Delhi District Court
State vs . Mujahid Ali Sc No. 38/11 on 27 September, 2014
State vs. Mujahid Ali SC No. 38/11
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 38/11
ID No. 02403R0072562011
FIR No. 44/2011
PS Special Cell
u/s 21 of NDPS Act
State Vs. Mujahid Ali
S/o Afsar Ali
R/o Village & PS Allahapur,
Dhobi Mohalla, Distt. Badaun, UP
Date of Institution : 01.10.2011
Judgment reserved on : 23.09.2014
Date of pronouncement : 27.09.2014
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act').
2. Briefly stated the allegations that can be culled out from the contents of the chargesheet and the documents filed with the same are as follows:
(a) On 26/7/2011 at about 03:30 PM, one secret informer came to the office of PS Special Cell/NR and informed SI Praveen Kumar him that one Mujahid Ali r/o Badaun, UP is indulging in supply of heroin from FIR No. 44/11 Page 1 of 30 State vs. Mujahid Ali SC No. 38/11 UP to Delhi and that he would be coming on 26/7/2011 between 06:3007:00 PM near GTB Hospital, New Delhi to supply heroin to someone.
(b) The information was brought to the notice of Insp. Attar Singh and ACP Sh. Subhash Tandon. DD entry no. 28 was also lodged in this regard and as per the directions of the ACP, a raiding team comprising of SI Praveen Kumar, ASI Rakesh, Kumar, HC Ram Niwas, HC Bijender, HC Rajbeer Singh and the secret informer left for GTB hospital at about 4:15 PM.
(c) On the way, the IO requested 45 passersby near ISBT Kashmere Gate and 45 passersby and 2 rehriwalas at the spot to join the raiding team but none agreed to do so. Thereafter, the members of the raiding team were briefed by SI Praveen Kumar and a trap was laid near Red light GTB hospital. IO SI Praveen Kumar himself took position alongwith HC Ram Niwas, HC Rajbeer and the informer near gate of the hospital facing the red light and the members of the raiding team positioned themselves at strategic points and started waiting.
(d) At about 06:30 PM, one person holding a black and orange colour polythene packet was seen coming from the side of red light on foot. He came and stood near GTB Hospital and appeared to be waiting for someone and was identified as Mujahid Ali, the suspect by the secret FIR No. 44/11 Page 2 of 30 State vs. Mujahid Ali SC No. 38/11 informer. After 5 minutes, he started moving in the same direction from where he had come and at that point of time, he was apprehended by the raiding team.
(e) The IO introduced himself and the members of the raiding team to the said person and apprised him about the information received by him.
On enquiry, the said person revealed his name as Mujahid Ali. He was then issued a notice u/s 50 of NDPS Act and was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said right and wrote his refusal in his own handwriting on the notice received by him.
(f) Thereafter, SI Praveen Kumar conducted the search of the black and orange colour polythene which the accused was carrying and on checking the same, it was found containing a black polythene. The black polythene in turn was found containing another white transparent polythene having cream colour powder in it. The said powder on testing with field testing kit, gave positive result for heroin. The recovered heroin was then weighed and its weight came out to be one kg. Two samples of 5 grams each were taken out from the same and put in two separate transparent polythenes and converted into cloth pullandas with the help of cloth and given mark A and B. Remaining heroin was put in the same transparent polythene, then in black colour polythene and then kept in orange and FIR No. 44/11 Page 3 of 30 State vs. Mujahid Ali SC No. 38/11 black colour polythene and thereafter converted into a cloth pullanda and given mark C. All the Pullandas were sealed by the IO with the seal of 'PK'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared. Cursory search of accused Mujahid was conducted but nothing incriminating was recovered from his body. NIL recovery memo was prepared in this regard.
(g) The Rukka was prepared and the same alongwith the seizure memos and sealed property was handed over to HC Rajbir, who thereafter went to PS Special Cell and produced the case property before SHO, PS Special Cell and handed over the rukka to Duty Officer for registration of FIR. SHO affixed his seal on all the pullandas and documents and also put the FIR number on the carbon copy of seizure memo, FSL form and all the pullandas with his signature and deposited the same with MHCM. Further investigation was handed over to SI Uma Shankar who came to the spot and prepared the site plan, arrested the accused and recorded his disclosure statement.
