Delhi District Court
State vs . Brahma Nand, on 16 March, 2020
IN THE COURT OF AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 633/2019
In the matter of:
State Vs. Brahma Nand,
S/o Sh. Ram Dutt
R/o H. No. A-7, Tara Nagar,
Kakrola, New Delhi.
FIR No. : 250/19
Police : Dwarka North
Station
Under : 20(b) (ii) (B) NDPS Act
Sections
Date of Filing of Charge sheet : 27.08.2019
Date of Arguments : 13.03.2020
Date of Judgment : 16.03.2020
JUDGMENT:
1. The case of the prosecution is that on 08.07.2019, SI Dharmender along with HC Jagat, HC Jitender and other staff was in patrolling in the area vide departure DD No. 10 in two private cars. It is stated that when the patrolling team reached on the road leading towards Pipal Chowk from Kakrola Sessions Case No. 633/19 State Vs. Brahma Nand Page No.1/54 Village near Metro Pillar No. 855, a secret informer was seen and on this the patrolling team stopped. It is stated that SI Dharmender interacted with the secret informer and in the meantime, accused was seen coming on the road on foot from the side of village Kakrola carrying a pithu bag on his right shoulder.
2. It is the case of prosecution that on seeing the police party, accused stopped at a distance of about 20 meters from them and turned back and on suspicion, SI Dharmender asked accused to stop but he accelerated his speed. HC Jitender and HC Amit apprehended him after a chase upto a distance of 30- 40 paces. Thereafter, SI Dharmender checked his bag and it was found containing Ganja in a black colour polythene.
3. It is further the case of prosecution that SI Dharmender prepared a notice U/s 50 NDPS Act in duplicate and apprised him that his search was to be Sessions Case No. 633/19 State Vs. Brahma Nand Page No.2/54 taken and he has a legal right to be searched in the presence of the Gazetted Officer or any Magistrate. SI Dharmender served notice U/S 50 of the NDPS Act upon him and accused gave his reply on the carbon copy of the notice. HC Jitender brought IO bag and electronic weighing machine from the office of AATS at about 6.30 pm and thereafter IO weighed the recovered Ganja in polythene and it was found 1.5 kg. Thereafter, SI Dharmender took two samples of 100 gram each from the Ganja and the same were converted into pullandas and were given Mark S1 & S2. The remaining Ganja in the polythene was kept in the pithu bag and the bag was kept in a plastic katta and the same was converted into pullandas by SI Dharmender and the same was given Mark A. It is stated that SI Dharmender sealed all the three pullandas with seal of DS and filled FSL Form and affixed his seal of DS on it and seal after use was given to HC Amit. It is averred that SI Dharmender Sessions Case No. 633/19 State Vs. Brahma Nand Page No.3/54 seized all the pullandas and FSL form.
4. It is stated that SI Dharmender prepared rukka and handed over the same to HC Jitender with FSL form, all the pullandas and carbon copy of seizure memo and sent him to PS-Dwarka North with directions to present the rukka before Duty Officer and the remaining articles before the SHO. HC Jitender reached the police station and presented the rukka before Duty Officer HC Mukesh Kumar at about 10.23 pm, who recorded FIR and made his endorsement on the rukka. HC Mukesh Kumar also issued certificate u/s 65 B of the Indian Evidence Act. It is averred that HC Jitender produced all the pullandas, FSL Form and carbon copy of the seizure memo before Inspector Sanjay Kundu, who filled the particulars of the FIR on the same and sealed the pullandas with seal of SK and also affixed his seal of SK on FSL form. Inspector Sanjay Kundu called HC Kuldeep in his office with register No. 19 and Sessions Case No. 633/19 State Vs. Brahma Nand Page No.4/54 deposited all the pullandas, FSL Form and carbon copy of seizure memo with him. HC Kuldeep made entry in register No. 19.
5. After FIR the investigation of the present case was assigned to ASI Manoj Kumar, who reached the spot and prepared site plan. Thereafter, accused was arrested by ASI Manoj Kumar and his personal search was conducted. The accused was interrogated by ASI Manoj Kumar and his disclosure statement was recorded.
6. It is stated that report U/S 57 NDPS Act was prepared by SI Dharmender on 09.07.2019 regarding the recovery of Ganja and sent to ACP Operation through Inspector Ram Kishan. Further report U/S 57 NDPS Act was prepared by ASI Manoj Kumar on 09.07.2019 regarding his arrest and sent to ACP Operation through PW-9 Inspector Ram Kishan.
7. Thereafter, on 09.07.2019 the reports were received in the Office of ACP and Ct. Kavita showed Sessions Case No. 633/19 State Vs. Brahma Nand Page No.5/54 the reports to the ACP and made entry in diary register.
