Delhi District Court
State vs . Mahender on 13 February, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
STATE Vs. MAHENDER
FIR No. 466/2006
PS: MOTI NAGAR
U/S: 27/61/85 NDPS ACT
Sr. no. of the case : 93/3/10
Unique Case ID no. : 02401R0868272007
Date of commission of offence : 31.08.2006
Date of institution of the case : 08.04.2008
Name of the complainant : Inspector Sudesh Ranga
Name of accused and address : Mahender
S/o Sh. Bansh Raj
R/o D-7/16, Sultan puri,
New Delhi.
Offence complained of or proved : U/s 21/61/85 NDPS Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date reserve for judgment : 29.01.2015
Date of judgment : 13.02.2015
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JUDGMENT
1. The story of the prosecution in brief is that on 31.08.2006 at about 05:00 PM in front of SBM checking point, main Najafgarh Roard, Moti Nagar, Delhi, accused was found in possession of 5gms smack (Monoacetyl morphine, Acetly codeine) hereinafter referred to as "smack". As per prosecution the police officials were checking the vehicles, in the meantime accused de-boarded a bus and started FIR No. 466/2006, PS Moti Nagar Page 1/11 running away from the police party on suspicion he was chased and apprehended by police official, and on his formal search 5gms smack was found from his person.
2. The prima facie case U/s 21 The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as "NDPS Act") was found to be made out against the accused. Accordingly, charge framed against the accused. The accusation was read over and explained to accused to which he pleaded not guilty and claimed trial.
3. The prosecution got examined eight witnesses in support of its case i.e. PW1 HC Umrao Singh, PW2 Ct. Shiv Prasad, PW3 Ct. Niranjan, PW4 Inspector Dinesh Kumar, PW5 HC Anand Swroop, PW6 SI Padam Singh, PW7 Inspector Sudesh Ranga and PW8 Ct. Sansveer.
4. Statement of accused U/s 313 of Cr.P.C. was recorded, in which all the incriminating evidence was put to accused. Accused stated that he is innocent and has been falsely implicated in the present case. Accused opted not to lead any evidence in defence.
5. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
Decision and Brief reasons for the same
6. Before giving the findings with respect to present case, this Court will discuss evidence led by prosecution.
7. PW1 HC Umrao Singh stated that on 31.08.2006 he received DD No. 22A at about 04:45 PM (Ex.PW1/A). He also lodged DD No. 25A at about 07:30 PM (Ex.PW1/B) and DD No. 27A at about 07:00PM (Ex.PW1/C). It is stated by him that he recorded FIR No. 466/06 (Ex.PW1/D) on rukka sent by SI Sudesh. He also made endorsement on rukka which is Ex. PW1/E.
8. PW2 Ct. Shiv Prasad stated that on 31.08.06 he was posted at PS Moti Nagar and he alongwith SI Sudesh Ranga and Ct. Sansveer were on vehicle checking duty at main Najafgarh Road in front of SBM, at FIR No. 466/2006, PS Moti Nagar Page 2/11 about 05:00 PM they stooped one DTC bus for checking purpose and in the meantime accused (correctly identified) de-boarded from the back gate of the bus and they apprehended accused and SI Sudesh Ranga took the formal search and during the search from the inner side of pocket of pant worn by accused one plastic panni was recovered and upon checking it was found containing smack. It is stated by him that upon recovery IO flashed a wireless message and SHO reached at the spot. Thereafter, IO served a notice U/s 50 NDPS Act. It is stated that thereafter he measured the contraband and it come to 5 grams. It is stated by him that 1 gram of smack was separated as a sample. It is stated that IO filed form CFSL and thereafter the sample, contraband form CFSL and remaining recovered smack was sealed with the seal of SR and seal after use was handed over to this witness. It is stated by him that thereafter SHO sealed the case property with the seal of DK vide seizure memo Ex.PW2/A. It is stated that IO prepared the rukka and handed over the same to Ct. Sansveer and case property was handed over to SHO. It is stated that Ct. sansveer went to PS and got the FIR registered and handed over the copy of FIR and rukka to ASI Padam Singh who conducted further investigation. It is stated that IO arrested accused vide memo Ex.PW2/B and conducted personal search vide memo Ex.PW2/C and recorded his statement and gave the information regarding arrest of accused to his wife. This witness correctly identified the case i.e one selaed pullinda sealed with the seal of SR and DK, same is exhibited as Ex.P1. He also identified the other pullinda sealed with the seal of CFSL, same is exhibited as Ex.P2. In his cross-examination, it is stated by him that all the particulars on the pullandas including FIR number were written in the handwriting of SI Sudesh Ranga. It is accepted by him that reply to the notice under section 50 NDPS Act was not reduced in writing. It is stated by him thtat the table and chair were procured from the near by tea stall for writing work. It is accepted by him that teal stall vendor was not asked to join the proceedings. It is stated by him that smack was weight after separating from the panny on an electric scale. It is stated by him that FIR No. 466/2006, PS Moti Nagar Page 3/11 he returned the seal after two three days.