(h) Thereafter after completion of proceedings at the spot, the raiding team alongwith the accused went to PS Special Cell, Lodhi Colony and the accused was produced before Inspector Rajender Sehrawat. IO then also deposited the personal search articles of the accused in the Malkhana. FIR No. 44/11 Page 4 of 30
State vs. Mujahid Ali SC No. 38/11 (i) Thereafter, the accused was produced before the court and on an
application filed, his police custody was taken. During police custody he was taken to Bareilly, UP to arrest his associate Md. Sarwar about whom he had disclosed but the said associate could not be traced out. Arrest and seizure reports u/s 57 of NDPS Act were prepared and filed before the superior official. On 1/8/2011, the sample Pullanda of this case was sent to FSL, Rohini and after receiving the report from FSL, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed against the accused vide order dated 5/12/2011 for the offence punishable u/s 21
(c) NDPS Act to which the accused pleaded not guilty and claimed trial.
4. In order to prove its case against the accused, the prosecution has examined 10 witnesses in all.
5. PW2 HC Rajbir, PW3 HC Ram Niwas and PW4 SI Praveen Kumar, are members of the raiding team. They have deposed on similar lines in their examination in chief and have reiterated more or less the assertions made in the charge sheet. As per their depositions, the secret information received by PW4 was reduced into writing vide DD no. 28 and the departure of the raiding team from the PS was recorded vide DD no. 29. The said DDs have been exhibited as Ex.PW4/A and Ex.PW4/A respectively. The notice issued to the accused u/s 50 of the NDPS Act FIR No. 44/11 Page 5 of 30 State vs. Mujahid Ali SC No. 38/11 has been exhibited as Ex.PW2/B and the refusal written by the accused has been exhibited as Ex.PW2/C. The seizure memo prepared with respect to the recovery of the heroin has been exhibited as Ex.PW2/A. The tehrir prepared at the spot has been exhibited as Ex.PW4/C. The report prepared by PW4 u/s 57 NDPS Act has also been proved by him as Ex.PW4/D.
6. PW1 ASI M. Baxla Malkhana Incharge has inter alia deposed about the deposit of the case property/jamatalashi articles with the malkhana and has also proved the relevant entries thereof in the malkhana register.
7. PW5 Dr. Kanak Lata Verma, Senior Scientific Officer, FSL, Rohini has proved the report prepared by her with respect to the analysis conducted by her of the sample sent to FSL. The said report has been exhibited as Ex. PW5/A and as per the said report, the sample Mark A was found to contain diacetylmorphine, phenobarbital, paracetamol and caffeine and the percentage of diacetylmorphine and phenobarbital were found therein to be 17.28% and 14.85%.
8. PW6 SI Gyan Chand, SO to ACP (NR) has interalia deposed that as per the record maintained by him, DD no. 28 regarding secret information, report u/s 57 NDPS Act regarding seizure of heroin, prepared by SI Praveen Kumar and report u/s 57 NDPS Act regarding arrest of accused, prepared by SI Uma Shankar were received in the office of ACP and that FIR No. 44/11 Page 6 of 30 State vs. Mujahid Ali SC No. 38/11 the said reports were put before ACP. The DD, reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW6/A to Ex.PW6/F.
9. PW7 ASI Bhushan Kumar has interalia deposed that on 1/8/2011 on the directions of IO SI Uma Shankar, he had taken pullanda mark A and FSL form from MHC(M) and had got the same deposited with FSL, Rohini and after deposition he had handed over copy of receipt to MHC(M). He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
10.PW8 Inspector Rajender Sehrawat has inter alia deposed that on 26/7/2011 he was posted as SHO at PS Special Cell, Delhi and that on the said day, at about 10:00 PM, HC Rajbir had produced before him, three pullandas, one FSL Form and one carbon copy of seizure memo. As per the deposition of this witness, he had put the FIR number, his initials and his seal 'RSS' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana by ASI M. Baxla MHC(M) and had lodged DD no. 11 in this regard which has been exhibited as Ex.PW8/A. He has further deposed that the sample parcel were sent to FSL through ASI Bhushan Kumar.
11.PW9 Duty officer SI Balkar Singh has interalia deposed that he was the duty officer on 26/7/2011 and that on this date he had received the rukka FIR No. 44/11 Page 7 of 30 State vs. Mujahid Ali SC No. 38/11 of the present case through HC Rajbir and had registered the FIR, Ex.PW9/A and lodged DD no. 10 and 12, ExPW9/B and ExPW9/C in this regard.
12.PW10 SI Uma Shankar is the second investigating officer of the present case who has deposed that on reaching the spot he had met SI Praveen Kumar and he had produced before him the accused and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW10/A and had arrested accused Mujahid Ali vide arrest memo, Ex.PW10/B. According to this witness he had recorded disclosure statement of accused vide Ex.PW10/D and had conducted his personal search vide Ex.PW10/C. This witness has also inter alia proved the report prepared by him u/s 57 NDPS Act as Ex.PW10/E.