8. On 10.07.2019 during police custody remand, accused was interrogated and he made supplementary disclosure statement which was recorded by ASI Manoj Kumar. It is stated that the exhibits pertaining to this case along with FSL form were sent to FSL Rohini on 10.07.2019 through Ct. Vinod and the same were received in the FSL. It is averred that the exhibits were examined in the FSL by Ms. Kavita Goyal vide FSL report and the same was filed in the court.
9. After completion of investigation, the charge sheet was filed in the court by IO against accused. Charge against the accused:
10. Vide order dated 02.09.2019, the charge for the offence under Section 20(b) (ii) (B) of the NDPS Act was framed against the accused to which he Sessions Case No. 633/19 State Vs. Brahma Nand Page No.6/54 pleaded not guilty and claimed trial and matter was posted for prosecution evidence.
Witnesses examined:
11. The prosecution examined following witnesses in support of its case who are as follows:-
PW1 is SI Krishan. He is a witness who proved the DD No. 16 dated 08.07.2019 on the basis of information sent by SI Dharmender and copy of DD No. 16 was proved as Ex. PW-1/A. PW2 is ASI Dharmender. He deposed that he was working as DD Writter and SI Dharmender made his departure entry with staff at about 4.30 pm on 08.07.2019 and he brought the rojnamcha containing DD N. 10 and attested copy of same was proved as Ex. PW-2/A. PW3 is HC Mukesh Kumar. He is Duty Officer in this case and he proved the copy of FIR as Ex. PW-
3/A, his endorsement Ex. PW-3/B and certificate U/s Sessions Case No. 633/19 State Vs. Brahma Nand Page No.7/54 65 (B) of NDPS Act as Ex. PW-3/C. PW4 is Ms. Kavita Goya, Assistanta Director (Chemistry, FSL Rohini. She deposed that on 10.07.2019, two sealed cloth parcles with FSL form were received in FSL and were marked to her for examination. She proved her report as Ex. PW-4/A. PW5 is Ct. Kavita. He is a witness who was posted as Reader to ACP Operation Dwarka. He deposed that report U/s 57 NDPS Act sent by SI Dharmender and forwarded by Inspector AATS, Dwarka was received in office of ACP and he put up the same before ACP who had seen the report and same was Ex. PW-5/A. He further deposed that another report U/s 57 NDPS Act sent by ASI Manoj Kumar and forwarded by Inspector AATS, Dwarka was received in office of ACP and he put up the same before ACP who had seen the report and same was Ex. PW-5/B. This witness also proved the attested copy of entry No. 762 and 763 of Diary Register as Ex. PW-5/C. Sessions Case No. 633/19 State Vs. Brahma Nand Page No.8/54 PW6 is Ct. Vinod. He is a witness who had taken two sealed pullandas Mark S1 and S2 and FSL form to FSL Rohini vide RC No. 134/21/19 after receiving the same from MHC(M) and deposited the same in FSL and receipt was handed over to MHC(M). PW7 is HC Jagat Singh. He is a witness who joined the investigation of present case with IO ASI Manoj Kumar and during investigation accused was interrogated by IO and his supplementary disclosure statement was recorded which was proved as Ex. PW- 7/A. PW8 is Inspetor Sanjay Kundu. He deposed that on 08.07.2019, HC Jitender produced three sealed pullandas, FSL Form and copy of seizure memo before him and he sealed all the pullandas and affixed his seal on FSL form and filled the particulars of FIR on pullandas, FSL Form and seizure memo and same was deposited with MHC(M) against entry. This witness made DD No. 101A regarding same and Sessions Case No. 633/19 State Vs. Brahma Nand Page No.9/54 attested copy of same is Ex. PW-8/A. PW9 is Inspector Ram Krishan. He deposed that on 08.07.2019, SI Dharmender informed him about the recovery of ganja from possession of accused and he passed this information to ACP Sh. Rajender Singh. He further deposed that report U/s 57 of NDPS Act was prepared by SI Dharmender and another report by ASI Manoj and he forwarded both reports to ACP. PW10 is HC Jitender. He is one of the member of team who were on patrolling duty including SI Dharmender, ASI Randhir, HC Vijay, Ct. Amit, Ct. Jagat and Ct. Manish. He further deposed regarding apprehending the accused on suspicion, recovery of 1.5 kg ganja from shoulder bag of accused. He proved one seizure memo as Ex. PW-10/A, his arrest memo as Ex. PW-10/B, personal search memo as Ex. PW-10/C and his disclosure statement as Ex. PW- 10/D. PW11 is HC Amit. He is also one of the witness who Sessions Case No. 633/19 State Vs. Brahma Nand Page No.10/54 was on patrolling duty with other police officers and deposed regarding arrest of accused on suspicion and recovery of contraband. The carbon copy of notice U/s 50 NDPS Act was proved as Ex. PW-11/A, reply of accused on same as Ex. PW-11/B. PW12 is SI Dharmendra. He is IO of the case and has deposed regarding all the investigation done by him in the present case. He proved rukka as Ex. PW- 12/A and site plan prepared by ASI Manoj as Ex. PW- 12/B. PW13 is HC Kuldeep. He was posted as MHC(M). He proved the copy of entry in register No. 19 at Sl. No. 2534 as Ex. PW-13/A, copy of RC No. 134/21/19 as Ex. PW-13/B, copy of receipt of FSL as Ex. PW- 13/C. PW14 is ASI Manoj Kumar. He deposed that after FIR, the investigation of this case was assigned to him on the instructions of Inspector Ram Kishan Yadav of AATS. He deposed further regarding Sessions Case No. 633/19 State Vs. Brahma Nand Page No.11/54 investigation done by him after assignment. He proved the seizure memo as Ex. PW-14/A.
