Delhi District Court
State vs Sunny Kumar @ Mangal Page No. 1/31 on 11 September, 2014
IN THE COURT OF SH. SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI
FIR No. 56/13
P.S. Bindapur
u/s 20/61/85 NDPS Act
S.C. No. 05/2/13
STATE
Vs.
Sunny Kumar @ Mangal
S/o Sh. Nandpal,
R/o B44, PhaseI,
J.J. Colony, Sector3, Dwarka,
New Delhi. ... Accused
Date of Institution : 04.04.2013
Reserved for Order on : 02.09.2014
Judgment delivered on : 11.09.2014
JUDGMENT
Briefly stated the facts of the prosecution case are that on 04.02.2013 while ASI Devender along with H.Ct. Naresh Kumar and Ct. Naveen Kumar was on patrolling duty in the area of P.S. Bindapur and when at about 4.15 p.m they reached near water tank park, behind NSIT, J.J. Colony, PhaseI & II, Sector3, Dwarka, New Delhi, they saw that the FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 1/31 accused Sunny Kumar @ Mangal was coming from the gate of the park carrying a plastic bag (katta) on his right shoulder and on seeing the police officials, the accused turned back and started going fast. On suspicion, ASI Devender along with his staff apprehended the accused Sunny Kumar @ Mangal after chasing him by 1015 paces. On checking the plastic bag being carried by the accused, it was found containing some badbudar (foul smell) grass like substance containing seeds. On smelling, the substance was found to be ganja.
2. It is further the case of the prosecution that on enquiry, the name of the accused was revealed as Sunny Kumar @ Mangal. Thereafter the accused was apprised about his legal rights and notice u/s 50 NDPS Act was prepared in triplicate by ASI Devender and was served upon the accused after telling him about his legal rights that he can be searched in the presence of any gazetted officer or Magistrate.
3. It is further the case of the prosecution that notice u/s 50 NDPS Act was served upon the accused. On weighing the plastic bag with the help of tarazoo, the recovered ganja was found to be 6 kg in weight, out of which 2 kg was taken as sample and kept in a white colour cloth polythene and its pulanda was prepared and after sealing it with the seal of DS, it was given mark as sample S and the remaining 4 kg ganja was kept in the recovered plastic bag after tying its mouth with a white cloth and sealed it with the seal of DS. IO filled the form FSL and the FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 2/31 seal after use was given to H.Ct. Naresh Kumar. IO gave the information to the then SHO Inspector Rajbir Singh Lamba who also came to the spot and after making enquiries from the accused and verification, the SHO further sealed the plastic bag of the ganja and the sample pulanda along with form FSL, with the seal of RSL and then he took custody of both the pulandas, form FSL and carbon copy of the seizure memo to the P.S.
4. It is further the case of the prosecution that IO prepared the rukka and handed over the same to Ct. Naveen Kumar for getting the case registered. In personal search of the accused, carbon copy of the notice and cash of Rs.250/ was recovered.
5. It is further the case of the prosecution that SI Naresh Kumar prepared the site plan of the spot at the instance of ASI Devender and arrested the accused and conducted further investigation and prepared the report u/s 57 of the NDPS Act and forwarded the same to senior police officers through SHO and recorded the statement of the witnesses and after completion of the investigation, the challan was filed.
6. The charge against the accused Sunny Kumar @ Mangal S/o Sh. Nand Pal was framed against the accused u/s 20 (b) of the NDPS Act on 01.05.2013 to which the accused pleaded not guilty and claimed trial.
