Delhi District Court
State vs . (1) Ahmed Uruakpa @ Don on 3 December, 2012
SC No. 24/09
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL
JUDGE NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 24/09
ID No. 02403R0287152009
FIR No. 39/09
PS Special Cell
u/s 21/29 of NDPS Act
State Vs. (1) Ahmed Uruakpa @ Don
S/o Uruakpa
R/o Methodist Church
Umuopora, Umuahia, Abbia State,
Nigeria.
Present address: WZ89, Gali no.12,
Shahpura, Tilak Nagar,
Delhi.
(2) Sunny Kumar
S/o Sh. Sarfu Ram
R/o Village Khore Camp,
The Akhnoor, Jammu
Date of Institution : 15.09.2009
Judgment reserved on : 01.12.2012
Date of pronouncement : 03.12.2012
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 29 r.w.s 21 of the Narcotic Drugs and FIR No.39/09 Page 1 of 29 SC No. 24/09 Psychotropic Substances Act (hereinafter referred to as "NDPS Act").
2. Briefly stated the allegations against the accused persons as contained in the chargesheet are as follows:
(a) On 17.07.2009 at about 08.20 PM, SI Dharmender Kumar, PS Special Cell, New Friends Colony received a secret information that one Kashmiri boy, Sunny aged about 22 years whose father is lodged in Tihar Jail in NDPS case will be coming from Jammu on 18.07.2009 at about 07.30 AM to deliver heroin to a Nigerian person namely Don who is residing at H.No. WZ89, Gali No. 12, Shahpura, Tilak Nagar.
(b) The information was brought to the notice of Inspector Videsh Singhal and ACP/SR who gave directions for necessary action to be taken. DD entry no. 15 was also lodged in this regard in the Special Cell and as per the directions of the senior officials, a raiding team comprising of SI Dharmender Kumar, Inspector Videsh Singhal, SI Shri Kishan, ASI Jaibeer, ASI Raj Kumar, HC Pawan Kumar, HC Davinder, Ct. Jagat, Ct. Rajesh and secret informer left at about 03.40 AM for H.No. WZ89, Gali No. 12, Shahpura, Tilak Nagar.
(c) It is asserted that while departing, IO SI Dharmender Kumar carried alongwith him, IO kit, field testing kit and electronic weighing machine and on the way to the spot, he also requested 45 passersby to join the raiding team but none of them agreed to do so.
FIR No.39/09 Page 2 of 29 SC No. 24/09
(d) On reaching the spot at about 05.15 AM, the members of the raiding team positioned themselves near and about the aforementioned premises and surveillance was mounted over the area. At about 07.45 AM, one boy carrying a black colour rexin bag on his right hand shoulder was seen coming from Punjab Chicken Corner side and was identified as Sunny by the secret informer. The said boy then came and stopped near the house in question and knocked the door pursuant to which, one Nigerian person aged about 45 years came out and then both of them started talking to each other.
(e) The boy Sunny then opened his black bag and took out a packed wrapped in polythene and handed it over to the Nigerian person and at this point of time, both of them were overpowered by the members of the raiding team. At this stage, lot of public persons gathered and IO SI Dharmender Kumar told them about the secret information and the police action and requested them to join the proceedings but none agreed and left the spot without disclosing their names and addresses.
(f) Notice u/s 50 NDPS Act was then given to both the accused persons and the Nigerian revealed his name as Ahmed Uruakpa. They were then explained that they have a legal right to get themselves personally searched in the presence of a magistrate or a gazetted officer. Since both of them refused to exercise this legal right, they were searched FIR No.39/09 Page 3 of 29 SC No. 24/09 by the SI Dharmender Kumar himself. Thereafter, on the search of accused Ahmed, the packet handed over to him by Sunny was recovered from his left hand. On opening the said packet, it was found to contain two white colour polythenes which in turn were found to contain cream colour powdery substance. On testing the said powder with the field testing kit, it was revealed that the substance was heroin. The entire substance on being weighed came out to be 665 gms. One sample of 20 gms was separated from the substance and converted into a pullanda with the help of a white cloth and was given serial no. S. The remaining substance was put in the same white colour two polythenes from which it was recovered and converted into a pullanda with the help of white cloth and marked as A. Both the pullandas were then sealed with the seal of DK. As regards accused Sunny, nothing incriminating was recovered from him from his search. A seizure memo was then prepared.