12. Thereafter, Prosecution Evidence was closed vide order dated 13.03.2020 and statement of accused U/s 313 Cr. P. C. was recorded whereby all the incriminating evidence was put to him in which he denied all the allegations and pleaded his innocence.
13. I have considered the submissions of Ld. APP for the state and Ld. Defence counsel and have gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence. ARGUMENTS OF PROSECUTION:
14. It is argued by Ld. APP for state that this is a case of chance recovery. He further stated that police officials were on patrolling duty and when the patrolling team reached on the road leading towards Sessions Case No. 633/19 State Vs. Brahma Nand Page No.12/54 Pipal Chowk from Kakrola Village near Metro Pillar No. 855, a secret informer was seen and on this the patrolling team stopped. Further SI Dharmender interacted with the secret informer and in the meantime, accused was seen coming on the road on foot from the side of village Kakrola carrying a pithu bag on his right shoulder. It is argued that on seeing the police party, accused stopped at a distance of about 20 meters from them and turned back and on suspicion, SI Dharmender asked accused to stop but he accelerated his speed. HC Jitender and HC Amit apprehended him after a chase upto a distance of 30- 40 paces. Thereafter, SI Dharmender checked his bag and it was found containing Ganja in a black colour polythene. It is stated by Ld. APP for State that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of the accused beyond reasonable doubt.
Sessions Case No. 633/19 State Vs. Brahma Nand Page No.13/54 ARGUMENTS OF DEFENCE:
15. On the other hand, Ld. Counsel for accused vehemently argued that the accused is innocent. It is argued by him that the testimonies of prosecution witnesses are full of omissions and improvements and in view of improvements made by PWs, their evidence has lost credibility and cannot be relied upon to give finding of guilt of accused. It is also argued that the present accused has been falsely implicated. It is also argued that there are other legal and technical defects in the proceedings conducted by police officer.
16. In rebuttal, the Ld. APP for the state submitted that the contradictions in the testimony of material witnesses are minor and natural and does not affect the case of the prosecution. He further argued that nothing contrary has come in the cross-examination of PWs to dis-credit them. It is further argued that Sessions Case No. 633/19 State Vs. Brahma Nand Page No.14/54 there is sufficient material and evidence on record to prove the guilt of accused.
JUDGMENT RELIED UPON ON BEHALF OF STATE.
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors.
2002 (2) CC Cases (SC) 58;
2) Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783;
3) Delias Christopher Vs. Customs 2004 (3) JCC 147;
4) State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103;
5) Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77;
6) State of Haryana Vs. Mai Ram, (2008) 8 SCC 292;
7) Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652;
8) Tahir Vs. State 1996 (3) SCC 338.
JUDGMENT RELIED UPON ON BEHALF OF ACCUSED. Sessions Case No. 633/19 State Vs. Brahma Nand Page No.15/54
1) D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416;
2) Mohd. Javed Vs. State 84 (2000) DLT 244, decided by Hon'ble High Court of Delhi;
3) Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1;
4) Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC) decided by High Court of Punjab and Haryana at Chandigarh;
5) State of Punjab Vs Baldev Singh (1999)3SCC 977;
6) Mohd. Masoom Vs. State of NCT of Delhi 219 (2015) DLT, 271;
7) Masoom & Ors. Vs. State of NCT of Delhi, 2015 III AD (CRI) (DHC) 349 passed by Hon'ble High Court of Delhi;
8) Sumit Rai @ Subodh Rai Vs. State passed by Hon'ble Delhi High Court;
9) Harbhajan Singh & Anr. Vs. State of H. P. passed by Himachal Pradesh High Court in Criminal Appeal No. 526/05 decided on 17.06.2013.