13.The entire aforementioned evidence was put to the accused and his statement was recorded u/s 313 Cr.PC. The accused has inter alia stated before this court that he was not apprehended by the police in the manner deposed by the prosecution witnesses and that no contraband was recovered from his possession. According to the accused he is a permanent resident of Badayun, UP and used to read and teach Quran in his village but that he was not doing very well in his village and therefore when his brother in law, Mehruddin who resides in Loni, Ghaziabad suggested him to that he should come to Delhi and try his luck here, he FIR No. 44/11 Page 8 of 30 State vs. Mujahid Ali SC No. 38/11 agreed to the suggestion of his brother in law and left Badayun, UP on 25/7/2011 at about 10:00 PM along with his friend Jahangir and reached Delhi at about 05:00 AM. He has further narrated before this court that after reaching Delhi he went to a factory in Anand Vihar where his friend Jahagir used to work and remained there till 03.00 PM and his brother in law in the meanwhile telephoned him to explain him where he had to reach and that therefore he then boarded an auto from outside the factory to reach the said place. According to the accused there was another person sitting in the said auto and after about 15 minutes the auto was stopped and the said person got down from the auto at a gol chakkar and that as soon as the said person got down from the auto, 810 persons in civil clothes surrounded him and caught hold of him and thereafter they dragged the accused down from the auto and took both of them to some building, which he later on came to know was the office of Special Cell, Rohini. The accused has further stated that he was made to sign many blank documents in the said office of Special Cell by the police officials and that under coercion and pressure he had signed the said documents.
14.The accused in support of his defence has produced two witnesses in the witness box, his friend Jahagir Alam and his brother in law Mehruddin. DW1 Jahagir has inter alia deposed that on a particular day, the date of which he does not recall he had come to Delhi alongwith accused FIR No. 44/11 Page 9 of 30 State vs. Mujahid Ali SC No. 38/11 Mujahid by bus and thereafter had gone to Seelampur in a factory where he used to go for stitching work and that the accused had left the said factory at about 0405.00 PM. DW2 Mehruddin has inter alia deposed that on 26.07.2011 he had a telephonic conversation with the accused at about 05.00 PM and had told him to come to Loni, Ghaziabad and had explained him the place where he had to reach.
15.Both the said witnesses were not crossexamined by the Ld. APP for State despite an opportunity granted.
16.After the conclusion of DE, Ld. APP Sh. Rajiv Mohan and Ld. Defence Counsel Sh. Anurag Jain both filed written submissions on record. However thereafter Ld. APP Sh. Rajiv Mohan was transferred and it is Ld. APP Sh. A.K. Mishra who has advanced oral arguments on behalf of the State.
17.On behalf of the State, Ld. APPs have submitted that the deposition of the prosecution witnesses and the documentary evidence proved on record sufficiently prove that the accused was apprehended and the contraband was recovered from him in the manner as alleged by the prosecution. It is also the submission of Ld. APP that the mere fact that the State has chosen not to crossexamine DW1 and DW2 is irrelevant because both these witnesses have only stated about the activities of the accused prior to the time of his apprehension.
FIR No. 44/11 Page 10 of 30
State vs. Mujahid Ali SC No. 38/11
18.On the other hand, Ld. Defence counsel Sh. Anurag Jain has contented that the failure of the investigating officials to join any public independent witness to the proceedings is fatal to the case of the prosecution in view of the fact that there are material discrepancies in the deposition of the police officials. Ld. Defence counsel has pointed out the said discrepancies in detail in the written submissions filed and his contention is that the said discrepancies prove that there was a non compliance of section 42, 50, 52 and 57 of the NDPS Act and that further the said discrepancies also show that the accused was not apprehended in the manner deposed by the prosecution witnesses (the said discrepancies/ contradictions will be discussed in detail, a little later in the judgment). He has also inter alia contended that in the present case when the contraband assertedly recovered from the accused has been described by the investigating officials as cream coloured but the FSL expert has referred to it as brown coloured substance, it stands proved that what was sent to the FSL was not what was recovered from the accused, more so when the prosecution has not been able to explain why the samples were not sent within 72 hours of the seizure and the preparation of the FSL form is also doubtful. His contention is therefore that on this short ground itself the accused is entitled to be granted benefit of doubt. In FIR No. 44/11 Page 11 of 30 State vs. Mujahid Ali SC No. 38/11 support of his contentions, Ld. Defence counsel has relied upon the following judgments:
● Ritesh Chakravarty Vs. State of MP 2006 (3) JCC (Narcotics) 150 ● Anup Joshi Vs. State 1999(2) CC Cases 314 ● Roop Chand Vs. State of Haryana 1999(1) C.L.R. 69 ● Rakesh @ Shankar Vs. State, Crl. Appeal No. 663 of 2010 decided on 01.01.2014 ● Mohd. Ibrahim Vs. State Crl. Appeal No. 426/2010 decided on 27.11.2010 ● Gurbarksh Singh Vs. State of Haryana 2001(3) SCC 28 ● Dudhnath Pandey Vs. State of UP AIR 1981 SC 911 ● State of Punjab Vs. Baldev Singh(1999) 3SCC 911 ● Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135 ● Gurcharan Vs. State 1993(2) Crimes 229.