(g) The Rukka was prepared and was sent through HC Pawan Kumar for registration of FIR. Further investigation was handed over to SI Rajender Khatri and it is stated in the chargesheet that during the course of investigation, he arrested both the accused persons and the samples were sent to FSL Rohini for analysis. After receiving the FSL report to the effect that sample was found to contain 36.0% diacetylmorphine, the present chargesheet was filed. FIR No.39/09 Page 4 of 29 SC No. 24/09
3. On the basis of material placed on record, charges were framed against both the accused persons vide order dated 12.10.2009 for the offence punishable u/s 29 r.w.s 21 NDPS Act.
4. In order to prove its case against the accused persons, the prosecution has examined 12 witness in all.
5. PW1 SI Daler Singh has deposed that he was working as Reader to ACP Special Cell SR, NFC on 18/7/2009 and on this date the report u/s 57 of the NDPS Act regarding arrest of accused persons was received in the office of ACP. The said report has been exhibited as ExPW1/A as per the deposition of this witness.
6. PW2 SI Dharmender Kumar, PW8 Insp. Videsh Singal, PW7 Inspector Shri Krishan and PW10 HC Pawan Kumar are members of the raiding team. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, DD No. 15 dated 17/7/2009, in which the secret information was reduced has been exhibited as Ex.PW2/A and the departure entry DD No. 20, in which the departure of the raiding team from the PS is recorded has been exhibited as Ex.PW2/G. The notices issued to the accused persons Ahmed Uruakapa and Sunny u/s 50 of the NDPS Act have been exhibited as Ex.PW2/B and PW2/D the refusals written on behalf of the FIR No.39/09 Page 5 of 29 SC No. 24/09 accused persons on the said notices have been identified at point 'X1 to X2' on the said notices. The seizure memo prepared with respect to the recovery of the heroin from accused Ahmad has been exhibited as Ex.PW2/C and non recovery memo regarding conducting of search of accused Sunny has been exhibited as ExPW2/E. The tehrir prepared at the spot has been exhibited as Ex.PW2/F.
7. PW3 Insp. Rajender Singh Sehrawat has interalia deposed that on 18/7/2009, he was posted as SHO, PS Special Cell and on that day, HC Pawan Kumar produced before him, 2 pullandas, one FSL Form and a carbon copy of Seizure Memo. As per the deposition of this witness, he put the FIR number and his seal 'RSS' on all the two pullandas, the FSL form and the seizure memo and then got the said property deposited in the Malkhana by ASI M. Baxla, MHC(M).
8. PW4 Ct. Jagat Singh has merely deposed that on 12/8/2009 on the instructions of SI Rajender Khatri, he had received one pullanda alongwith the FSL Form from the MHC(M) and had deposited the same in FSL, Rohini.
9. PW5 Sh. Harpreet, public witness has inter alia deposed that in the month September, 2009 the accused Ahmad Urukappa was living as his tenant on the ground floor of house no. WZ89, Gali no. 12, Shah Pura, Tilak Nagar.
10.PW6 ASI Surjeet Singh, Duty Officer has inter alia deposed that on FIR No.39/09 Page 6 of 29 SC No. 24/09 18/7/2009 at about 12:25 p.m., he had received the rukka prepared by PW2 and sent through PW10 and had registered the FIR Ex.PW6/A and an endorsement in this regard was made on rukka ExPW6/B. The DD entries prepared by this witness with respect to the rukka and preparation of FIR have been proved as Ex.PW6/C and PW6/D.
11.PW9 ASI M. Baxla has inter alia deposed that on the instructions of Insp. R.S. Sehrawat, he had deposited the case property in the Malkhana and had made the entry in this regard in Register No. 19. The relevant entry has been exhibited as Ex. PW9/A. This witness has also inter alia deposed that on 12/8/2009, he had sent one sealed pullanda mark S bearing the seals of RSS and DK, alongwith the FSL Form to FSL, Rohini. The original MHC(M) Register was also produced in the Court.
12.PW11 Dr. Madhulika Sharma, Asstt. Director, FSL Rohini has proved the report prepared by her with respect to the analysis conducted by her with respect to the sample sent to FSL. The said report has been exhibited as Ex. PW11/A and as per the said report, the sample Mark 'S' was found to contain 'caffeine, aceylcodeine, monoacetylmorphine and diacetylmorphine and the percentage of diacetylmorphine was found therein to be 36%. The said witness has also proved on record a second report with respect to the samples that were drawn out during trial, in the presence of the court, from the case property produced before it and the said report has been proved as FIR No.39/09 Page 7 of 29 SC No. 24/09 Ex.PW11/B.
