11. He was carrying one rexin bag on his right shoulder. On noticing the police party, he tried to change his route and tried to flee away. On the basis of his suspicious movements, he was apprehended and the bag, which he was carrying on his shoulder, was checked and was found containing ganja. SHO was informed about the recovery of ganja and Ct. Ashok Kumar was sent to PS to bring weighing apparatus. Accused was also served with notice u/s 50 NDPS Act but he refused to avail his legal rights. Such ganja was weighed and its weight was found to be eight kgs. Two samples of 500 grams each were drawn. Requisite documentation was done at the spot and sample pullandas were prepared and all the pullandas were sealed at the spot. Since possession of ganja was illegal and unlawful, it is in these circumstances that accused has been arrested and chargesheeted.
3 Chargesheet was filed in the Court on 25.08.2007. 4 Accused was charged u/s 20 NDPS Act vide order dated 07.04.2008. He pleaded not guilty and claimed trial.
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5 Prosecution was directed to adduce evidence and examined
nine witnesses viz. PW1 Ct. Ashok Kumar (recovery witness), PW2 HC Rishi Prakash (duty officer), PW3 SI Mahender Singh (first investigating officer/recovery witness), PW4 Insp. Ram Mehar Singh (SHO PS Prashant Vihar), PW5 Ct. Devender (official who had taken the sample to FSL), PW6 HC Umender Kumar (recovery witness), PW7 ASI Ishwar Singh (second investigating officer) and PW8 HC Shiv Charan and PW9 HC Surender Singh (official from ACP Office, Shalimar Bagh). 6 Accused, in his statement under Section 313 Cr.P.C., pleaded innocence and claimed that he had been falsely implicated. However, he did not choose to lead any evidence in defence. 7 I have heard learned Addl. P.P. and learned defence counsel and carefully gone through the entire material available on record. 8 Learned Addl. P.P. has contended that prosecution has been able to prove its case to the hilt. She has argued that material witnesses have entered into witness box and they have completely supported the case of prosecution and corroborated one another on each and every aspect of the case. She has also argued that link evidence is also found to be in existence and all the relevant documents have been appropriately proved.
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9 Learned defence counsel has refuted all the aforesaid
contentions. He has contended that accused has been fallaciously
implicated. He has argued that there are material contradictions amongst the testimony of spot witnesses. He has argued that even link evidence is found to be missing and, therefore, it is a fit case where accused should be granted benefit of doubt.
10 I have given my conscientious consideration to the rival contentions and perused the entire material on record. 11 All the three material spot witnesses as well as concerned SHO have graced the witness box. I have seen the testimony of PW3 SI Mahender Singh. He has deposed that at about 7.40 PM, they saw accused coming from Rithala Metro Station who was going towards Sector11 side and accused was having one heavy redblue color bag on his right shoulder. He has also deposed that on seeing the police party, he changed his way and tried to escape and on the basis of reasonable suspicion, he was apprehended. He has also deposed that bag was checked and it was found containing two polythene and each polythene was found containing ganja which was wrapped in a newspaper and was found tied with sutli. He has also deposed that recovery was found to be of ganja on account of its smell. He has also deposed that he had passed on information to SHO, PS Prashant Vihar and Ct. Ashok Kumar was FIR No.415/07 PS Prashant Vihar page 4 of 13 sent to PS for bringing weighing scale and weights. Notice u/s 50 NDPS Act has also been proved by him. His other two accompanying police officials i.e. PW1 Ct. Ashok Kumar and PW6 HC Umender have also supported him.
12 However, there are few facts which are required to be considered. Firstly, it has not been made clear as to why independent persons were not joined in the investigation. Time of recovery is not any odd hour of the day. If prosecution case is to be believed then recovery took place at about 7.40 PM and that too from a busy area i.e. Rithala Metro Station road. There is Japanese Park situated near the spot. PW3 SI Mahender Singh has deposed that people were coming and going and vehicles were also passing from there but he did not stop any vehicle and no passerby was asked to join in the investigation. As per the spot witnesses, Ct. Ashok Kumar had gone to PS to bring weighing machine by taking lift from a motorcyclist. Such motorcyclist was not even formally asked to join the investigation. Registration number of motorcycle was also not noted down. Moreover, PW1 Ct. Ashok Kumar had returned at the spot with weighing machine on a rickshaw. No effort was made to ask such rickshaw puller to join the proceedings. Thus, in the present case, no effort whatsoever was made at all.