7. The prosecution to prove its case in all examined as many as FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 3/31 nine witnesses. PW1 Ct. Naveen Kumar was the witness of investigation with ASI Devender Kumar and H.Ct. Naresh Kumar and he deposed in his testimony that on 04.09.2013 he along with H.Ct. Naresh was on patrolling duty in the area when at about 4.15 pm they reached near water tank park, behind NSIT, J.J. Colony, PhaseI & II, Sector3, Dwarka, New Delhi, they saw that the accused, present in court on that day (correctly identified by the witness) was coming from the gate of the park carrying a plastic bag (katta) on his right shoulder. On seeing the police officials, the accused turned back and started going fast. On suspicion, the accused was apprehended by them after chasing him for 2025 paces. He further deposed that on checking the plastic katta of the accused, it was found having some badbudar (foul smell) grass like material/substance containing seeds. The recovered material/substance was weighed by ASI Devender with the help of a taraju and it was found 6 Kg. A notice u/s 50 NDPS Act was served upon the accused by ASI Devender and the accused was apprised about his right to be searched before any gazetted officer or Magistrate but he did not opt to be searched in their presence. They also offered their search to the accused before taking his search but he declined to take their search. ASI Devender separated two Kg of the recovered material/substance for sample and sealed the same in white colour polythene with seal of 'DS' and the pulanda of the sample was given serial number S1. The remaining 4 Kg FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 4/31 of the recovered material/substance was kept in the recovered plastic bag and the same was sealed with the seal of 'DS'. Thereafter, ASI Devender filled the FSL form and the seal after use was handed over to H.Ct. Naresh. ASI Devender seized the aforesaid pulandas vide seizure memo Ex.PW1/A bearing his signatures at point 'A'. SHO was called at the spot and Inspector Rajbir Singh Lamba, SHO P.S. Bindapur came to the spot. After verification, Inspector Rajbir Singh Lamba put his seal on the pulandas and FSL form and took the pulandas and FSL form in his custody and left the spot for police station. ASI Devender prepared a rukka and sent Ct.Naveen to the police station with rukka for FIR and after registration of FIR, Ct.Naveen returned to the spot along with SI Naresh Kumar. After reaching at the spot, SI Naresh Kumar interrogated the accused and thereafter arrested him vide arrest memo Ex.PW1/B and conducted his personal search vide memo Ex.PW1/C. In the personal search of the accused, one notice u/s 50 NDPS Act and cash Rs. 250/ were recovered. The disclosure statement Ex.PW1/D of accused was recorded by SI Naresh Kumar and the notice u/s 50 NDPS Act Ex.PW1/E was prepared by ASI Devender bearing his signatures at point 'A'. He correctly identified the case property i.e. the sample taken from the recovered material/substance from the accused as Ex.P1, the material/substance is Ex.P2 and the plastic bag is Ex.P3. FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 5/31
8. PW2 H.Ct. Kalyan Singh is the duty officer and he deposed that on 04.02.2013 he recorded the FIR bearing No. 56/13 Ex.PW2/A and also made his endorsement on the rukka Ex.PW2/B. After registration of the FIR, he handed over the rukka and copy of FIR to Ct. Naveen to hand over the same to ASI Virender(wrongly typed, should be ASI Devender).
9. PW3 Ct. Parvesh deposed that on 27.02.2013 on the instructions of the IO, he had taken the sealed pulanda sealed with the seal of DS and RSL from the MHC(M) and had taken the same to FSL, Rohini and had deposited the sealed pulanda with the intact seal in FSL, Rohini and obtained the receipt of case acceptance and came back to P.S. Bindapur and handed over the same to MHC(M). He further deposed that till the pulanda remained in his custody, same was not tampered with.
10. PW4 H.Ct. Karan Singh was the MHC(M) in P.S. Bindapur and proved the entry regarding deposit of pulandas with him on 04.02.2013 as Ex.PW4/A and also proved that on 27.02.2013 he sent one pulanda containing 2 kg ganja along with FSL form to FSL, Rohini through Ct. Parvesh vide road certificate No. 53/21/13 Ex.PW4/B and Ct. Parvesh handed handed over him the acknowledgment of acceptance as Ex.PW4/C. He also made his endorsement in respect of the relevant FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 6/31 entry in register No.19.
11. PW5 H.Ct. Naresh Kumar is the witness of investigation and he deposed the same thing as deposed by PW1 regarding apprehension of accused, recovery of 6 Kg of ganja from the accused Sunny Kumar @ Mangal and thereafter serving the notice u/s 50 NDPS Act and about telling the legal right of the accused and thereafter making pulandas of the samples from the recovered ganja and regarding arrest of the accused by SI Naresh and taking his personal search. He also identified the case property i.e. the substance kept in the sample pulanda as Ex.P1 and the recovered plastic bag with substance as Ex.P2 and the plastic bag as Ex.P3.
12. PW6 ASI Devender is the 1st IO of this case who investigated this case and also deposed as per the testimony of PW1 Ct. Naveen and PW5 H.Ct. Naresh Kumar and handed over the custody of the accused and the documents to the 2nd IO SI Naresh Kumar and also identified the case property in the court.