9. PW3 Ct. Niranjan stated that on 01.09.2006 he was posted at ACP office Patel Nagar and was working as diary dispatch clerk, it is stated that an information U/s 57 NDPS was received at office in case FIR No. 466/06, U/s 21/61/85 NDPS Act PS Moti Nagar. It is stated by him that he made relevant entry in the register at Sr. No. 3251/ACP/PN dated 01.06.2006, the same is Ex.PW3/A (OSR). Carbon copy of the information is exhibited as Ex.PW3/B (OSR).
10. PW4 Inspector Dinesh Kumar stated that on 31.08.06 at about 05:05 PM he received an information through wireless message that one person is apprehended by SI Sudesh Kumar at SBM Main Najafgarh Road alongwith some powder like smack, on that he immediately reached the spot being the then SHO. It is stated by him that IO gave notice U/s 50 NDPS Act to accused. It is stated by him that IO measured the weight of the alleged smack which was found to be 5 gms. It is stated that one gram was retained as sample and remaining was sealed with the seal of SR by the IO. It is stated that he put his seal of DK on both the pullands and seizure memo and form FSL. It is stated by him that he handed over the seal to It is stated by him that he deposited the sezied articles with MHC(M).This witness correctly identified the case property exhibited as P-1 and P-2 (sample one gram and FSC2007/C-229). This witness also identified the cloth of pullanda exhibited as Ex.P-3. In his cross-examination, it is stated by him all the particulars written on both the pullandas are in his own handwriting, again said that only FIR number is in his handwriting. It is accepted by him that on one pullanda particulars of the case are written in red ink and one the second in the blue ink and when the pullandas were handed over to him FIR number was not written on the same. It is stated that when he left with the case property by that time FIR has not been registered. It is stated by him that he gave option of search by a Gazetted Officer or by a metropolitan magistrate in notice U/s 50 NDPS Act, to the accused, this witness was confronted with the statement Ex.PW4/A where time is not recorded. It is stated by him that he has FIR No. 466/2006, PS Moti Nagar Page 4/11 mentioned in his statement that accused refused the option, this witness was Confronted with the statement Ex.PW4/A, where it is not so recorded. It is sated by him that he has mentioned in his statement that both the seals were affixed on FSL form, this witness was confronted with statement Ex.PW4/A where it is not so recorded.
11. PW5 HC Anand Swroop stated that on 03.09.2006 he was posted as MHC(M) of PS Moti Nagar. It is stated by him that at the request of IO, he gave sample to him for examination by FSL Rohini vide RC No. 7/21/07 dated 23.01.2007 and this witness made relevant entry in Sr. No. 2530/06 in Register No. 19 (Ex.PW5/1). It is stated that on 25.04.2007, the FSL result was received through HC Butta Singh. Relevant entry made in Register No. 19 at Sr. No. 2530/06 (Ex. PW5/B).