19. In rebuttal, Ld. APPs for State Sh. Rajiv Mohan and Sh. A.K. Mishra have submitted that the absence of public witnesses in the raiding team is not a ground to doubt the prosecution's case when the testimony of the prosecution witnesses is otherwise credible. According to Ld. APPs the contradictions pointed out by Ld. Defence counsel in the depositions of prosecution witnesses are too minor to be given any importance and that even otherwise the police officials cannot be expected to have a photographic recollection of all details. It is their submission that once the prosecution has proved that all mandatory provisions of NDPS Act had been followed by the investigating officials, minor discrepancies in the depositions of the prosecution witnesses are not at all sufficient to FIR No. 44/11 Page 12 of 30 State vs. Mujahid Ali SC No. 38/11 grant any benefit of doubt to the accused. It has also been contended that there is no difference of colour in the contraband recovered and that sent to the FSL and merely because the members of the raiding team have chosen to describe the colour of the contraband as cream while the FSL report has referred to the colour of the sample sent to it as brown, is no ground to make an inference that what was recovered from the accused was not sent to the FSL. It is the submission of the Ld. APPs that people perceive shades of colour differently and that when during the exhibition of the case property and the samples, no difference was observed in their colour, the contention of the defence in this regard has no merit. According to Ld. APPs, mere delay in sending samples for analysis cannot be stated to have caused any prejudice to the accused persons as the seals on the sample tested by the FSL were found tallying with the seals found on the FSL form. In support of their contentions Ld. APPs have relied upon the following judgments:
● Ram Swaroop Vs. State 2013 Crl. L.J. 2997.
● Kashmiri Lal Vs. State of Haryana 2013 Crl. L.J. 3036.
20.I have carefully considered the submissions of the Ld. Counsels and have gone through the entire record very carefully. The first and foremost circumstance with respect to the version put forward by the prosecution regarding the apprehension of the accused, that has to be noted on record FIR No. 44/11 Page 13 of 30 State vs. Mujahid Ali SC No. 38/11 is that no genuine efforts whatsoever appear to have been made by the investigating officer PW4 SI Praveen Kumar for joining a public independent witness in the search and seizure proceedings. As per the version of the investigating agency the accused was to come in front of the G.T.B. Hospital and yet no effort whatsoever was made to join any office bearer of the said Hospital as an independent witness. It is indeed very strange that though the investigating officer, SI Praveen Kumar thought it necessary to ask passersby near ISBT Flyover and near the hospital to join the raiding team, he did not think it necessary to ask any of the office bearers of the G.T.B. Hospital to join the proceedings. This IO has also admitted in his deposition that though there were other residential and commercial premises also existing at the spot, he did not make any effort to join their occupants in the proceedings. He has not however bothered to give the reason as to why he did not make any such efforts. This court is constrained to observe that it has become a regular practice for the police officials of the Special Cell to depose in court casually that though they had made efforts to join passersby in the raiding team, none of the passersby agreed to join the proceedings and left the spot without disclosing their name and addresses. Despite a specific query by this court to the Ld. APP as to why the investigating agency only asks passersby to join the proceedings and does not make an FIR No. 44/11 Page 14 of 30 State vs. Mujahid Ali SC No. 38/11 effort to join in the proceedings, the occupants of residential premises or office premises near the spot of apprehension so, that at least both the investigating agency and the court are aware of the addresses of the persons who refused to accede to the request of a government public official, there is no explanation in this regard forthcoming from the prosecution. No doubt, one cannot argue with the contention of Ld. APP that public persons are hesitant to join police proceedings and as pointed out by Ld. APP, the Hon'ble Supreme Court in two of its recent judgments pronounced in NDPS cases and relied upon by Ld. APP, has observed that ordinarily the public at large show their disinclination to come forward to become witnesses but the least that is expected is that the investigating agency must be able to satisfy the court that genuine and sincere efforts were made by the investigating officer to make public persons join the proceedings. It has been repeatedly held by the higher courts that in such cases as the present one, the investigating agency must show that sincere efforts were made to join independent witnesses and that the investigating agency cannot merely take a stand that public witnesses refused to join the investigation. In this regard particular reference is made to the judgments reported as Ritesh Chakravarty Vs. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150, Anup Joshi FIR No. 44/11 Page 15 of 30 State vs. Mujahid Ali SC No. 38/11 Vs. State 1999(2) C.C. Cases 314, Roop Chand Vs. State of Haryana 1999(1) C.L.R 69. In Ritesh's case (supra), the Hon'ble Supreme Court has depreciated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on request of the police officials. In the other two judgments, it has been observed by the Hon'ble High Courts that the failure to proceed against the public persons who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence. In the present case also, as discussed hereinabove, this court finds the deposition of the investigating official that he had made genuine efforts to join public witnesses in the proceedings as not worthy of credence.