13. PW7 SI Naresh Kumar is the 2nd IO of this case who also deposed regarding his reaching at the spot i.e. near water tank park behind NSIT, J.J. Colony, PhaseI and II, Sec3, Dwarka, along with Ct. Naveen on 04.02.2013 where ASI Devender along with the accused and FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 7/31 H.Ct. Naresh Kumar met them and then he prepared the site plan of the spot at the instance of ASI Devender and proved the same as Ex.PW6/E and arrested the accused vide arrest memo Ex.PW1/B. He also deposed regarding the personal search of the accused conducted by him Ex.PW 1/C and he also recorded the disclosure statement of the accused Ex.PW 1/D and thereafter recorded the statement of the witnesses u/s 161 Cr.P.C. during the course of investigation and then the accused was sent for his medical checkup. He also deposed regarding sending his report u/s 57 NDPS Act and the same is Ex.PW7/A and thereafter he produced the accused and one day P.C. remand was obtained and after completion of the police custody remand, the accused was sent to jail. He further deposed that on 27.02.2013, he directed the MHC(M) to send case property to FSL, Rohini and after completion of the investigation, he filed the challan in the court.
14. PW8 Dr. Kanak Lata Verma is the Sr. Scientific Officer from FSL, Rohini, Delhi who gave the FSL result of the test analysis test of the recovery substance from the accused and he proved the detailed report of examination as Ex.PW8/A.
15. PW9 H.Ct. Rajender Kumar is the witness from the office of ACP Sh. Mahender Singh, Subdivision Dabri, New Delhi who proved FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 8/31 the intimation u/s 42 of the NDPS Act in the diary register sent by ASI Devender and forwarded by SHO P.S. Bindapur and received in the office of ACP. He made his endorsement in the encircled portion X on the report Ex.PW9/A diarized by him in the diary register at S.No. 641. He also proved the report u/s 57 NDPS Act as Ex.PW9/B. After completion of the prosecution evidence, the same was closed and the case was fixed for recording the statement of accused under section 313 Cr.P.C.
16. The incriminating evidence against the accused was put to him in his statement recorded u/s 313 Cr.PC wherein he has stated that he was lifted by the police from his house on the pretext of making enquiries. Nothing was recovered from him. He is innocent. He has been falsely implicated in this case by the Police. Thereafter the case was fixed for final arguments.
17. I have heard the Ld. Counsel for the accused as well as Ld. Addl.PP for the state. During the course of arguments, Ld. Counsel for the accused has drawn the attention of the court on the testimonies of investigation witnesses and stated that there are material contradictions in this case. It is submitted that the FIR number was put on the documents before registration of FIR in this case. He has drawn the attention of the court on the statement of PW1, PW3 & PW6 in this respect. It is FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 9/31 submitted that there is also contradictory version of all the witnesses regarding visit of wife of accused at the spot. Ld. Counsel has further drawn the attention on the statement of PW3 and PW4 and stated that their statements revealed that form FSL was not sent with sample to FSL. It is further submitted that as per statement of IO, serial no.1 was given to sample taken out of the recovered substance but as per FSL result Exhibit S was checked which make the case doubtful as to whether the recovered substance was in sample sr.no.1 or in sample 'S'. It is further submitted that there is also doubt regarding preparation of raiding party as all the members of raiding party have given contradictory version. It is submitted that the accused may kindly be acquitted.
18. On the other hand, Ld. Addl.PP for the State has also drawn the attention of the court on the statement of each and every witness as well as their cross examinations and stated that the contradictions pointed by the Ld. Counsel for the accused are minor and of trivial nature which are not fatal for the case of the prosecution. It is submitted that the accused may kindly be convicted.