Sessions Case No. 633/19 State Vs. Brahma Nand Page No.16/54
17. I have considered the submissions of Ld. Defence counsel and Ld. APP for the state and have gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as by Ld. Defence counsel.
FINDINGS:
18. Records of present case reveals that the accused stands charged for the conscious possession of 1.5 kg ganja kept in a bag which is an intermediate quantity. The stringent provisions are provided under the act and scheme of NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguard ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, balance must be struck between the need of the law and the enforcement of Sessions Case No. 633/19 State Vs. Brahma Nand Page No.17/54 such law on the one hand, the protection of citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband.
19. In the present case, the accused was apprehended from spot during petrolling and on checking, he was found in possession of intermediate quantity of above contraband. Hence, it has to be proved that he was in conscious possession of above contrabands and the provisions of Act has been complied with in letter and spirit.
20. The Ld. Counsel for accused has argued that the notice U/s 50 NDPS Act was defective as the accused was not explained about his legal right to be searched before a Gazetted officer or Magistrate. But Ld. APP for state has argued that notices U/s 50 of NDPS Act was served upon the accused whereby he Sessions Case No. 633/19 State Vs. Brahma Nand Page No.18/54 was apprised about his legal rights. During the arguments, Ld. Counsels for the accused referred the case of D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416 to contend that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence.
21. The Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
22. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a Sessions Case No. 633/19 State Vs. Brahma Nand Page No.19/54 duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by State of Punjab Vs. Baldev Singh (1999) 3 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had conveyed the Sessions Case No. 633/19 State Vs. Brahma Nand Page No.20/54 information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazette Officer or a Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was Sessions Case No. 633/19 State Vs. Brahma Nand Page No.21/54 substantial compliance with the requirement of Section 50 of NDPS Act. The Court did not agree with the contention that there was non- compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made.
23. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by Sessions Case No. 633/19 State Vs. Brahma Nand Page No.22/54 way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction. The counsel for accused has relied upon judgment titled as Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1 wherein HMJ Mukta Gupta, Hon'ble High Court of Delhi has held as under:-
"Substantial Compliance of - Notice in the states that since there is an information as to the possession of heroin and he Sessions Case No. 633/19 State Vs. Brahma Nand Page No.23/54 (accused) has been apprehended and is required to be searched, if he so desires he can first take the search of the police party - On refusal, the appellant was asked that if he so desire then his search can be taken before a Magistrate or a Gazetted Officer - This was also declined by the appellant - A perusal of the notice under Section 50 of NDPS Act and the testimony of PW11 the Investigating Officer shows that the appellant was informed only about the option and not about his right of being searched before a Magistrate or a Gazetted Officer- The appellant is thus entitled to be acquitted."
24. The arguments have to be considered in all the cases on the basis of facts. I have perused the notice U/s 50 NDPS Act. The word mentioned is Sessions Case No. 633/19 State Vs. Brahma Nand Page No.24/54 "Legal Right" and whole notice is in Hindi. But one important aspect which has emerged on reading of notice Ex. 11/A is that prior to serving of notice U/s 50 of NDPS Act, the search of accused was taken. So purpose of serving the notice has become infructuous. In reply to said notice also, the accused has mentioned that he does not want to call Gazetted Officer or Magistrate as recovery of ganja has already been effected from him. Rather, police team had also not offered their search before taking search of accused. So this shows that police officials had never any intention to comply with the mandatory provisions of notice U/s 50 of NDPS Act. Moreover, Gazetted officer like ACP and DCP of the department were easily available but no efforts or request was made to them to join the search proceedings in order to comply with the provisions of section 50 of NDPS Act. It seems that a false and fabricated notice was prepared in a mechanical manner.
Sessions Case No. 633/19 State Vs. Brahma Nand Page No.25/54
25. Though in the judgment titled as S. K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal having Criminal Appeal No. 459 of 2017 dated 05.09.2018, the Hon'ble Mr. Justice J. Dhananjay Y Chandrachud of Hon'ble Supreme Court has upheld the conviction in a case where recovery was made not in person of accused but from the jute bag and section 50 of NDPS Act was found to be not applicable and certain interpretation was carried out but in another judgment titled as Arif Khan @ Agha Khan Vs. State of Uttarakhand, having CA No. 273/07 decided by Hon'ble Supreme Court of India discussed about the recovery of contraband from bag and applicability of Section 50 of NDPS Act and relief was given to accused. Judgment titled as Dharambir Vs. State having CRL. A. 658/17, decided by Hon'ble High Court of Delhi talks about recovery of contraband from car. In another judgment dated 29.07.2019 passed by Sessions Case No. 633/19 State Vs. Brahma Nand Page No.26/54 Hon'ble Delhi High Court in case titled as Sumit Rai @ Subodh Rai Vs. State, the Hon'ble High Court has discussed about the applicability and compliance of the notice U/s 50 of NDPS Act despite the fact that recovery of contraband i.e. 100 KG ganja from four bags was effected in said case and in the present case, the recovery was effected from bag of the accused so this court is not dwelling upon this aspect as this court is bound by the pronouncements of Hon'ble High Court and Hon'ble Supreme Court but there are other lacunas also in this case which are being discussed herein below.