21.Now in view of the failure of the investigating official to have given a plausible explanation for the non joining of any public independent witness in the search proceedings, it becomes incumbent upon this court to scrutinize the prosecution evidence produced by the police officials very cautiously and if one does so, it becomes apparent that the prosecution has not come forward with true facts before this court and has failed to prove its case against the accused beyond reasonable doubt. The reasons for holding so is that a consideration of the evidence produced by the prosecution reveals that at every step of the proceedings FIR No. 44/11 Page 16 of 30 State vs. Mujahid Ali SC No. 38/11 assertedly conducted at the office of the Special Cell and the spot, there are material discrepancies between the depositions of the members of the raiding team. The said discrepancies are as follows:
(a) The first of the discrepancy is with respect to the manner in which the secret information was received by the main investigating officer PW4 SI Praveen Kumar in this case. According to the deposition of this official, on 2607.2011 at about 03.30 PM a secret informer had come to meet him in the office of Special Cell and had given him the information in question about the accused. In his crossexamination this witness has categorically deposed that when the secret informer had met him he was sitting alone in his room and that after the secret informer had relayed the him the secret information, he took him to the room of Inspector Attar Singh. He further has categorically deposed that he had first reduced the secret information into the roznamcha and only thereafter had gone to the room of Inspector Attar Singh. He has also specified that when the secret informer had come to his room initially, very little conversation had taken place between him and the secret informer. In other words as per deposition of this witness the secret informer had come to him at about 03.30 PM, he had spoken to him for a few minutes, had made an entry in the roznamcha and had then taken him to the room of Inspector Attar Singh. Completely contrary to this deposition is the deposition of PW2 FIR No. 44/11 Page 17 of 30 State vs. Mujahid Ali SC No. 38/11 HC Rajbir who has inter alia stated in his crossexamination that he was present alongwith SI Praveen when the secret informer had first met SI Praveen Kumar and that thereafter SI Praveen had taken the secret informer to the room of Inspector Attar Singh. He has further categorically deposed in his crossexamination that SI Praveen had reduced the secret information into writing only after he had returned from the room of Inspector Attar Singh alongwith the secret informer and that the secret information was reduced into writing at about 04.00 PM.
There is a third version of the aforementioned events by PW3 ASI Ram Niwas. According to this witness he alongwith SI Praveen, HC Rajbir, ASI Rakesh and HC Bijender were all sitting in the room of Inspector Attar Singh on 26.07.2011 and that he had seen that the secret informer had come and had made some conversation with SI Praveen. Thus these three prosecution witnesses PW2, PW3 and PW4 have given three different versions of whom the secret informer had first met and in the presence of who all he had relayed the information to SI Praveen Kumar. This court does not at all agree with the submissions of Ld. APPs that since the information relating to a secret informer is confidential, this court should not given much weightage to the circumstances in which the secret informer met the police officials in question. In the opinion of this court when the version of the prosecution is that the secret informer had FIR No. 44/11 Page 18 of 30 State vs. Mujahid Ali SC No. 38/11 come to the office of Special Cell and the prosecution witnesses have deposed about the same, this court is bound to take note of the discrepancies in the depositions of the said prosecution witnesses to examine the veracity of the case put forward by the prosecution.