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13 Undoubtedly, there is no harm in accepting the version of
police officials. There is no universal rule that testimony of police
officials is not worthy of credence. However, investigating agency has to display that it had made earnest efforts to join the independent witnesses and despite that no public person came forward. It is also admitted fact that people are generally reluctant and they keep themselves away from such type of investigations as they are afraid of coming to Court for deposing before the Courts. But still it not made clear by the State as to no independent person was even asked.
14 Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution and simultaneously, prosecution has to FIR No.415/07 PS Prashant Vihar page 6 of 13 offer satisfactory explanation for not associating independent witnesses more so when they are available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. Reference be made to judgment cited as Pawan Kumar Vs. The Delhi Administration, 1989 CRLJ 127 DELHI. Reference in this regard be also made to two judgments of our own Hon'ble High Court cited as RATTAN LAL VS. STATE 32 (1987) DLT DELHI 1 and MOHD. JAVED VS. STATE I (2000) CCR 402 DELHI. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. The stringent punishment prescribed by the NDPS Act clearly renders such a course imperative. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect of law.
15 PW1 Ct. Ashok Kumar, who is a material spot witness, has deposed in his examinationinchief that seals, after use, were handed over to HC Umender but in his crossexamination, he failed to FIR No.415/07 PS Prashant Vihar page 7 of 13 substantiate such fact as he claimed that he did not remember as to what was done with the seals after the seals were used. He claimed that he did not know whether the seals were retained by the concerned police officials or were handed over to someone else. It is indeed surprising because in his examinationinchief, he had come up with a very specific averment but in his crossexamination, he has taken a somersault and has pleaded his ignorance in this regard. Moreover, according to PW6 HC Umender, he had been given seals which he returned to both the concerned officials next day only. Accused was apprehended on 27.06.2007 and sample was sent to FSL on 22.08.2007. It has not been explained as to why the seals were returned immediately. Seal should not have been returned before dispatch of sample. In the case of MODH.SALEEM VS. DELHI__66(1997) DLT 826 it has been observed as under: "Normally, the seal should be handed over to the IO only after the case property has been dispatched to CFSL. In the nonobservance of the safeguards by (i) not handing over seal to the independent witness, and (ii) further to deliver the seal to the independent witness, and (iii) further to deliver the seal to SHO before the dispatch of the sample to CFSL, the possibility of seal being tampered with and the substance being changed and subsequently containers being resealed cannot be ruled out".
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16 As per case of prosecution, concerned SHO had reached at
the spot and he had also affixed his seal on the pullandas and FSL form. PW4 Insp. Ram Mehar Singh has deposed that after the FSL form was filled and seals were put, he was given all the sealed pullandas, FSL form and copy of seizure memo and he came back at PS and deposited the same with MHC(M).
17 Naturally, MHC(M) is a very vital link in such type of cases. He remained the custodian of the case property right from the seizure till 22.08.2007 but there is complete chaos as to who was MHC(M) at the relevant point of time. On careful perusal of the entire judicial file and police file, it was noticed that as per investigating agency, HC Shiv Charan No. 165 NorthWest was MHC(M) at the relevant point of time i.e. on 27.06.2007 as well as on 22.08.2007. So much so, his statement u/s 161 Cr.P.C. was also recorded by second investigating officer i.e. PW7 ASI Ishwar Singh. HC Shiv Charan was summoned but in his testimony before the Court, he claimed that he remained as MHC(M) at PS Prashant Vihar upto 16.01.2008 and he never made entry pertaining to the present case. He was shown entry of Register No. 19 but he claimed that such entry was not in his hand and he could not say as to who was author of such entry.
