Delhi District Court
State vs Geeta on 18 December, 2023
IN THE COURT OF SUDHIR KUMAR SIROHI:ASJ
(SPECIAL JUDGE) (NDPS ACT): NEW DELHI DISTRICT:
PATIALA HOUSE COURTS:NEW DELHI
State Vs : GEETA
FIR Number : 55/2018
Police Station : Inderpuri
CNR No. : DLSE01-004282-2018
SC No. : 115/2018
Date of Institution : 10.05.2018
Date of Judgment reserved on : 08.12.2023
Date of Judgment : 18.12.2023
Brief details of the case
A) Session Case No. : 115/18
B) Offence complained of : 21/61/85 NDPS Act
or proved
C) Date of Offence : 12.03.2018
D) Name of the complainant: ASI Jai Singh
E) Name of the accused : GEETA
w/o Sh. Hans Raj
r/o D-514, JJ Colny,
Inderpuri, New Delhi.
F) Plea of the accused : Pleaded not guilty
G) Final order : Acquittal
H) Date of Judgment : 18.12.2023
JUDGMENT
Brief facts mentioned in the charge-sheet
1. Brief facts of the case are that on 12.03.2018 at about 9pm, secret information was received by ASI Jai Singh received secret information at C Block, police booth, J J Colony, Inderpuri that SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 1 of 21 one Geeta who was BC of area was selling smack and if raid conducted, she could be apprehended with smack. Thereafter he prepared raiding party consisting of himself, HC Rajender W/H. Ct Rekha, he also shared the information with SHO Insp Ram Mehar who directed him to conduct the raid. There upon, they reached at the house of accused at about 9.30pm, accused was sitting outside her house on cot and selling smack, thereafter section 50 NDPS Act notice was served upon accused and accused refused for search in presence of Gazetted Officer/Magistrate. Then the search of accused was conducted by W/H. Ct Rekha and three plastic pouches were recovered from beneath right thigh of accused, the said pouches were containing brownish powder which was found to be smack on smell. Thereafter, ASI Jai Singh took 01gm sample from each of said pouch i.e. mark A1, B1 and C1 and sealed the remaining contents with mark A, B and C. After that the FIR was lodged. W/SI Sushma investigated the matter and after conclusion of investigation, charge-sheet was filed. FSL report of samples mark A1, B1 and C1 was found positive for Diacetylmorphine.
2. On appearance of the accused copies of documents were supplied to accused. Charge for committing offence punishable under Sections 21 (b) NDPS Actwas framed against accused by Ld. Predecessor order on 30.05.2018 to which accused pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined 09 witnesses. Prosecution witnesses correctly identified the accused and case property in the court.
SC No. 115/18 FIR No. 55/18PS Indepuri State Vs. Geeta Page No. 2 of 21 Prosecution Evidence:-
4. PW-1 ASI Jai Singh deposed that on 12.03.2018, he was posted at PS Inderpuri and was on emergency duty from 8.00 PM to 8.00 AM along with Ct Sandeep. On that night, he received DD NO. 34 A (Ex PW1/A) at about 8.34 PM which pertains to snatching of mobile phone in front of AB Block near Rajpal School and near J J Colony. Thereafter, they both reached at the spot. As there no caller/complainant met them so PW1 after leaving constable Sandeep there, came to C Block, Police Booth, JJ Colony, Inderpuri. At Police Booth, HC Rajinder and W/HC Rekha met PW1, in the meantime secret informer came to police booth at about 9.00 PM and informed PW1 that Geeta who was the BC of the area was selling smack if raided she could be apprehended along with smack. On this information, PW1 prepared a raiding party comprising himself, HC Rajinder and W/Ct. Rekha. PW1 also asked four-five public persons to join the raiding party but all refused to join the same. PW1 also shared the information with SHO Inspector Ram Mehar who directed him to conduct raid as per law. Thereafter, without wasting time they along with secret informer reached near the house of Geeta and they took shelter near the wall which was before the two houses from the accused Geeta and they started waiting for signal of secret informer. The secret informer informed them at about 9.30 PM that Geeta was sitting outside her house on a cot and selling the smack. On this information, they apprehended accused with the help of W/HC Rekha and with the secret informer had already left after pointing out SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 3 of 21 towards Geeta. They shared the information with Geeta that they have an information that she was selling smack. Thereafter PW1 prepared a notice under Section 50 of NDPS Act and the contents of the notice were read over to Geeta. She was also apprised about her legal rights that if she wanted to give herself before any Gazetted officer or Magistrate, such arrangements could be made at the spot. She was also