26. The counsel for accused has argued that there are other lacunas also and one of them is that IO of the case has not complied with the provisions U/s 100
(iv) of the NDPS Act and have not joined any public witness appropriately and properly in the present case. The Hon'ble High Court of Delhi in case titled Mohd. Javed Vs. State 84 (2000) DLT 244 Sessions Case No. 633/19 State Vs. Brahma Nand Page No.27/54 has held that "No serious efforts made by SI to associate any independent witness with raiding party - Road leading to Yamuna Bridge is busy road - alleged recovery must have been witnessed by many passer by-police could not find any independent witnesses to attest search and seizure". Therefore, on this count the prosecution has not been able to satisfy the court that investigation was fair and impartial.
27. The counsel for accused has argued that testimony and deposition of prosecution witnesses is full of omissions and improvements and in view of improvements made by PWs, their evidence has lost the credibility and cannot be relied upon to give finding of guilt against the accused. The argument has force because if there are certain other lacunas in the case, this fact is an important fact.
28. The counsel for accused has further argued that accused has been falsely implicated and has no Sessions Case No. 633/19 State Vs. Brahma Nand Page No.28/54 connection with crime. This is two limbs argument. The first argument is of Ld. APP that if witnesses are police witness then that does not mean that their evidence is to be discarded. Ld. APP has relied upon certain law points for this. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons- falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
29. Further reliance has been placed on case titled as Nathu Singh Vs. State of Madhya Pradesh Sessions Case No. 633/19 State Vs. Brahma Nand Page No.29/54 AIR 1973 SC 2783 by Ld. APP and he has argued that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the accused persons. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC
147. The Ld. APP has further argued that this is also fortified by the judgment of Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under:-
"6....... No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, Sessions Case No. 633/19 State Vs. Brahma Nand Page No.30/54 only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
30. It is a trite that non-joining of public witnesses itself cannot become a ground for acquittal, if the case of prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, Sessions Case No. 633/19 State Vs. Brahma Nand Page No.31/54 whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution cannot be held to be vulnerable for non-examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution can not be disbelieved.
31. It is settled law as laid down in Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution". The preposition is not disputed but balance has to be maintained if some doubt is created regarding the involvement of accused as happened in present case qua some lacunas then the situation warrants that public witnesses should have been involved in the present matter. Though it is not Sessions Case No. 633/19 State Vs. Brahma Nand Page No.32/54 always true that statement of prosecution witness has to be thrown away but when shadow of doubt is created from circumstances then joining of independent witness is relevant. Though in the present case, it has been tried to be brought on record from the testimony of prosecution witnesses that efforts were made to join the public witnesses but none of them joined. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court proceedings. The non joining of public witnesses is not fatal to the case as otherwise the case is proved by way of consistent and cogent evidence. The facts of the present case warrant the involvement of public witnesses. Reliance can be placed upon Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC) decided by High Court of Punjab and Haryana at Chandigarh. This is case where requirement of Sessions Case No. 633/19 State Vs. Brahma Nand Page No.33/54 public witness was necessary. The spot is located at Pipal Chowk, Kakrola Village near Metro Pillar No. 855 and there were movements of passer-bye, cyclists, bikes, rickshaw pullers and pedestrians but to no effect. Rather, it has come in the cross-examination of witnesses who were on patrolling duty that 'the spot was crowded and was not secluded'. However, from their deposition, it is observed that no efforts were made by police officials to join independent witness during search proceedings.
32. So in these circumstances, when public witnesses could have been easily available, search has been made on road, police has remained for considerable time at spot, recovery has been allegedly effected at 4.30 pm then nothing has prevented the IO to take the services of independent witnesses. If the circumstances would have been different and recovery has been effected in emergency or in mid night then defence of non- Sessions Case No. 633/19 State Vs. Brahma Nand Page No.34/54 joining of public witness would have been available to prosecution but in the present case due to reasons discussed herein, the necessity of joining of public witnesses is paramount.
33. Reliance is also placed upon Mohd. Masoom Vs. State of NCT of Delhi 219 (2015) DLT, 271 wherein it was held that "21. It has almost become a routine practice for the police to state that passerby were asked to join and they declined and went away without disclosing their names. The court should be wary of readily accepting such explanations. In a case where a raid takes places in broad day light in a busy area, a more convincing explanation has to be offered why despite remaining at the spot for about eight hours, the police did not find single public witness to join the proceedings. Shoddy investigation....". This judgment is fully applicable to the facts of Sessions Case No. 633/19 State Vs. Brahma Nand Page No.35/54 present case.