13.PW12 SI Rajender Khatri has inter alia deposed about the investigation carried out by him. As per his deposition, the site plan prepared by him at the spot has been exhibited as Ex.PW8/DA. He has also inter alia deposed that he had recorded the statements of various witnesses in this case and had arrested the accused persons and the arrest memos have been exhibited as Ex.PW10/A and PW10/G. This witness has further deposed that the house of the accused Ahmad was searched and one electronic weighing machine, three mobile phones were recovered which were seized vide memo ExPW10/F. This witness has further deposed that he had prepared the report u/s 57 NDPS Act which has been exhibited as ExPW12/A.
14.The entire aforementioned incriminating evidence was put to accused persons and their statements u/s 313 Cr.PC were recorded. In the said statements, both the accused persons have stated that they have been falsely implicated in this case. Accused Sunny has inter alia stated that on 17.07.2009, he had come from Jammu to Delhi to meet his father who was lodged in Tihar Jail and just when he had got down at the bus stop at Old Delhi at about 08.00 PM, six persons in plain clothes apprehended him and took him to PS New Friends Colony. He also stated that then he was beaten mercilessly and was made to sign many blank and written documents. He has also stated that it was at the police station itself that he FIR No.39/09 Page 8 of 29 SC No. 24/09 had seen his coaccused for the first time. He has also stated that he has been falsely implicated in this case at the behest of one Manga of Jammu who had enmity with his family and had got even his father implicated in a NDPS case in 2004. Similarly accused Ahmed has also stated that he was beaten up by police officials and was made to sign many documents. As per the statement given by this accused, on 17.07.2009 at about 0809.00 PM at Tilak Nagar, police officials had come to his tenanted premises and had forcibly picked him up. He has also inter alia stated that even before this case, he was falsely implicated by the police in the year 2002 in a NDPS case on false allegations that he was found in possession of 1 Kg of heroin but even in the said case, he had been acquitted. He has further stated that Inspector Rajender Khatri had told him that if he can pay $ 10,000, he will not be implicated in this case but that since he was not having the said amount of money, he was falsely implicated in the present case. He has also stated before the court that he did not ever have an alias name Don. None of the accused persons have led evidence.
15.After the entire evidence was concluded, Ld. APP for the State Ms. Sushma and Ld. Defence Counsels Sh. Sanjeev Kumar for accused Sunny and Sh. Y.K. Saxena for accused Ahmed have advanced final arguments. Written submissions have also been filed on record on behalf of accused Ahmed.
FIR No.39/09 Page 9 of 29 SC No. 24/09
16.Ld. APP for State has submitted that the depositions of the prosecution witnesses and the documentary evidence on record clearly brings out the guilt of the accused persons. She has submitted that the categorical deposition of all the members of the raiding team show that the accused persons were apprehended outside the house of accused Ahmad, when accused Sunny was handing over the contraband to accused Ahmad and therefore according to her the said depositions are sufficient to hold that the accused persons in conspiracy with each other, were dealing in illicit trafficking of drugs and were found in possession of 665 grams of heroin and are therefore liable to be held guilty for the offences punishable u/s 21 r.w.s. 29 of the NDPS Act.
17.Ld. Defence Counsels have, on the other hand, submitted that the entire case of the prosecution is concocted and false. Ld. Defence counsel Sh. Sanjeev Kumar has vehemently contended that since the prosecution has failed to explain as to how the accused persons would have fixed the date and time of the delivery of the contraband and have deliberately not placed the call detail records of the accused persons before this court proves that the accused persons were never apprehended at the spot in the manner alleged by the prosecution. He has pointed out that both the accused persons in their statements given u/s 313 CrPC have stated that they have been falsely implicated in this case and that they did not know FIR No.39/09 Page 10 of 29 SC No. 24/09 each other before their arrest in this case and that accused Ahmad Uruakpa has also stated that it is at the instance of PW12 Insp. Rajender Khatri that he has been falsely implicated in this case. Ld. Defence Counsels have submitted that accused Ahmad and the father of accused Sunny had both been acquitted in separate cases filed against them by the State under the provisions of NDPS Act only and that Insp. Rajender Khatri being aware of the same wanted to extort money out of the accused persons and that he threatened the accused Ahmad that in case he does not shell out sufficient amount, he would be again implicated in a false case. It has been pointed out that the accused Ahmad has in his statement given before this court u/s 313 CrPC has specifically stated that Rajender Khatri had asked him to pay $ 10,000, which he could not and therefore he was falsely arrested in the present case. According to the Ld. Defence counsels though the accused persons could not bring any independent evidence in their defence, the various contradictions that have emerged during cross examination in the depositions of the members of the raiding team clearly indicate that there was no raid conducted as alleged by the prosecution and that all the documents were prepared at the police station after forcibly picking up the accused persons.