told that she can take search of the police party before giving herself but she refused to avail all such opportunity. So notice under Section 50 NDPS Act (Ex PW1/B) was served upon her. As she was illiterate so her reply/refusal (ExPW1/C) was written by PW1 which accused signed. Thereafter, search of Geeta was conducted by W/HC Rekha and three plastic pouches were recovered from beneath the right thigh of Geeta. The said pouches contained brownish powder. The said brownish powder was smelled and from the smell it found to be smack. The recovered pouches were measured and each pouch contained 5 gms smack. PW1 took out one gram each brownish powder/smack from the recovered pouches as sample. The remaining brownish powder was kept in the recovered pouches and same were converted into separate cloth pullandas and given the mark A, B and C and the samples were also converted into separate pullandas and were given mark A1, B1 and C1. All the exhibits were duly sealed with the seal of JS. PW1 also filled up FSL Form and also affixed seal of JS on it. Seal after use handed over to HC Rajinder. Thereafter, case property as well as samples were seized vide seizure memo Ex. PW1/D. In the meantime, SHO/Inspector Ram Mehar Singh also SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 4 of 21 reached at the spot and he also affixed his seal impression on the FSL Form and also put on all the Exhibits. PW1 handed over all the Exhibits along with FSL form and carbon copy of seizure memo to the SHO who took the same with him to PS. Thereafter, PW1 prepared a rukka Ex. PW1/E. Ct. Rajinder for registration of FIR who left with rukka at about 11.00 PM and returned back at the spot 12.00-12.15 midnight i.e. on 13.03.2018 along with W/SI Sushma who conducted the further investigation. PW1 handed over the custody of accused Geeta to W/SI Sushma. As it was late night, so IO W/SI Sushma requested SHO to take permission from concerned Duty Magistrate for the custody of accused Geeta. On this SHO Ram Mehar Singh again came at the spot. Thereafter, SHO and W/SI Sushma after leaving them at the spot went to residence of Duty MM and they returned back at the spot after taking permission at about 2.30-2.45 AM. IO prepared the site plan (Ex PW1/E) of the spot at instance of PW1 and recorded statement of PW1 and he was relieved from the spot. PW1 correctly identified the case property. During evidence of PW1, MHCM produced one cloth pullanda having the seal impression of JS and RMS and also having the details of case on it as well as the signatures of SHO R M Singh. The pullanda was opened and from it one transparent pouch containing three another small pouches marked as Mark A, B and C containing brownish powder are taken out. PW1 correctly identified the same as recovered from the possession of accused Geeta Ex.P1(collectively).
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5. PW2 HC Rajender Singh and PW4 W/HC Rekha deposed in line of PW1 ASI Jai Singh.
6. PW-3 Inspector Ram Mehar Singh deposed that on 12.03.2018, he was posted at PS Inderpuri as SHO. On that day, he was present in the office and at about 09:45 PM. ASI Jai Singh informed him over telephone that he had apprehended a lady, namely, Geeta with smack. PW3 shared this information with ACP, Mayapuri, who directed him to conduct investigation as per law. Thereafter, PW3 directed ASI Jai Singh to conduct the investigation as per law. PW3 also went to the spot and ASI Jai Singh informed him about the recovery of smack and he handed over one pullanda, FSL Form and three sample parcels, which were duly sealed with the seal of 'JS' along with copy of seizure memo to PW3. PW3 also verified the facts from ASI Jai Singh. PW3 also put his seal impression of 'RMS' on the recovered pullanda, sample parcels and FSL Form for the compliance of 55 NDPS Act. PW3 reached back to PS and called the MHC(M) with Register No. 19 and all the exhibits, FSL Form and copy of seizure memo were handed over to MHC(M), who made entries in Register No. 19 as per copy of seizure memo. PW3 also signed the entry on Register No. 19. As the recovery was effected in the night from accused Geeta, W/SI Sushma, who conducted further investigation, requested PW3 to take permission from the Duty MM for the custody of accused Geeta. So, PW3 again reached the spot. From the spot, PW3 along with W/SI Sushma took accused Geeta at the residence of learned Duty MM and after taking permission in SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 6 of 21 writing, PW3 returned back to PS and the IO was directed to conduct further investigation. On 13.03.2018, information under Section 57 of NDPS Act (ExPW3/A) given by ASI Jai Singh was forwarded by PW3 to ACP office.