34. Though it is correct that such a quantity of contraband cannot be implanted as observed in the judgment of Balwant Rai mentioned below but simultaneously, if on other grounds, the accused is entitled to the benefit then ground itself cannot be sufficient to convict him. The facts of the present case as discussed warrant involvement of public witnesses.
35. The Ld. APP has argued that the present case is a case of recovery of intermediate quantity of ganja. It is not possible to plant such a quantity upon the accused. Moreover, there is no reason to falsely implicate the accused. In the case of State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, it was held that:
"The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. Sessions Case No. 633/19 State Vs. Brahma Nand Page No.36/54 State of H. P. 2005 (1) Crimes 358 (H. P.) it was observed: it is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person ......... police had no axe to grind in implicating the accused." The argument is not tenable as that itself is not sole ground to convict the accused.
36. Now, this court will deal with the testimonies of prosecution witnesses recorded during trial.
37. The whole case of prosecution hinges on the testimonies of police witnesses who were on patrolling duty.
38. PW-7 HC Jagat Singh is one of the witness who was on patrolling duty. In his cross-examination, he deposed that they all left in plain cloths in private cars but he could not tell the number of cars and who accompanied him in the car. He further deposed that Sessions Case No. 633/19 State Vs. Brahma Nand Page No.37/54 all the members did not alight from the car and only few members had alighted and he remained sitting in car. He also deposed that they were given information by secret informer that accused will come on the spot with alleged ganja and secret informer pointed out to the raiding team that accused was the alleged ganja peddler. He also deposed that he himself had not seen any recovery. As per the case of prosecution, there was no prior information regarding accused and it was a case of chance recovery but PW-7 HC Jagat has deposed contrary to the case of prosecution by stating that they were given information by secret informer that accused will come on the spot with alleged ganja.
39. PW-10 HC Jitender is another witness who was on patrolling duty on the date of incident. PW-10 in his examination in chief recorded on 13.02.2020 has deposed that "SI Dharmender took out the black colour polythene from the bag and it was found Sessions Case No. 633/19 State Vs. Brahma Nand Page No.38/54 containing wet, seeds and grass like substance. From the smell and physical qualities the recovered substance appeared to be ganja". From his above deposition, it is clear that field testing kit was not used at the spot by patrolling team and just on the basis of smell and physical qualities, the recovered substance appeared to be ganja to police officers on duty. This technical defect is very fatal to the case of prosecution because perusal of record and deposition of witnesses shows that after recovery of alleged contraband from the bag of accused, no field testing kit was called. It becomes apparent that directly they declared the contraband as ganja.
40. It is further important to note here that contraband was in wet, seed and grass like substance. If contraband was in wet state then there must be difference of total weight, if contraband is weight in dry state. Further it has to be kept in mind Sessions Case No. 633/19 State Vs. Brahma Nand Page No.39/54 that as per deposition of witnesses, it was containing grass and seeds thus in these circumstances, there is another important point which requires to be taken into account. The relevant portion of section 20 of the NDPS Act is as follows "Whoever, in contravention of any provision of this act or any rule or order made or condition of licence granted thereunder:-
a) cultivates any cannabis plant; or
b) produces, manufactures, possess, sells, purchases, transports, imports inter-state, exports inter-state or uses cannabis, shall be punishable when quantity involved is lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extent to one lakh rupees.
Ganja has been defined U/s 2 (b) of the Act which is reproduced as under:-
2 (iii) "Cannabis (hemp)" means - Sessions Case No. 633/19 State Vs. Brahma Nand Page No.40/54
(a) Charas, that is, the separated resin, in whatever form whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
b) Ganja, that is, the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated.
c) Any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;
d) "Cannabis plant" means any plant of the genus cannabis."
41. From the combined reading of section 20 and 2
(iii) (b) of the Act, it is clear that Ganja is flowering of fruiting tops of the cannabis plant (excluding seeds and leaves when not accompanied by the tops). However, the prosecution has not been able to show Sessions Case No. 633/19 State Vs. Brahma Nand Page No.41/54 as to what was the actual quantity of flowering of fruiting tops of cannabis plant in the recovered pithu bag. As per the case of prosecution, the total weight consists of so many parts of ganja which may not be contraband in actual as the Court has to see particular part of plant from which ganja can be derived. Reliance is placed upon judgment titled as Harbhajan Singh & Anr. Vs. State of H. P. passed by Himachal Pradesh High Court in Criminal Appeal No. 526/05 decided on 17.06.2013 wherein in para No. 8 and 9, the Hon'ble Court has held as under:-
"8. Further the Apex Court in Ajab Singh Vs. State of Punjab, 2000 Cri. LJ (SC) 2270 - 2000 (40) ACC 909 (SC), held that even though the term "Poppy Husk" has not been defined in the act, but the terms "Poppy straw" has been defined. The term "Poppy Straw" includes all parts (except the seeds) of "Opium Poppy". Sessions Case No. 633/19 State Vs. Brahma Nand Page No.42/54
"Opium Poppy" means the plant of the species papaver. Thus, except for the seed all other parts of the plant of the species papaver would fall within the term "Papaver Straw".