18.Ld. Defence Counsels have also contended that the re examination of the case property in this case has proved beyond doubt that the same has been FIR No.39/09 Page 11 of 29 SC No. 24/09 tampered with. They have pointed out that in the presence case fresh samples from the case property were drawn and were sent for retesting on an application moved on behalf of accused persons and the second FSL report on record shows that the percentage of diacetylmorphine was found to be 8% more than that was found in the first testing. They have also pointed out that PW11 Dr. Madhulika Sharma, in her crossexamination when specifically asked about this variation in the percentage of the diacetylmorphine has categorically deposed that with lapse of time, diacetylmorphine gets converted into monoacetylmorphine over a passage of time, and the contention is therefore that if the opinion of the said expert is taken to be correct then the purity percentage content of diacetylmorphine in the sample sent by this court should have reduced and not increased. As per the contention of the defence the fact that the case property was tampered with is also apparent from various contradictions in the depositions of the investigating officer PW Dharmender Kumar, the SHO R.S. Sehrawat and the MHCM M. Baxla. According to the Ld. Defence Counsel the said contradictions point out that neither were the accused persons were produced before the SHO nor did the SHO put his seal on the pullandas allegedly produced before him. It has also been pointed out by Ld. Defence Counsels that the MHCM in his cross examination has categorically admitted that as per the register no.19, there FIR No.39/09 Page 12 of 29 SC No. 24/09 is no mention that the pullanda deposited with the MHCM were also bearing the seal of RSS (that of the SHO). It is also the contention of the defence that the prosecution has not been able to explain as to why the samples were sent to FSL after 25 days and and have even failed to produce the FSL form that was allegedly sent alongwith the pullandas which itself raises a doubt as to whether the FSL form was even prepared at the spot or not.
19.According to the Ld. Defence Counsels there has been also a total non compliance of section 42, 50 and 55 of the NDPS Act and that therefore the accused persons are entitled to be acquitted. Ld. Counsel Sh. Y.K. Saxena has also contended that the secret information was not reduced into writing separately and the mere DD no.15 in this regard cannot be considered due compliance of section 42(1) of the NDPS Act. He has also pointed out that even otherwise, it has not been proved by the prosecution that DD no.15 was forwarded to the office of ACP and thus there has been a total non compliance of sub section (2) of section 42 of the NDPS Act. Both Ld. Counsels have also submitted that the accused persons were not informed about their legal rights as per the provisions of section 50 of the NDPS Act and no sincere efforts were made by the police officials to join any public witness. In support of their contentions, Ld. Defence Counsels have relied upon the following judgment:
FIR No.39/09 Page 13 of 29 SC No. 24/09
● Subhash Chand Mishra Vs. State 95 (2002) DLT 286.
● Eze Val Okeke @ Val Eze Vs. NCB 116 (2005) DLT 399.
● UOI Vs. Farid 2011 (4) JCC (Narcotics)213.
● Sunil Chaudhary Vs. State 2012(1) JCC (Narcotics) 20. ● State of Rajasthan Vs. Gurmail Singh 2005 I AD (Cr.) S.C. 554. ● Amarjit Singh & Anr. Vs. State (Delhi Administration) 1995(1) C.C. Cases 164 (HC).