(b) The second major discrepancy that has come on record is with respect to the section 50 notice assertedly issued to the accused. Now though all the members of the raiding team PW2, PW3 and PW4 in a parrot like manner in their examination in chief have deposed that a legal notice u/s 50 was issued to the accused by PW4 SI Praveen Kumar, when the said witnesses were asked in their crossexamination as to who had written the said notices, PW2 and PW3 have categorically stated that the said notice was prepared by SI Praveen Kumar in his own handwriting, while this official has completely denied this fact. PW2 is infact specific to state that SI Praveen had written the said notice at 07.00 PM and PW3 is also very specific that ASI Praveen Kumar had prepared the said notice while sitting outside the Qualis vehicle. Completely contrary to the deposition of these two witnesses is the statement of SI Praveen Kumar himself who when confronted in his crossexamination with the said notice has stated that the said notice is not in his handwriting and that the said notice was infact written by ASI Rakesh Kumar. Interestingly this police official ASI Rakesh Kumar has not even been examined by the FIR No. 44/11 Page 19 of 30 State vs. Mujahid Ali SC No. 38/11 prosecution. Though this court agrees with Ld. APPs that since the contraband in question assertedly was recovered not from the body of the accused but from the polythene that he was holding the investigating officials were not bound to follow the provisions of section 50 NDPS Act, what this court wishes to emphasis is that once the investigating officials have taken a stand that a section 50 notice was issued to the accused, their contradictory depositions about who had actually written the said notice raises a huge question on the credibility of their depositions with respect to the proceedings that were conducted at the spot.
(c) The third discrepancy that has come to the fore during trial is with respect to the drawing of the samples, taking the weight of the contraband and the sealing of the same. Though according to PW3 HC Ram Niwas it was at GTB gate footpath that the contraband had been weighed using an electronic weighing machine and that the drawing of the samples and the sealing of the contraband was also done at the said spot, PW2 HC Rajbir in his crossexamination has categorically stated that the weight of the contraband and the procedure of sampling was done while sitting in the Qualis vehicle. He has gone on to depose in his crossexamination that HC Ram Niwas was sitting on the driver's seat of the Qualis vehicle, the IO was sitting on the left of the front seat while he FIR No. 44/11 Page 20 of 30 State vs. Mujahid Ali SC No. 38/11 himself was sitting on the back seat alongwith the accused and the IO had placed the weighing machine on the dash board of the Qualis car (a deposition, which is indeed difficult to believe in view of the shape of the dashboard of a Qualis car and the amount of space that is usually available on the same) and had weighed the contraband and the samples on the dash board itself. The IO himself PW4 SI Praveen Kumar who was examined as a witness after PW2 and PW3, appears to have made an effort to reconcile the contradictory statements given by PW2 and PW3 in as much as he has deposed that though the contraband recovered was tested with the help of Field Testing Kit at the footpath near the GTB gate, the samples were taken inside the vehicle due to low visibility. Further though according to PW3 the mouth of the polythene containing the contraband was already open and the IO had taken a pinch of the powder from the said polythene and that after drawing out of the samples, the transparent polythene was not sealed separately but was kept in the black polythene which the accused had been found carrying, both the IO PW4 and PW2 have stated that the polythene containing the contraband was not open and in fact it was in a sealed condition and that the same was cut open with the help of a scissor and after drawing out of the samples, the polythene was hot sealed using a candle. Further though according to PW2 and PW3 the seizure memo at the spot was prepared FIR No. 44/11 Page 21 of 30 State vs. Mujahid Ali SC No. 38/11 by PW4 SI Praveen Kumar, this IO Praveen Kumar has stated in his crossexamination that in fact it was ASI Rakesh who had prepared the seizure memo and recovery memo. It is also to be taken note of that though PW2 and PW3 have not at all stated that they had signed the pullandas that were prepared at the spot, the main investigating officer SI Praveen Kumar has categorically deposed in his crossexamination that all the pullandas prepared at the spot were countersigned by him as well as by PW2 Rajbir and PW3 Ram Niwas. The said deposition of the IO is not only contrary to that of PW2 and PW3 but is also not in consonance with the pullandas produced during trial for none of the pullandas were found to contain the signatures of PW2 and PW3. This court does not at all agree with Ld. APPs that the aforementioned contradictions in the depositions of the members of the raiding team are minor and that this court should take into account that the said members cannot be expected to have a photographic memory of all the details of the proceedings that took place. In the considered opinion of this court the testing of the contraband, drawing out of sample therefrom, weighing the contraband, preparing pullandas are all very essential steps in the proceedings conducted in a case registered under the provisions of the NDPS Act and the members of the raiding team are expected to remember the details thereof. In a case titled as Kuldeep Singh Vs. State of Punjab reported FIR No. 44/11 Page 22 of 30 State vs. Mujahid Ali SC No. 38/11 in 2011 Cri.L.J. 2672, the Hon'ble Supreme Court has held that the drawing of the samples at the spot and the sealing of the case property at the spot itself are mandatory as per the provisions of the NDPS Act and in the said case after taking note that the prosecution had failed to prove that the samples had been taken at the spot, the Hon'ble Supreme Court had acquitted the accused before it. The judgment of the Hon'ble Delhi High Court in Mohd. Ibrahim's case (supra - a judgment relied upon by the Ld. Defence counsel) also makes it clear that the prosecution is bound to prove beyond reasonable doubt, all the proceedings that the investigating officials assertedly conducted at the spot. In the said case the Hon'ble Delhi High Court has held that the case of the prosecution cannot be taken to have been proved beyond reasonable doubt when the prosecution has not led sufficient credible evidence to prove the preparation of FSL form at the spot. The aforementioned judicial dicta makes clear the importance that is to be attached to the proof of the proceedings that the prosecution asserts to have conducted at the spot. Further in the present case none of the prosecution witnesses, as contended by the Ld. APP have taken a stand in their crossexamination that they do not recall or remember the details of the proceedings but on the contrary infact have gone on to depose their own version about each and every detail of the proceedings. It is also very strange that though the FIR No. 44/11 Page 23 of 30 State vs. Mujahid Ali SC No. 38/11 aforementioned witnesses could in their examination in chief, in a parrot like manner narrate almost in the same words, the facts with respect to the testing of the contraband, drawing samples, sealing, etc and which find mention in the chargesheet, in their crossexamination they conveniently are unable to depose consistently about any of the facts that are not a part of the written documents. For example if the chargesheet mentions that the contraband was tested, samples were drawn and the contraband was weighed and sealed, the said steps remain in the memory of the police officials but if the place of testing the contraband, the manner of drawing samples and taking the weight, etc are asked about in detail in their crossexamination, either their memory fails then or they depose completely contradictory facts to each other. In the considered opinion of this court, in such circumstances an inference can definitely be drawn that the proceedings did not happen in the manner as is being asserted by the investigating agency and that is the reason there is no consistency between the depositions of the members of the raiding team with respect to the exact proceedings that took place at the spot.
(d) There is yet another major lacuna in the case of the prosecution with respect to the proceedings conducted at the spot and the same is with respect to the asserted presence of the second investigating officer PW10 SI Uma Shankar Tiwari at the spot. This witness in his FIR No. 44/11 Page 24 of 30 State vs. Mujahid Ali SC No. 38/11 examination in chief has inter alia deposed that on 26.07.2011 on the directions of Inspector Attar Singh he had reached the spot and had thereafter prepared the site plan, had arrested the accused and had recorded his disclosure statement and after completion of the proceedings at the spot had produced the accused before the SHO of PS Special Cell, Lodhi Colony, Inspector Rajender Singh. Now when in his cross examination he is asked to reveal the registration number of the vehicle that he had used to reach the spot, he is unable to give so and has also failed to explain why the number of the same was not mentioned in the departure entry that he had made in the office of the Special Cell. His mere deposition is to the effect that he had used a private Alto car which belonged to his friend. Then again when he is confronted with the site plan on record which as per his examination in chief was prepared by him he admits that the site plan does not bear his handwriting - as to whose handwriting the site plan bears, the prosecution has been unable to give any answer. Further when asked as to how the site plan bears the FIR number he takes a stand that the same was prepared between 10.3011.00 PM and that by that time HC Rajbir had telephonically informed him about the FIR number. Now not only has HC Rajbir not deposed anywhere that he had telephonically informed this second investigating officer about the FIR number there is no such averment FIR No. 44/11 Page 25 of 30 State vs. Mujahid Ali SC No. 38/11 made in the chargesheet prepared by this second investigating officer. Further the statement made by this officer in his crossexamination that on the way back from the spot to the office, ASI Rakesh had accompanied him in his Alto car and the other members of the raiding team namely HC Ram Niwas, HC Bijender and SI Praveen Kumar alongwith the accused had travelled in the Qualis vehicle completely proves the falsity of the case put forward by the prosecution. This is so because as per the deposition of PW2 HC Rajbir, he had left the spot alongwith the rukka in the Qualis vehicle for the Special Cell, Lodhi Colony and neither he nor any other police official had returned to the spot alongwith the Qualis vehicle. This witness in his examination in chief itself has categorically deposed that he himself had driven the Qualis vehicle from the spot to Special Cell Lodhi Colony, to deliver the rukka and the pullandas to the SHO and DO of the Special Cell, PS Lodhi Colony and thereafter had remained at the said office only till the time the raiding team had come to the said office alongwith the accused. The aforementioned contradictory depositions of PW2 and PW10 completely belies the case of the prosecution and there is absolutely no explanation forthcoming from the Ld. APP for State Sh. Rajiv Mohan or from Sh. A.K. Mishra with respect to the aforementioned discrepancy between the deposition of the second IO and HC Rajbir. FIR No. 44/11 Page 26 of 30
State vs. Mujahid Ali SC No. 38/11 (e) It is also to be taken note of that though as per the deposition of the
second IO PW10 SI Uma Shankar Tiwari, on reaching the PS Special Cell, Lodhi Colony he had produced the accused before the SHO Inspector Rajendra Shehrawat and that the said SHO had also interrogated the accused in his presence and that thereafter had even recorded the statement of the SHO u/s 161 Cr.PC in this regard, neither the SHO R.S. Shehrawat has deposed anything in this regard nor does his statement recorded u/s 161 Cr.PC reveals any such fact. It thus becomes clear that there has been a total non compliance of section 52 of the NDPS Act.