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18 Such material fact creates a big hollowness in the case of
prosecution and it rather creates an element of doubt because as per the case of prosecution, HC Shiv Charan was the actual MHC(M) at the relevant point of time but HC Shiv Charan has outrightly denied such fact. This means that his statement on record is a bogus statement. 19 It would also be pertinent to mention here that in order to ascertain as to who was MHC(M) at the relevant point of time, concerned SHO was directed to be summoned along with complete record and SHO, PS Prashant Vihar appeared before the Court in person and sought time and claimed that he would take requisite assistance from the concerned IO and would produce the concerned MHC(M) before the Court. Despite that nobody in the world knows as to who was the MHC(M) at the relevant point of time. Deposition of HC Shiv Charan is loud and clear and he is crying hoarse that he was not MHC(M) at the relevant point of time. Thus, link evidence is found to be missing. In the case of 1991 CRI. L. J. 2524 MOHD. ASIF V. STATE (DELHI ADMN), it has been observed that there can possibly be no dispute with regard to the proposition that in cases where link evidence is missing to prove that the sealed parcels were not tampered with the, Court has to give benefit of VS doubt to an accused. In STATE OF RAJASTHAN DAULAT RAM AIR 1980 SC 1314, it has been held that it is the duty of the prosecution to prove that while in their custody, the sample was not tampered with FIR No.415/07 PS Prashant Vihar page 10 of 13 VS before reaching the public analyst. In SUBHASH CHAND MISHRA STATE 2002(2) JCC1379 , it was observed that prosecution is under an obligation to prove that the sample delivered to CFSL was in the same condition and there was no possibility of being tampered with. In MOHD HASIM VS STATE ( DELHI) 1999 ( 3) C.C. CASES DHC 149 and EZE VAL OKELE @ VAL EZE VS NARCOTIC CONTROL BUREAU 2005 1 AD ( CR.) DHC 185, it has been held that prosecution is bound to produce every link evidence that sealed pullandas of case property from the time they were taken till they were deposited in the malkhana and till they were deposited in the FSL, the seals thereon were not tampered with, by examining all the witnesses who had handled the sample. It was also held that if any link was missing, then it could not be said that prosecution had ruled out the possibility of sample being tampered with or changed and accused would be entitled for acquittal. 20 Sample was taken to FSL by PW5 Ct. Devender. According to him, he had taken the FSL form as well along with pullandas. If that was really so then he would have certainly mentioned such fact even in his statement u/s 161 Cr.P.C. In his such statement dated 22.08.2007, he simply claimed that he had taken two pullandas vide Road Certificate No. 96/21/07 and deposited the pullandas in FSL. He did not make even a whisper that he was given FSL form. Moreover, Road Certificate was also never produced before the Court. Acknowledgment given by the FIR No.415/07 PS Prashant Vihar page 11 of 13 FSL was also never produced before the Court. Therefore, there is great uncertainty with respect to the fact whether FSL form was also sent to FSL with pullandas or not. The entire ambiguity could have been removed easily, had the Road Certificate been placed on record but for the reasons, best known to the investigating agency and prosecution, no necessity was felt of placing on record such Road Certificate? Learned Addl. P.P. sought one more opportunity to produce on record such Road Certificate. However, I do not find any merit in such request primarily due to the reason that there is big question mark as to who was the custodian of case property as MHC(M). Nobody knows as to what has actually been taken under such Road Certificate and what type of acknowledgment was endorsed by the concerned forensic laboratory while accepting such sample pullanda.
21 Moreover, if at all PW5 Ct. Devender had taken FSL form with him then he would be certainly knowing the seals' impressions but in his crossexamination, he categorically claimed that he did not remember the seals' impressions. This also creates an element of doubt and identity of the sample, in such a situation becomes questionable as even seals were returned to the concerned police officials following day. 22 In view of my aforesaid discussion, I am inclined to grant benefit of doubt. Benefit of doubt is accordingly given to accused and he FIR No.415/07 PS Prashant Vihar page 12 of 13 is acquitted of offence under Section 20 of NDPS Act. 23 Bail bonds are cancelled. Surety is discharged. 24 Case property stands confiscated and be destroyed as per rules after expiry of the period of appeal or after awaiting the outcome of appeal, as the case may be.
25 File be consigned to Record Room.
Announced in the open Court
On this day of 29th May, 2010. (MANOJ JAIN)
ASJ/Special Judge (NDPS)
Outer Distt: Rohini Courts: Delhi
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