20.In rebuttal, Ld. APP has submitted that there has been due compliance of all the provisions of NDPS Act. She has submitted that there is no statutory requirement that the secret information has to be reduced into writing separately other than the entry made in the daily diary. She has also pointed out that as per the deposition of SI Dharmender Kumar, the secret information was brought to the notice of Insp. Videsh Singal, who was his immediate superior and therefore her submission is that the provisions of section 42 NDPS Act have been duly and substantially complied with. She has also submitted that merely because public witnesses did not join the proceedings, an inference cannot be made that the provisions of section 50 were not complied with. According to her even otherwise since the recovery of the contraband was made from a bag being carried by the accused in his hand, the same does not tantamount to recovery from his person and therefore the said recovery does not require mandatory compliance of section 50 of the NDPS Act. She has also FIR No.39/09 Page 14 of 29 SC No. 24/09 submitted that the delay in sending the sample parcel to FSL is not fatal to the case of the prosecution specially when the seal on the parcel sent to the FSL were found intact and were also found tallying with the specimen seal. She has also submitted that the report clearly shows that the FSL form was received by the FSL and therefore the non production of FSL form cannot create a doubt on the case of the prosecution. She has also submitted that the minor contradictions in the deposition of the members of the raiding party cannot lead to the inference that the entire prosecution case is false. As per her contention, even in the absence of public witnesses, the accused persons can be safely convicted on the testimony of the police officials as the testimony that has come on record inspires confidence. In support of her contentions, Ld. APP for State has filed following judgments on record:
● Mohd. Anwar @ Annu Vs. State 2011(1) JCC(Narcotics) 67. ● Bilal Ahmed Vs. State 2011(1) JCC (Narcotics) 27.06.2008. ● Iqbal Moosa Patel Vs. State of Gujarat 2011(1) JCC (Narcotics)
35.
21.I have given careful consideration to the submissions made by all the Ld. Counsels and have perused the entire material on record. Though no defence evidence has been led on behalf of the accused persons, after perusing the entire material on record this court is of the considered FIR No.39/09 Page 15 of 29 SC No. 24/09 opinion, that the accused persons have pointed out material lacunae in the case of the prosecution which does throw a grave doubt on its case. The first and the foremost fact that has emerged during the trial of the present case is that the case property has been tampered with and the same becomes evident from the following material on record:
As per the deposition of PW3 Inspector R.S. Sherawat on 18.07.2009 while he was posted as SHO, Special Cell, Lodhi Colony, New Delhi, HC Pawan Kumar had produced before him two pullandas, one FSL form and the copy of seizure memo and the said pullandas and FSL form were bearing the seal of DK. This witness has interalia deposed that after checking the said pullandas, he had put his seal RSS on both the pullandas and the FSL form and thereafter had put his signatures on the pullandas and the FSL form and the copy of the seizure memo and then handed over all the said articles to the Malkhana Incharge ASI M. Baxla. Now, this Malkhana Incharge ASI M. Baxla has been examined as PW9 and though in his examinationinchief he has confirmed the deposition of Inspector R.S. Sherawat by deposing that on 18.07.2009, Inspector R.S. Sherawat had deposited with him two pullandas bearing the seal of DK and RSS along with the seizure memo and FSL form, in his crossexamination, he has deposed that he had checked the seals affixed on the pullandas and had thereafter only mentioned in Column No. 4 of MHC(M) Register that FIR No.39/09 Page 16 of 29 SC No. 24/09 the pullandas were only bearing the seal of DK. The said deposition of the MHC(M) makes it clear that when the pullandas were deposited by him on 18.07.2009 they were not bearing the seal of RSS. Though, Ld. APP for the State has tried to contend that as a general practice, the contents of the seizure memo are copied in the MHC(M) Register and that is the reason the seal RSS is not mentioned in the MHC(M) Register, the said contention cannot be accepted as the MHCM ASI M. Baxla had specifically deposed before the Court that he had checked all the seals and since the pullandas were bearing only the seal of DK, he had mentioned the same in the MHC(M) Register. He has not at all deposed that he had copied the contents of the seizure memo as it is in the MHC(M) Register. In view of such a categorical deposition of the MHCM, it is clear that provisions of Section 52 & 55 of NDPS Act have been violated in the present case. The said Section inter alia lays down that any article seized during investigation in cases covered u/s 41, 42, 43 and 44 of the NDPS Act shall be forwarded without unnecessary delay to the Officer Incharge of the nearest police station and the said Officer Incharge will take charge of and keep in safe custody the aforementioned articles and that the samples taken from the seized substance will also be sealed with the seal of the Officer Incharge. Now the aforesaid violation is also coupled with the fact that the samples were sent belatedly to FSL and there is no valid FIR No.39/09 Page 17 of 29 SC No. 24/09 explanation for the same and further the prosecution even