9. In the present case, it is clear from the report of analysis referred to above that three tests were conducted by the Chemical Examiner to ascertain whether the stuff contained meconic acid and morphine and also by physical appearances, do not indicate that the stuff examined consisted of the parts of either the plant of the species of papaver somniferum-L or a plant of any other species of papaver from which opium or any other phenanthrene alka-loid can be extracted and which the Central Government may have notified to be the opium poppy for the purposes of the Act. Therefore, the report aforesaid cannot be used as a sufficient Sessions Case No. 633/19 State Vs. Brahma Nand Page No.43/54 evidence to hold that the stuff recovered from the respondents falls within the definition of "Poppy Straw". As such, the accused persons were accordingly acquitted."
42. PW-10 HC Jitender in his cross-examination admitted that "Spot was crowded and was not secluded" still not public witness was joined at the spot. He further admitted that "Seeds were taken out from the top and all the contents were not taken out." So in these circumstances it cannot said that whole contents of bag was ganja. He admitted that he did not make any entry of taking away the IO Bag and electronic weighing machine or that he did not make any arrival /departure entry while leaving the office after taking the said machine and IO Bag. He further admitted that "Metro station was at a distance of about 300-400 meters from the spot. I am aware that the officials of CISF remains at Metro Station round the clock. No Sessions Case No. 633/19 State Vs. Brahma Nand Page No.44/54 official was called from the metro station for joining the proceedings". From his above deposition, it is further clear that admittedly metro station was at the distance of less than a half kilometer and officials of CISF were also available round the clock still no officials from CISF or Delhi Metro was called by patrolling team to join them in recovery proceedings. Further no photography or videography of the proceedings was done. This witness further could not tell as to how many zips were there in the bag. He admitted that ganja was recovered from the zip of back side and only one zip was checked. So this witness has also demolished the case of prosecution.
43. PW-11 HC Amit is also another witness who was on patrolling duty. In his examination in chief, he deposed that "We all alighted from the cars and SI Dharmender interacted with the secret informer". His above deposition is in contrast to Sessions Case No. 633/19 State Vs. Brahma Nand Page No.45/54 testimony of PW-7 HC Jagat who has stated that "All the members of raiding team did not alight from the car and only few members had alighted."
44. PW-11 HC Amit also deposed that "In the meantime, one person was seen from coming on the road on foot from the side of village Kakrola carrying a pithu bag on his waist and when he was at the distance of about 20 meters from us, he stopped and thereafter, turned back on seeing us. On suspicion, we went towards him but he did not stop and accelerated his speed. On the instructions of SI Dharmender, I and HC Jitender chased the said person and apprehended him after running behind him upto a distance of 30-40 meters". From his deposition, it is not made out as to why accused stopped and turned behind on seeing police who were on patrolling because as per case of Sessions Case No. 633/19 State Vs. Brahma Nand Page No.46/54 prosecution and deposition of witnesses, they were on private cars and rather were on plain cloths and it is not possible that for anyone to identify police without dress and govt. gypsy/PCR van/patrolling vehicle. It casts doubt on the version and story put forward by police.
45. In cross-examination, PW-11 HC Amit has also deposed that "All the members of raiding party alighted from the car and nobody was inside the car" which is again in contrast to the deposition of PW-7 HC Jagat. He could not tell the total number of zip /pocket in the bag and as to from which pocket/zip, the alleged ganja was recovered. This witness also deposed that all the zips were checked which is again in contrast to deposition of PW-10. PW-11 HC Amit also admitted that contents of the lower side were not taken out and only the top contents were taken out for sample".
Sessions Case No. 633/19 State Vs. Brahma Nand Page No.47/54
46. PW-12 is SI Dharmender. In his cross-
examination, he deposed that "The secret informer did not point out towards the accused." On the other hand, PW-7 has deposed regarding pointing out of secret informer towards the accused, so both the witnesses are giving different version though both were present at same time together and both were members of patrolling team. PW-12 further deposed that the alleged ganja was recovered from the zip in the middle where the space as more. All the zips were checked by him. This deposition is again in contrast to deposition of other witnesses specially PW-10 who deposed that ganja was recovered from back side zip.