12. PW6 SI Padam Singh stated that on 31.08.2006 he alongwith Ct. Sansveer had gone to the spot where SI Sudesh Ranga and Ct. Shiv Prasad met them. It is stated by him that SI Sudesh Ranga handed to him, prepared carbon copies of documents, original seizure memo and accused for further investigation of this case. He exhibited site plan as Ex.PW6/A. It is stated by him that he arrested accused and prepared arrest memo Ex.PW2/B and personal search memo Ex.PW2/C. It is stated that he recorded accused's statement. It is stated that on 23.01.2007 he obtained the sealed samples, pullanda of this case alongwith FSL form from MHC(M) for depositing the same in FSL Rohini and deposited the same in FSL and collected receipt. It is stated that he received the FSL report which is Ex. PW6/B. It is stated that after completion of investigation challan of this case was sent to court through SHO. In his cross examination, it is stated by him that no separate DD entry was recorded by the duty officer regarding the handing over the investigation to him and his departure from the PS. It is accepted by him that he did not collect the said DD entry of departure nor place the same on record. It is accepted by him that he had not made any departure entry on the day when he had taken the sample to FSL. It is stated by him that SHO was not present at the spot when he FIR No. 466/2006, PS Moti Nagar Page 5/11 reached there.
13. PW7 Inspector Sudesh Ranga stated that on 31.07.2006 he was posted at PS Moti Nagar as SI. On that day at about 05:00 PM he alongwith Ct. Shiv Prasad and Ct. Sansveer were on vehicle checking duty at SBM, Main Nazafgarh Road, Moti Nagar, Delhi. At the same time, a DTC bus came and stopped there and accused de-boarded from the back gate of the bus and started fleeing away on seeing police party. On suspicion, he was apprehended with the help of other two Constables. It is stated by him that on search, one polythene containing a powder like "smacknuma" was recovered from inner pocket of accused's pants. On interrogation, accused disclosed that the recovered powder was smack. It is sated that he flashed a message on wireless set and called SHO PS Moti Nagar at spot, who came at the spot within five minutes. It is stated by him that he requested 6-7 public persons to join the investigation but none agreed and left without disclosing there name. It is stated by him that he gave a notice U/s 50 NDPS Act to the accused, which is Ex.PW7/A. It is stated that he measured the recovered smack and found the total was 5 gms. He separated 1 gm as sample. It is stated that he prepared two pullindas of sample and remaining smack respectively and sealed with the seal of 'SR'. Same were taken into possession vide seizure memo already Ex.PW2/A. Both the pullindas were re-sealed with the seal of 'DK' by SHO PS Moti Nagar Inspector Dinesh Kumar Sharma. Form CFSL was filled up. Seal after use was given to Ct. Shiv Prasad. SHO PS Moti Nagar left the spot alongwith both the pullindas, CFSL form and seizure memo. It is stated that he prepared rukka, which is Ex.PW7/B and handed over the same to Ct. Sansveer for registration of FIR. Ct. Sansveer went to the PS, got the case registered and returned at the spot alongwith ASI Padam Singh and copy of FIR and original rukka handed over to ASI Padam Singh. It is stated that he handed over the accused to ASI Padam Singh. ASI Padam Singh prepared site plan at his instance, which is already Ex.PW6/A. It is stated that his statement U/s 161 Cr.P.C was recorded. Thereafter, he left the spot. In his cross FIR No. 466/2006, PS Moti Nagar Page 6/11 examination, it is stated by him that the reply to notice U/s 50 of NDPS Act was not record. It is accepted by him that FIR number and the other particulars on the pullindas are in his own handwriting. It is stated by him that there was no shop near the post and he did all the proceedings while sitting on patri. It is stated by him that he got his seal back on the next day.
14. PW8 Ct. Sansveer deposed on the same lines as PW7 and he also exhibited the case property as ex.P1 and P2 and P3. In his cross examination, it is stated by him that he went to PS for registration of FIR by DTC bus. It is stated by him that scale and weights were in the bag of the IO. It is stated that weight of 1gm and 5gm were used to weigh the smack and sample of smack.
15. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
16. After considering respective arguments and evidence led by prosecution, this Court is of the opinion that prosecution has not been able to prove guilt of accused beyond reasonable doubt. The reasons as to why this Court has arrived at such a conclusion are as follows:
i. Firstly, no DD entry has been proved on record by prosecution in order to show that PW2, PW7 and PW8 were indeed on patrolling duty on the day of alleged recovery of smack from accused. It is an important missing link in the version of prosecution. ii. Further PW7 SI Sudesh Ranga in his examination-in-chief has not FIR No. 466/2006, PS Moti Nagar Page 7/11 stated that he offered his personal search to accused before taking his search. Principles of natural justice demanded that accused should have been offered search by recovery witness who allegedly recovered case property from accused and should have reduced this fact into writing which has not been done in present case and which fact diminishes credibility of prosecution version. Reliance being placed on a judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa. In this situation, it can be said that search of the accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal & motivated. Further more though it is claimed by PW7 that he had given due notice under section 50 NDPS Act to the accused, which was allegedly refused by the accused, however, refusal of the accused was not recorded in writing. This fact raises a doubt if actually such a notice was served on the accused.