failed to prove satisfactorily that the seal after use was handed over by PW2, the IO to PW7. The contradictory depositions of PW2 SI Dharmender Kumar and PW7 Sri Krishan with respect to the handing over of seal, do raise a grave suspicion whether at all the seal in question was ever handed over as asserted by the prosecution though as per the statement made by PW2 in his cross examination, he had handed over the seal to PW7 after completing the proceedings at the spot and had taken it back from him only after the property was deposited in the malkhana i.e. on 18/7/2009 itself, according to PW7 he had returned the said seal to SI Dharmender Kumar only after the pullandas in questions were sent to the FSL. Though Ld. APP for the State has contended that mere delay in sending the samples to the FSL Laboratory does not prejudice the accused if the Chemical Examiner has deposed in court that the seals on the pullandas were tallied with the seals on the seizure memo, in the present case, when it has not been proved that the seal of RSS was affixed on the pullandas on 18.07.2009, the mere tallying of the seals with the seizure memo cannot lead to an inference that the case property has not been tampered with. On the contrary, the facts that have emerged after the case property was got retested show that infact what was allegedly recovered from the accused persons was not sent to the FSL. Admittedly, as per record on an FIR No.39/09 Page 18 of 29 SC No. 24/09 application filed on behalf of accused persons, the case property was directed to be retested vide Order dated 03.08.2010 by the Ld. Predecessor after noticing that though in the seizure memo, Ex. PW2/C, the substance recovered from the accused persons was shown to be a cream colour powder, when the case property was produced before the court, it was observed that the same is yellowish brown colour. Now the two FSL reports one that was prepared with respect to the sample sent by the SHO to the FSL and the second, that was prepared with respect to the sample sent by the court to the FSL, have been proved by PW11 Dr. Madhulika Sharma, Asstt. Director, FSL, Rohini as Ex. PW11/A and PW11/A1 respectively. This witness has further deposed that the samples sent to her by the SHO was found to contain Caffeine, Acetylcodeine, Monoacetylmorphine and Diacetylmorphine and that the percentage of Diacetylmorphine was found to be 36% in the said sample. She has further deposed that the Ex. A1 sent to her by the court was found to contain Acetylcodeine, Monoacetylmorphine and Diacetylmorphine and the percentage of Diacetylmorphine was found therein to be 44.2%.
The said deposition makes it clear that though the first sample was found to contain Caffeine, the second sample was not found to contain any caffeine whatsoever and that the percentage of diacetylmorphine was FIR No.39/09 Page 19 of 29 SC No. 24/09 found to have increased in the second sample. In the crossexamination, this witness has categorically stated that over the passage of time, Diacetylmorphine gets converted into Monoacetylmorphine and no other chemical composition. In other words as per the deposition of this expert if the two samples had been drawn out from the same substance, over a passage of time the percentage of diacetylmorphine should have decreased and not increased and both the samples would have been found to contain caffeine. Though Ld. APP for State has tried to contend that the IO may have not taken a representative sample from the contraband recovered and that could explain the different percentages of the diacetylmorphine found in the two samples, she has been at pains to explain as to where did the caffeine found in the first sample disappear. This court is of the considered opinion that in view of the said two reports and the deposition of the Chemical Examiner, it is to be inferred that the samples sent to the FSL for the first time by the investigating agency could not have been drawn out from the contraband /case property that were produced before the court and from which a second sample was sent for retesting and it is evident that the case property in the present case has been tampered with.
22.Now if, in the context of the aforementioned finding, the contradictions in the depositions of the prosecution witnesses with respect to the manner of the apprehension of the accused persons is considered, the same cannot be FIR No.39/09 Page 20 of 29 SC No. 24/09 brushed aside at all. The defence is absolutely right in contending that when the prosecution has failed to even prove that the case property had not been tampered with by its investigating officials, the testimony of such investigating officials cannot be believed even with respect to the manner of the apprehension of the accused persons. It will be relevant to note at this stage the said material contradictions and discrepancies and the same are as follows:
(a) The first contention made in this regard by the defence is that no secret information was received in this case and that is the reason no copy thereof was forwarded to the concerned ACP in compliance of the provisions of the section 42(1) of the NDPS Act. Though the Ld. APP may be right in contending that the recording of the DD entry containing the fact of the receipt of the secret information may be sufficient compliance of the provisions of section 42 (1) of the NDPS Act in view of the judgment of Hon'ble Delhi High Court in Mohd. Anwar's case (supra), it cannot be ignored that the Investigating Agency, has failed to prove that a copy of the said DD was forwarded to the office of the ACP.