47. Last witness produced by accused is PW-14 ASI Manoj Kumar. In his cross-examination, he deposed that "Spot is located on the right side of the road as shown by him in the site map made at the instance of SI Dharmender" but other Sessions Case No. 633/19 State Vs. Brahma Nand Page No.48/54 witnesses have deposed that they had stopped on the left side of the road. He further stated that there was no recovery made at the instance of accused after his arrest.
48. From above discussion of testimonies of prosecution witnesses, it is clear that this witness has also created dent to the case of prosecution and it is clear that no field testing kit was used to ascertain the name of recovered contraband and simplicitor, they came at conclusion that recovered contraband is ganja on the basis of its smell.
49. FSL report has been proved as Ex. PW-4/A by PW-4 Ms. Kavita Goyal, Asst. Director, FSL Rohini. Though FSL report has confirmed the presence of narcotics as recovered in the present case still, this evidence itself is not sufficient unless corroboration is proved because report of Chemical Examiner only suggests that it was contraband material but still prosecution was bound to prove that it was recovered Sessions Case No. 633/19 State Vs. Brahma Nand Page No.49/54 from the accused.
50. From above discussion, it is clear that public persons were available at and around the spot in abundance but none was joined and it is not the case of the prosecution that efforts were made by the IO to join anyone of them. The IO must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so is to be viewed with suspicion.
51. If accused was apprehended with contraband then same was to be delivered to somebody and he must have called the person before leaving his house to whom it was to be sold or supplied but IO has not tried to connect the same. Further call details of accused should have been checked and verified but same has not been done in this case.
52. Attention of court is drawn to the judgment titled as Masoom & Ors. Vs. State of NCT of Delhi, 2015 III AD (CRI) (DHC) 349 passed by Sessions Case No. 633/19 State Vs. Brahma Nand Page No.50/54 Hon'ble High Court of Delhi wherein it was held that "23. The prosecution has not given any explanation as to why cellular evidence was not brought on record. It has come on record that A-2 had conversation on mobile in his possession at IGI Airport. Personal search memo shows recovery of two Nokia mobiles, with Vodafone and Idea Chips. Similarly, on personal search of A-1, one mobile make Fashion with two SIMs was recovered. The Investigation Officer did not attempt to collect call details records pertaining to these mobile phones to ascertain as to with whom, at what time and place the appellants were in regular and constant touch. Call Details Records were relevant to ascertain appellant's location at the relevant time and their nexus with themselves and others". It is clear from the testimony of witnesses that no sincere efforts have been made to Sessions Case No. 633/19 State Vs. Brahma Nand Page No.51/54 apprehend the source of contraband and recipient of same despite taking police custody remand of accused in the present matter.
53. From perusal of testimonies of prosecution witnesses, it is observed that there are several contradictions in the version and deposition of prosecution witnesses. In a case of NDPS Act which invites stringent punishment, the above discussed defects cannot be ignored. The accused cannot be convicted on such tentative evidence and in the light of these discrepancies that non-joining of witnesses assumes significances.
54. From above mentioned facts and circumstances and other discussions as detailed above, it becomes very clear that the present case is not such a case where the complexity of accused has been proved beyond reasonable doubt. Non-joining of independent witnesses, non-use of field testing kit at spot, contradictions in the deposition of material witnesses Sessions Case No. 633/19 State Vs. Brahma Nand Page No.52/54 has become fatal to the case of prosecution. From the testimony of witnesses and above discussions, it is crystal clear that there is shadow of doubt upon accused regarding commission of offences U/s 20 (b)
(ii)(B) of NDPS Act.
55. In the light of above said discussions and observation, there is no consistent and reliability in the testimony of prosecution witnesses and the defence taken by the accused is found to be probable. There are several lacunas in the proceedings conducted at the spot as discussed above. It is not made out that accused was found in possession of contrabands at the spot beyond reasonable doubt.
56. Hence, keeping in view the overall facts and circumstances of the present and in view of the above observations and discussion of testimonies of prosecution witnesses appeared in witness box, the accused Brahma Nand is acquitted for commission of Sessions Case No. 633/19 State Vs. Brahma Nand Page No.53/54 offence under Section U/s 20(b) (ii) (B) of the NDPS Act.
57. Bail Bonds U/s 437 A Cr. P. C. in sum of Rs.
25,000/- has been furnished on behalf of accused. Case property is confiscated to the State and in case no appeal is filed within prescribed time, the same may be disposed of as per rules. File be consigned to record room.
Pronounced in the open court. (AJAY GOEL) Dated: 16.03.2020 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
Sessions Case No. 633/19 State Vs. Brahma Nand Page No.54/54