19. In view of the submissions made by the Ld. Counsel for the accused as well as Ld.Addl.PP for the State, I have also analysed the evidence on record as well as gone through the mandatory provisions of FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 10/31 the Act. Admittedly, an offence committed under NDPS Act is a grave one. Procedural safeguards provided to the accused under a statute require strict compliance. Section 50 NDPS Act provides an extremely valuable right to the concerned person/suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguards contained in Sec. 50 is intended to protect a person against false accusation and frivolous charges, as also to lend creditability to the search and seizure conducted by the empowered officer. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the search and seizure proceeding and it would also strengthen the prosecution case. It is the duty of the empowered officer to inform the concerned person/suspect of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. The prosecution must at the trial establish that the empowered officer had conveyed the information to the concerned person of his/her right of being searched in the presence of a Magistrate or a Gazetted Officer, at the time of the intended search. It is held by the Hon'ble Apex Court in the case of State of Punjab Vs Baldev Singh reported in JT 1999(4) SC 595 that courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Sec. 50 NDPS Act, that no presumption U/s FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 11/31 54 NDPS Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court that the requirements of Sec. 50 were duly complied with. It is held that the safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Sec. 50 to ensure that persons are only searched with a view to maintain veracity of evidence derived from such search. That severe punishments have been provided under the Act for mere possession of illicit drugs and Narcotics substances. Personal search, more particularly for offences under the NDPS Act are crucial means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Sec. 50 of the Act are observed scrupulously. It was further held that provisions of subsection (1) of Section 50 makes it imperative for the empowered officer to "inform the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a Gazetted officer or a Magistrate and failure to "inform"the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a Gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 12/31 provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a Gazetted officer or a Magistrate, if so required by him.
20. In the present case, PW6 ASI Devender has stated that notice u/s 50 NPDS was prepared in triplicate and served upon accusced after telling him his legal rights to be searched in the presence of Gazetted Officer or Magistrate. The notice is Ex.PW1/E. He further stated that accused did not incline to avail his rights and he gave his reply which is Ex.PW6/A. In cross examination, he has stated that he prepared the notice u/s 50 NDPS Act before weighing the alleged recovered substance. He weighed the ganja after obtaining reply of accused on notice u/s 50 NDPS Act. He weighed the ganja after about 15 minutes after serving the notice upon the accused. Two copies of the notice u/s 50 NDPS Act were prepared. When he obtained the signatures of Ct. Naveen and HC Naresh on the original copy of notice u/s 50 at that time there was no carbon copy between the original and other carbon copy. He obtained the signatures of Ct. Naveen and HC Naresh separately on original copy as well as carbon copy. I have perused the notice u/s 50 FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 13/31 NDPS Act. It is revealed that there was carbon kept between original copy and carbon copy at the time of preparation of the same. Further the carbon copy also bears the carbon signatures of HC Naresh. However, Ct. Naveen has signed in original. There is also cutting at the place of signatures of Ct. Naveen. It seems that first someone else had signed at this place and thereafter Ct. Naveen has signed in original. This discrepancy has not been explained by the prosecution.
21. Further, PW1 Ct. Naveen in cross examination has stated that when he signed the notice u/s 50 NDPS Act, the case particulars were already written on the top. This version of PW1 clearly indicate that the notice u/s 50 NDPS Act was served after registration of FIR as is deposed by PW1 or he had signed it when second IO came at the spot. But it is clear that he has not signed the same at the time of serving upon the accused.
22. PW5 HC Naresh has stated, in cross examination that it is correct that IO ASI Devender served a notice u/s 50 NDPS Act after recovery of the alleged ganja of 6 kgs from the accused. He has further stated that section 50 NDPS notice was served in this case after recovery. The statement of PW5 makes is emphatically clear the notice u/s 50 NDPS Act, in this case was served after recovery of ganja which is in FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 14/31 violation of the provisions of NDPS Act.
23. It is well settled that provisions of section 50 of the Act provide a safeguard against false and frivolous prosecution and they are also intended to avoid criticism of arbitrary and high handed action against the authorised officers. It was incumbent upon the prosecution to prove the case beyond reasonable doubt that the contraband was recovered in accordance with the provisions of sec.50 of the Act. Nodoubt, I am conscious of the fact that the provisions of Sec. 50 NDPS Act are applicable only in cases where the recovery is effected from the person of the accused and not from the bag carried by the accused but the contradictions in the testimony of the official witnesses are only to be appreciated to elicit the truth in the case of the prosecution. In consideration of the above discussions and service of notice u/s 50 NDPS Act after recovery, the case of the prosecution becomes doubtful. No doubt that conviction can be based on the testimony of police witnesses but in that case the statements of witnesses should be consistent and inspire confident after scrutinizing with due care and caution. But in this case, the testimonies of official witnesses are not inspiring confidence.