22.To sum up now therefore, the inconsistencies and contradictions, discussed herein above at each step of the asserted proceedings conducted at the spot, if considered conjunctively and cumulatively, are sufficient, in the considered opinion of this court to hold that the prosecution has not been able to prove its version with respect to the apprehension of the accused at the spot and the recovery of the contraband from him, beyond all reasonable doubt. This court does not agree at all with the prosecution that the aforesaid contradictions are not relevant and are not fatal to the case of the prosecution. In a criminal case, in the absence of any independent public witnesses, an accused has no other way to show that a false case has been foisted on him or her FIR No. 44/11 Page 27 of 30 State vs. Mujahid Ali SC No. 38/11 except to show that the police officials examined by the prosecution are not telling the truth when they are making discrepant statements on material aspects of the case. It is also relevant to point out herein that though the accused has examined two witnesses in support of his defence, the State did not choose to crossexamine them despite opportunity granted. Both the witnesses DW1 and DW2 in their examination in chief have inter alia deposed that the accused had come from Kakrola Village, UP to Delhi in search of a job and that on the date of his apprehension he had left a factory in Seemapuri to go and meet his brother in law at Loni, Ghaziabad at about 0405.00 PM. The submission of Ld. APP Sh. Rajiv Mohan is that since as per the case of the prosecution the accused was apprehended at 06.30 PM near GTB Hospital, the fact that the prosecution did not question the testimony of these two defence witnesses does not have any bearing on the case put forward by the prosecution. In the considered opinion of this court though Ld. APP may be correct in contending that neither DW1 nor DW2 have deposed anything with respect to the presence of accused after 04.05.00 PM, it is to be taken note of that though as per the deposition of both DW1 and DW2 the accused had come to Delhi only in search of a job and was to meet his brother in law DW2 in this regard, the case of the prosecution on the other hand is that the accused had brought the heroin FIR No. 44/11 Page 28 of 30 State vs. Mujahid Ali SC No. 38/11 assertedly recovered from him from UP to deliver to someone in Delhi. In such view of the matter, in the considered opinion of this court, it was incumbent upon the prosecution to atleast have crossexamined the said defence witnesses with respect to the purpose for which the accused had come to Delhi. It is also to be taken note of that though as per the secret information assertedly received by the investigating agency, the accused had come to the GTB Hospital to deliver heroin to someone, the disclosure statement assertedly given by the accused mentions no particulars whatsoever of the said person. No doubt the Ld.APPs may be right in contending that the police officials are bound to record only what the accused had disclosed, it is indeed strange that though the investigating officials questioned the accused about the source of the supply of the heroin and the accused disclosed the same, they did not think it fit to interrogate him at all about the person to whom he had come to make the delivery of heroin.
23.It has been held reiterated by the Hon'ble Supreme Court in its various judgments that it must be borne in mind that severer the punishment, greater has to be the care taken to be seen that the case of the prosecution is proved beyond reasonable doubt. In Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135 it has been held by the Apex Court that in cases arising out of the provisions of NDPS Act the FIR No. 44/11 Page 29 of 30 State vs. Mujahid Ali SC No. 38/11 Legislature in its wisdom has provided a very stringent punishment and therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. The Hon'ble Supreme Court has observed that there has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused and that a court must not forget that the standard of proof required to prove the guilt of the accused on the prosecution is always 'beyond all reasonable doubt'. In the present case it is clear that the evidence produced by the prosecution is not sufficiently credible to hold that the version put forward by the investigating agency with respect to the apprehension of the accused and the consequent recovery of contraband from him is true and therefore it is to be held that the prosecution has failed to prove its case against the accused beyond reasonable doubt and that he is entitled to be granted the benefit of doubt. As such this court hereby acquits the accused of the charges framed against him.
Announced in open Court th on this 27 day of September, 2014 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No. 44/11 Page 30 of 30