In this regard it has been rightly pointed out by the Ld. Defence counsels that though PW2 SI Dharmender Kumar, the writer of the DD ExPW2/A in question, has categorically deposed that a copy of the said DD was sent to the office of the ACP in compliance of section 42 (2) of NDPS Act, FIR No.39/09 Page 21 of 29 SC No. 24/09 PW1 SI Daler Singh, the Reader of ACP Special Cell who was summoned by the prosecution to prove the forwarding of the DD and the report u/s 57 of the NDPS Act, has categorically stated that as per the record maintained in the office of the ACP apart from a report u/s 57 of NDPS Act forwarded by the Insp. Special Cell Videsh Singal, ExPW1/A, no other document was received in the present case. Despite the aforementioned fact Ld. APP for the State has submitted that it was not required in the facts and the circumstances of the present case to forward a copy of the DD ExPW2/A to the office of ACP, in compliance of Section 42 (2) of NDPS Act as the immediate official superior to SI Dharmender Kumar, was Insp. Videsh Singal and that the said DD was brought to his notice. Now even if the said contention of Ld. APP is accepted the fact that cannot be ignored is that though according to both Videsh Singal and Dharmender Kumar a copy of the said DD was forwarded to the ACP office and the concerned ACP was also informed that the secret information, no such forwarded DD or the information relayed has been proved, which does strengthen the contention of the defence that all the documents were manipulated in this case and no secret information as alleged by the investigating agency was received by them.
(b) Secondly it has been pointed out by the defence that the prosecution has also failed to explain as to why when the accused Ahmad FIR No.39/09 Page 22 of 29 SC No. 24/09 knew how to write, was his alleged refusal to the notice u/s 50 NDPS Act written by SI Dharmender Kumar. The accused persons have consistently taken a plea that they were made to sign blank and other documents at PS and that no notice u/s 50 NDPS Act was ever served upon them. Though the Ld. APP for State may be absolutely right in contending that since in the presence case the recovery as per the version of the prosecution was made from the bag that was handed over by the accused Sunny to accused Ahmad and not from the person of the accused persons there was no requirement of issuing a notice u/s 50 NDPS Act to the accused persons, however since the members of the raiding team, in particular the IO has deposed that he did subject the accused persons to a body search after giving them a notice u/s 50 NDPS Act, in the considered opinion of this court, it is open to the accused persons to show that the investigating officials are not speaking the truth and therefore are not credible witness. In the case reported as Union of India Vs. Shah Alam & Anr. 2009 (1) Drug Cases (Narcotics) 390, the facts before Hon'ble Supreme Court were that two accused persons were subjected to body search in course of which packets of heroin were found in the shoulder bag carried by them and in such facts also Hon'ble Supreme Court had held that the provisions of section 50 should have been complied with and if the same had not FIR No.39/09 Page 23 of 29 SC No. 24/09 been done, it would have a bearing on the credibility of the evidence of the official witnesses. Now in the present case though as per the IO he had written the refusal of accused Sunny as this accused had informed him that he is illiterate, there is no such explanation given with regard to accused Ahmad. At this stage it will be very interesting to note that as per the documents placed on record, the accused had refused to sign the seizure memo, ExPW2/C and the disclosure statement given by him ExPW10/6 both these documents record that the accused has refused to sign on the said documents. Now if the said documents are taken to be correct then it is not understandable as to why the accused Ahmad would have agreed to sign the other documents, in particular the notice u/s 50 NDPS Act. The Ld. Defence Counsels do appear to be right in contending that since the signatures of accused Ahmad were taken on various blank papers which were later on filled up according to the convenience of the investigating officials, there perhaps arose a situation where such signed blank papers became deficit. Their contention is also that it is for this reason only that the original notice u/s 50 NDPS Act has not been produced before the court and the alleged refusal of the accused persons is shown to have been given by them on the copy of the said notice.