24. PW6 ASI Devender has stated that on 4.2.2013, he alongwith HC Naresh and Ct. Naveen were on foot patrolling in the area of PS Bindapur and when at about 4.15 p.m they reached near water tank park FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 15/31 behind NSIT JJ Colony PH.1,2&3, the saw the accused coming out from the gate of park carrying a plastic bag on his right shoulder. In cross examination he has stated that they left for patrolling at about 1 p.m. He has further stated that before that he was attending calls at PS and to attend that call he went alone. He has further stated that Ct.Naresh and Ct. Naresh were not with him at the time when he went to attend the call. Reverting back to the statement of PW5 HC Naresh, he has stated that it is correct that since 8 a.m to 4.15 p.m they all three remained in the patrolling duty. They patrolled Sainik Nagar, Mansa Ram Park, PH.1 or Ph.2 of Sec.3 Dwarka till 4.15 p.m. They were on foot on patrolling duty. They took their lunch in the mess. It is correct that during said period, they came back to PS. ASI Devender made their arrival entry in PS and thereafter they again left for patrolling duty at about 2 p.m. They came back to PS at about 1 p.m. The patrolling duty timing was from 8 am to 10 p.m. It is correct that on that day they did not go for patrolling the area after 7.30 p.m.
25. PW6 has stated that they left PS for patrolling at about 1 p.m whereas PW5 has stated that they reached at PS alongwith PW6 and PW1 and had food in the mess during the patrolling and again departed at 2 p.m and arrival entry was made by PW6. PW6 has further stated that before that he was attending call at PS and to attend that call he went FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 16/31 alone whereas PW5 has stated that it is correct that since 8 a.m to 4.15 p.m, they all three remained in the patrolling duty.
26. PW1 Ct. Naveen has stated in his cross examination that after his departure from the police station, first of all they went to Binda Pur Matiala Road, then to Machhi Chowk then to JJ Colony PH.1 then to Vardhman Market Road and then they reached at the park. PW5 HC Naresh has stated that they patrolled Sainik Nagar, Mansa Ram Park Ph.1 & 2 of Sec. 3 Dwarka till 4.15 p.m. Both have given contradictory statements about the patrolling places. Further PW1 has stated that they all were on their bikes. He was having his own bike. They all were having their respective bikes. PW6 has made contradictory statement as he has stated that at about 1 p.m Ct. Naveen and HC Naresh accompanied him for patrolling at the direction of senior officers. PW5 HC Naresh and PW6 ASI Devender have stated that they were on foot while on patrolling but contradicting the same PW1 Ct. Naveen has stated that they were on bikes, he was having his own bike, they were having their bikes. Considering the above evidence on record, it is crystal clear that there are glaring contradictions in the statements of investigation witnesses regarding going on patrolling and reaching at the spot. The evidence on record do not inspire confidence as the contradictions in the statements of witnesses goes to the root of the matter.
FIR no.56/13State V/s Sunny Kumar @ Mangal Page No. 17/31
27. PW7 SI Naresh Kumar has stated that he reached at the spot with Ct. Naveen at about 7.30 p.m on his own bike. He remained at the spot upto 10 p.m. PW6 SI Devender has stated in cross examination that SI Naresh came at the spot at about 7 to 7.15 p.m. He left the spot at 7.45 p.m. PW5 HC Naresh has stated that on that day they did not go for patrolling in the area after 7.30 p.m. In this case PW1 Ct. Naveen , PW5 HC Naresh as well as PW6 ASI Devender have deposed that second IO prepared the site plan, arrested the accused and conducted his personal search. Their statements revealed that these witnesses were present at the spot till completion of proceedings i.e. 10 p.m as per statement of PW7 SI Naresh Kumar. But PW5 & PW7 SI Devender have stated that they remained present upto 7.30 p.m. So, the case of the prosecution is contradictory in this respect.
28. It is undisputed that no public witness was examined in this case. In case State of Punjab Vs. Baldev Singh, 1999 ((4) JT SC 595 it was held that : 'the provisions of Cr.PC relating to search, seizure or arrest apply to search, seizure and arrest under the Act also to the extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 18/31 the safeguards provided under the Act are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those to sections 100, 102, 103 and 165 per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguards would be violative of the reasonable fair and just procedure.'
29. Section 43 of the Act read with sec. (4) of Sec.100 Cr.PC contemplates that search should, as far as practicable, be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to establish that the association of such witnesses was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. The statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would strengthen the prosecution case. In other words, the Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 19/31 just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion.