iii. Further, from prosecution version, it does not appear that before conducting the alleged formal or personal search of the accused , recovery witness asked any public person to witness search. The place at which accused was allegedly apprehended appears to be a public place and it is not the case of prosecution that public witnesses were not available at that place. PW7 has stated in his examination in chief that he asked public persons to join the proceedings but none agreed, however, he asked public persons to join the proceedings after alleged recovery of smack from accused, as it is stated by him that he asked the public to join only after SHO had reached the spot. Public witnesses should have been asked to join the proceedings before alleged recovery from accused and after smack was allegedly recovered from accused, there is no use asking public persons to join the proceedings. Non joining of public witnesses causes a dent in credibility of prosecution version and had public witnesses witnessed search of accused, prosecution version would have been more authentic. This is not to say that FIR No. 466/2006, PS Moti Nagar Page 8/11 testimony of police officials is not reliable but addition of public witnesses before search of accused would have made prosecution version more reliable. As it is established principle of law that where a number of public persons would be available, but no public witness has been engaged in this case nor any sufficient explanation given for non-joining the public witness at the time of apprehension of accused. In the case where the public witness are easily available and they are not being joined without any justified reason, the statement of police witnesses only cannot be relied. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) in which High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
iv. Further as per the statement of PW1 HC Prakash Singh, the seal after use on the pulanda containing the smack allegedly recovered from the accused was given to none else but to Ct. Shiv Prasad (PW2), who was himself the recovery witness and such police official himself is a material prosecution witness being one of the witnesses to the alleged recovery of illicit liquor from the possession of the accused. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication and planting of the case property cannot be ruled out beyond reasonable doubt.
FIR No. 466/2006, PS Moti Nagar Page 9/11Furthermore, it is stated by PW2 Ct. Shiv Prasad that he returned the seal after 2-3 days. On the other hand, it is stated by PW7 SI Sudesh Ranga that he received the seal on the very next day. No handing over or returning memo of the seal of the case property in question was prepared or filled on recored.
v. It is stated by the PW7 that he had sent 1gms smack as sample and duly sealed the sample pullinda. However, the FSL report states that the sample sent to them was weighing approx. 3.2gms. There is nothing on record to explain this discrepancy. Further it is stated by PW2 that the smack was weighed on an electric scale, however, PW8 stated that scale and weights were in the bag of the IO. It is stated that weight of 1gm and 5gm were used to weigh the smack and sample of smack. From testimony of PW8 it appears that smack was weighed at a manual scale. The alleged recovery in the present case was effected on 31.08.06, however, sample was sent to FSL only on 23.01.07 i.e almost after 4 months. All it makes the recovery of smack from the possession of accused doubtful. These are material missing link in version of prosecution and tampering of case property in these circumstances cannot be ruled out.
vi. There is contradiction in the testimony of prosecution witnesses as it is stated by PW2 that they had brought table and chair from the nearby tea stall for carrying out the written proceedings at the spot. On the other hand, it is stated by PW7 that proceedings at the spot were carried out while sitting on the patri. It is also stated by him that there is no shop nearby.
17. In the circumstances when tampering in case property cannot be ruled out and version of prosecution is not trustworthy as discussed in various earlier paras of this judgment, this court is of the considered opinion prosecution has failed to prove guilt of accused beyond reasonable doubt and recovery of 5gms smack from the accused is doubtful. Accordingly it is a fit case in which benefit of doubt must be given to accused, which is accordingly given. Accused Mahender S/o FIR No. 466/2006, PS Moti Nagar Page 10/11 Sh. Bansh Raj is acquitted of offence U/s 21/61/85 NDPS Act. File be consigned to record room.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 13.02.2015 MM-04 (WEST)/DELHI
Containing 11 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 466/2006, PS Moti Nagar Page 11/11