(c) The next contention of the defence in this regard is that there is absolutely no consistency between the deposition of the members of the FIR No.39/09 Page 24 of 29 SC No. 24/09 raiding team with respect to the preparation of the FSL form. Though PW2 SI Dharmender Kumar, the author of the FSL form has categorically stated in his cross examination that the FSL form was prepared in duplicate and the facsimile seal was affixed on both the FSL forms and similarly PW8 Videsh Singal, the immediate Superior officer of SI Dharmender Kumar who was also the member of the raiding team has deposed in his cross examination that two sets of the FSL forms were filled by SI Dharmender Kumar, PW3 Insp. Rajender Sehrawat, the SHO with whom the pullandas and the FSL form and the copy of the seizure memo was assertedly deposited, has categorically stated both in his examination in chief and in his cross examination that only one FSL form was deposited with him. The MHCM register also shows the deposit of one form and there is no explanation forthcoming from the prosecution that where has the second FSL form disappeared. I do not agree with the Ld. APP for State that the said discrepancy is a minor discrepancy for the preparation of the FSL form is an important step in the proceedings in the investigation of a case under the NDPS Act and has to be proved beyond doubt. The importance of the preparation of the FSL form has been emphasised by the Hon'ble Delhi High Court in the case titled as Radha Kishan vs. State 87 (2000) DLT 106 and very recently in another Crl. FIR No.39/09 Page 25 of 29 SC No. 24/09 appeal no. 847/2010 in a case titled as Modu vs. State. In both the cases it has been held that the evidence of preparation and despatch of the FSL form to the FSL laboratory is critical for ensuring that the sealed samples and the case property were kept intact in the police malkhana and an adverse inference would be drawn against the prosecution in the event of the failure of the prosecution proving beyond doubt the said acts.
(d) The presence of Rajender Khatri at the spot in the manner put forward by the prosecution cannot also be believed in view of the contradictory stands taken by the prosecution witnesses. Though Inspector Videsh Singhal is very categorical in stating that PW12 Rajender Khatri was present at the spot right from 09.15 AM, according to PW12 Rajender Khatri himself he had been instructed by the duty officer at about 10:00 AM on 18/7/2009 that he has to proceed for the investigation of the present case and that since the spot in question was at a distance of about 2530 km. it took him 1 1 1/2 hour to reach the spot. Thus as per the deposition by this witness he reached the spot at 11:0011:30 a.m. No doubt the members of a raiding team are not expected to have a photographic memory of all the minute details of the investigation carried out by them and therefore they could have deposed inconsistently with respect to the time that SI Rajender Khatri reached the spot, the reason the deposition of the prosecution witness SI Rajender FIR No.39/09 Page 26 of 29 SC No. 24/09 Khatri has not inspired much confidence in this court is firstly, as narrated hereinabove because of the tampering of the case property and secondly due to the failure of this witness to explain why he did not bother to verify the call detail records of the accused persons and place them before the court. As per the deposition of this witness he was present at the spot right from 11.30 AM to 03.15 PM (the time shown to be the arrest of accused Sunny) and all that he did during this period of 4 hours is that he allegedly recorded the disclosure statements of the accused persons (as per the search memo of the house of accused Ahmed, the same was conducted only after the accused persons were arrested). There is absolutely no explanation given by him as to why when two mobile phones were allegedly recovered from accused Sunny and three mobile phones were recovered from the house of accused Ahmed and accused Sunny had allegedly disclosed to him that Ahmed used to contact him on phone, did he not bother to check out the call detail records of the accused persons to establish their association.
23.The aforementioned discrepancies may be termed as minor if considered in isolation, however if the same are considered conjunctively and cumulatively alongwith the facts that the case property has been tampered with, the irresistible inference is that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt. The FIR No.39/09 Page 27 of 29 SC No. 24/09 Apex Court in the case of Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. 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. It has also been observed by the Hon'ble Supreme Court in the said case that though the standard of proof required to prove the guilt of the accused on the prosecution is 'beyond all reasonable doubt.' In State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed".
24.In another case titled as State of Rajasthan Vs. Gurnail Singh reported in 2005 (I) AD (Cr.) SC 554 on finding that the link evidence adduced by the prosecution was not at all satisfactory, the Hon'ble Supreme Court acquitted an accused who was found guilty of the Sessions Court for an offence under NDPS Act.
25.In the present case as discussed hereinabove not only as the prosecution failed to prove that the case property was properly sealed and kept in the FIR No.39/09 Page 28 of 29 SC No. 24/09 malkhana, it has been proved on record that the case property in fact has been tampered with. In view of the discussion hereinabove, it is hereby held that the prosecution has not been able to prove beyond reasonable doubt, the charges against the accused persons and therefore they hereby stand acquitted.
Announced in open Court on this 3rd day of December, 2012 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No.39/09 Page 29 of 29