30. The present case of the prosecution hinges solely on the testimony of police officials as the prosecution has failed to associate any public witness during arrest, search and seizure proceedings. As per prosecution case, PW1 Ct. Naveen, PW5 HC Naresh and PW6 ASI Devender were on patrolling duty and at about 4.15 p.m, accused was seen coming from the gate of park and on suspicion he was apprehended. As discussed above, the forming of raiding party is doubtful in view of the contradictory statements made by the investigation witnesses. The accused was apprehended but PW6 SI Devender has failed to stated that he ever got recorded the information regarding his apprehension in PS. He has also failed to stated that the said information was sent to senior officials by him. As per statement of PW6 SI Devender two public persons were seen near the gate of the park and they were requested to join the proceedings by sending Ct. Naveen to them but the did not incline to join and went away. But PW1 Ct. Naveen has nowhere stated that he was sent by PW6 to ask those persons to join the investigation. PW7 SI Naresh has stated that in the park there were 45 persons busy in evening walk. He asked them to join the investigation but they refused to join showing their inability and went away from the park. He did not FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 20/31 serve any notice to any public person. PW5 HC Naresh has stated that it is correct that place of apprehension of accused was surrounded by residential houses. At that time there was no one present in the park so IO did not call any person from the park or residential colony. PW1 Ct. Naveen has also stated that residential houses are situated on both the sides of the water tank park. After apprehending the accused and before his search, IO did not call any person from the residential houses. The witnesses have made contradictory statement regarding availability of the public witnesses in the park. Further, considering the above factors, there was sufficient time with the prosecution to procure the attendance of public witnesses to witness the search of accused and seizure of ganja from his possession. This is not a case where due to urgency of matter or for any other reason, it was not possible to comply with the provisions of subsection(4) of Sec.100 for associating public witnesses during the course of search and seizure. It is also undisputed that the accused was apprehended from near NSIT Gate, JJ Colony, Ph.1&II. The witnesses of the raiding party have stated that the public persons were approached but they declined to join the raiding party. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Subsection (8) of Section 100 Cr.PC., provides that FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 21/31 any person who without reasonable cause, refused or neglects to attend and witness a search under section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence u/s 187 IPC. In the case in hand there is nothing on record to show that the IO had served or even attempted to serve the notice in writing upon any public witness. In case law Rattan Lal Vs. State, 1987(2) Crimes 29 it is held that : '........In the case in hand the seizure and the arrest have been made u/s 43 of the NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by subsection (4) of Sec.100 Cr.PC. The explanation offered is that public witnesses were requested but they declined to cooperate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to cooperate without reasonable cause inspite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence u/s 187 IPC and this has been clearly spelt out in sub section (8) of Sec.100 Cr.PC. In the present case there is vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 22/31 is a deliberate attempt to defeat the legislative safeguards.'
31. In the instant case, the accused was apprehended from the place surrounded by residential colony. It has come in evidence that there were some persons in the park. The time of apprehension is stated to be around 4.30 p.m which is not the odd hours. PW1 has stated that after apprehending the accused and before his search, IO did not call any person from the residential houses. In this case, in one hand there is evidence that independent witnesses were asked to join and on the other hand there is also conflicting evidence that IO had not made any effort to join any witness. The place from where the accused was apprehended is a residential place and time of seizure was not odd hours. In view of the matter, it may safely be inferred that although public witnesses were available but no attempt was made by the officer concerned to associate them at the time of seizure of ganja.
32. In case Law Prithvi Pal Singh @ Munna Vs. State, 2000 (1) JCC Delhi 274, it is stated in head note that : 'NDPS Act 1985, Sec. 21 - Search and seizure of heroin and it is said that all documents were prepared at the spot but only FIR was recorded afterwards - But number of FIR inserted in all those documents - It means either the FIR was registered prior to recovery of heroin or the number of FIR FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 23/31 was inserted in the documents later on - Both the situations reflect fatal on prosecution case.' In case Law Kailash @ Kuddu Vs. State of Delhi, 2000(1) JCC (Delhi) 162 it is stated in headnote that : 'NDPS Act. 1985, Sec.21 - Alleged recovery of 80 gms. Of smack - rukka, personal search memo and seizure memo were prepared at the spot But surprisingly aforesaid documents bear the number of FIR on the top of aforesaid documents in the same ink and same handwriting - The prosecution offered no explanation as to how the number of FIR appeared on these documents - Held: This circumstance seriously reflect upon the veracity of prosecution story regarding recovery of contraband from appellant's possession
- Conviction set aside.' In case law Ashok Kumar Vs. State, 2000 (1) JCC (Delhi 21) it is stated in headnote that : 'NDPS Act - Sec.20 - 25 gms charas recovered - Link evidence in present case missing - It is prosecution cast that sample of charas and remaining parcels of charas completed at the spot and also CFSL form was filled up there and thereafter FIR was registered - But straugely all these documents prepared at the spot contain number of FIR at the top - It means that prosecution story was made up and far from reality - Therefore, benefit of doubt must go to the accused - Order of acquittal accordingly.
33. PW1 Ct.Naveen has stated in cross examination that IO FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 24/31 prepared the seizure memo completely in his presence including FIR, PS and under section and then he signed the same. He further stated that when he signed the notice u/s 50 NDPS Act, the case particulars were already written on the top. PW6 SI Devender has prepared the seizure memo and notice u/s 50 NDPS Act. The accused was apprehended and thereafter after preparation of rukka, it was sent for registration of case FIR. It means FIR number, under section was not available to PW6 at the time of preparation of these documents. However, as per statement of PW1 he signed these documents when FIR no., under section and PS were written on the same. This seems that FIR number was written on the documents at the time of preparing the same and therefore it seems that all the documents were manipulated and prepared in the PS. The preparation of documents by the police official at the spot create suspicion. Further on perusal of the seizure memo of ganja Ex.PW1/A and notice u/s 50 NDPS Act Ex.PW1/E revealed that the FIR no. was written at the time of preparation of the same as the FIR number has been written with same pen and ink. Contradictory version of PWs further create doubt that these documents were prepared after registration of FIR.
34. In case law Matloob Vs. State, 1997, JCC 418 it is stated that: 'NDPS Act - Sec. 20 - Charas seized - link evidence FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 25/31 missing - record disclosed that CFSL form and seal remained with the IO during the whole period of about one month - sealed parcel and CFSL form sent for chemical examination after one month - delay not at all explained - benefit goes to accused/appellant.'
35. In consideration of the above case law, in the present case the ganja was seized on 04.02.2013 and sent to FSL on 27.2.2013. As per the case of prosecution, the seal was given to HC Naresh. PW6 SI Devender has stated that he took back his seal from HC Naresh on the next date. No memo was prepared for handing over or taking over of the seal. PW5 HC Naresh has stated that he returned the seal to IO on the same day. First of all there are contradiction in respect of handing over and taking over of seal by which the recovered substance was sealed. Secondly, there is no handing over or taking over memo was prepared. Thirdly, as per statement of HC Naresh, the seal was given to IO on the same day. The case property remained in PS for about 23 days and thereafter sent to FSL. During the said period, the seal by which it was sealed came into possession of IO. Another seal was with Inspector Rajbir Lamba. Insp.Rajbir Lamba has not been examined in this case by the prosecution. In case law 1997(2) CC Cases 179, it is stated in head note that non production of CFSL form creates doubt - Evidence showed that the seal had been taken back before the sample had been sent to CFSL.... The FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 26/31 appellant acquitted. There is no explanation regarding delay in sending the ganja to FSL in this case. There is doubt in this case specifically when the seal came in possession of IO before sending the sample to FSL.
36. In case law Jagan Nath Vs. State of Panjab, 1997 CRI. L.J 606 it is stated in headnote (B) that : 'Narcotic Durgs and Psychotropic Substances Act (1985), S.55 - 'Tempering with sample - Evidence -
Parcel sealed at spot different from one which was deposited in malkhana and still further quite different from the one received by office of Chemical Examiner - Possibility of tampering not ruled out - Nonproduction of independent public witness - Prosecution case doubtful'.
37. In case law Jagan Nath Vs. State of Panjab, 1997 CRI. L.J 606 it is stated in headnote (B) that : 'Narcotic Durgs and Psychotropic Substances Act (1985), S.55 - 'Tempering with sample - Evidence -
Parcel sealed at spot different from one which was deposited in malkhana and still further quite different from the one received by office of Chemical Examiner - Possibility of tampering not ruled out - Nonproduction of independent public witness - Prosecution case doubtful'.
38. In the present case, PW6 SI Devender who is IO of this case FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 27/31 has stated that Pullanda of sample was given no. S1. He seized the pullanda of sample S1, the plastic bag containing ganja and form FSL vide common seizure memo Ex.PW1/A. In cross examination he has stated that he does not remember what number or mark was given to sample pullanda.
Question : Can you tell whether you gave sr.no. 1, S or S1 to sample pullanda?
Answer: He does not remember.
39. He has further stated that he gave sr.no.S1 to main pullanda consisting of 4 kgs ganja. Only one FSL form was prepared and no carbon copy of the same was prepared. It is correct that in all the documents prepared by him in this case, he has no where mentioned that the sample pullanda were given sr.no. S or S1. I have perused the seizure memo Ex.PW1/A wherein it has been mentioned that 2 kgs ganja was taken out of the recovered substances, sealed with the seal of DS and given sr.no.1. So, as per seizure memo, sample ganja was given sr.no.1. I have perused the statement of PW8 Dr. Kanak Lata Verma who has examined the ganja. The report of FSL is Ex.PW8/A. I have perused the said report. As per report Exhibit 'S' was examined by her while as per seizure memo sample ganja was given sr.no.1. When sample ganja was given sr.no. '1', it is not understandable as to how sample 'S' was sent to FSL. The evidence on record in this case shows that the sample parcel FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 28/31 which was sealed at the spot is quite different from the one which was received in FSL. This fact casts grave doubt in the case of the prosecution. Thus a vital link in the chain of the prosecution case is missing and it creates a doubt that the samples which were deposited in the FSL was the true representative of the recovered substance and that there was no tampering. This clearly indicate that there was some manipulation or tampering of case property in this case.
40. In Case law 87(2000) DLT 585 it is stated in head note NDPS Seizure of charas - CFSL form - neither deposited with Malkhana mohrar nor sent to CFSL : Vital lapse in prosecution version:
.... Depositing of CFSL form significant in NDPS Act - Prosecution to prove that form was duly deposited with malkhana and same sent from Malkhana to CFSL office .... Accused entitled to benefit of doubt.
41. In the present case PW1 has stated in cross examination that SHO had only affixed seal on the pullanda at the spot and did not sign or prepared any document or affixed his seal on any other document. It clearly means that no FSL form was prepared or no seal was affixed or no signatures were put on the FSL form at the spot. PW4 HC Karan Singh, in cross examination has stated that there is no mention of sending of FSL form to FSL Rohini in the road certificate. It is also correct that FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 29/31 there is no mention of receiving the FSL form in FSL Rohini. I have perused the register no.19 copy of which is Ex.PW4/A, RC Ex.PW4/B and acknowledgment Ex.PW4/C. But no where there is mentioned about FSL form. Even in FSL result Ex.PW8/A, there is no mention about receipt of FSL form along Ex.'S' in FSL Rohini. Insp.Rajbir Lamba has allegedly deposited the case property alongwith document in Malkhana. But prosecution has failed to examined Insp.Rajbir Lamba in this case. So, non sending of FSL form to FSL Rohini, create doubt about the seizure of alleged ganja from accused. Thus a vital link in the chain of the prosecution case is missing and it creates a doubt that the samples which were deposited in the FSL were the true representative of the recovered substance and that there was no tampering.
42. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
FIR no.56/13State V/s Sunny Kumar @ Mangal Page No. 30/31
43. In view of my above discussions, the link in the chain of the prosecution evidence is missing at every nook and corner. In cases, where the legislature has provided for such stringent punishment, the Court would be justified in insisting for standard of proof beyond the shadow of doubt against the accused. Thus, I am of the opinion that the prosecution has failed to prove its case beyond any reasonable doubt and the accused is entitled for the benefit of doubt. I therefore give the benefit of doubt to accused Sunny Kumar @ Mangal and he is acquitted for the commission of offence punishable u/s 20(ii)(b) of NDPS Act.
44. Accused is on bail in this case. He is directed to furnish personal bond in a sum of Rs.25,000/ with one surety in the like amount in view of the provisions contained u/s 437A Cr.PC. Bail bond furnished and accepted.
File be consigned to record room.
Announced in the open Court on 11.09.2014.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI FIR no.56/13 State V/s Sunny Kumar @ Mangal Page No. 31/31