7. PW5 HC Virender Singh proved the FIR (Ex PW5/C) on the basis of rukka (ExPW5/D).
8. PW-7 W/SI Sushma deposed that on 12.03.2018 she was posted at PS Inderpuri as SI. On that day on the direction of the Insp. Ram Mehar, then SHO PS Inderpuri, she was assigned the further investigation of the present case. HC Rajender handed over her copy of FIR alongwith original rukka to her. Thereafter PW7 alongwith HC Rajender reached at the spot at 12.15 a.m. where ASI Jai Singh and W/HC Rekha alongwith accused met PW7. ASI Jai Singh narrated her the facts of the matter. PW7 prepared Site Plan (Ex PW1/E) of the spot at the instance of ASI Jai Singh. As it was late night so PW7 took the permission from the SHO for the arrest of the accused. SHO came at the spot. PW7 after leaving the custody of accused to ASI Jai Singh, W/HC Rekha and HC Rajender went alongwith SHO for permission of Ld Duty MM. After taking the permission for the arrest of accused from learned MM, PW7 reached the spot at about 12.45a.m. PW7 also asked nearby neighbourers to join the investigation but none agreed so accused Geeta was arrested at about 03.00a.m (Ex PW2/A) and her personal search was conducted (Ex PW2/B) and from her personal search one Notice u/s 50 NDPS Act and cash of Rs.70/-was recovered. Thereafter PW7 requested the SHO to provide the vehicle for taking the SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 7 of 21 accused to PS after her arrest. The medical examination of the accused was also got conducted at RML hospital. After that she was produced before the concerned Court and was sent to JC. On 26.03.2018 exhibits were sent to FSL, Rohini. PW7 recorded the statement of witnesses and after completing the investigation. PW7 filed the challan qua the accused through SHO before the learned court. Later on FSL result was filed in the court by SI Bimla. PW7 identified the Notice u/s 50 NDPS Act (already ExPW1/B).
9. PW8 Dr Subhash Chandra from FSL deposed that he received the sample in office in FIR No. 55/18, PS Inderpuri for chemical examination. On chemical examination, Ex A-1, B-1 and C-1 were found to contain 'Diacetylmorphine', '6- monocetylmorphine', 'Acetaminophen', 'Caffeine' and 'Acetylcodeine' and Ex A-1, B-1 and C-1 were found to contain 'Diacetylmorphine' 1.1%, 1.0% and 1.4% respectively and proved his report (Ex PW8/A).
Statement of the accused:
10. Statement of the accused was recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in evidence were put to the accused to which accused denied all the incriminating circumstances and stated that she was called in PS on 12.03.2018 for enquiry and took her signature forcefully on blank papers, thereafter they implicated me in a false case and did not prefer to prefer to lead defence evidence thereafter matter was fixed for final arguments.
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11. Ld Addl. PP submitted that by the evidence of PW1 ASI Jai Singh, PW2 HC Rajender and PW4 W/HC Rekha, it has been proved by the prosecution that three pouches of 05gm each was recovered from accused Geeta and as per FSL report Ex PW8/A, it has been proved by the prosecution that the sample mark A1, B1 and C1 were containing Diacetylmorphine. It is further argued by Ld Addl. PP that all the mandatory provisions of NDPS Act have been followed and there is no contradiction in the case of prosecution, therefore, the prosecution has proved its case beyond reasonable doubt that accused was found in possession of 15gm of smack and prays for conviction of accused.
12. Ld counsel for accused on the other hand argued that prosecution has violated mandatory provisions of NDPS Act and case of prosecution is full of lacunae. It is further argued by Ld counsel for accused that the samples drawn on the spot were sent to FSL and Section 52A NDPS Act proceedings were never conducted in this matter, therefore, primary evidence w.r.t. samples has never come on record and trial has been vitiated (reliance has been placed upon Yusuf @ Asif Criminal Appeal no. 3191 of 2003 decided by Hon'ble Supreme Court of India on 13.10.2023). It is further argued by Ld counsel for accused that secret information received by PW1 was never reduced into writing, nor any DD entry was lodged. Moreover, the search warrant was also not obtained and even the reasons to believe for not obtaining search warrant in case of exigency has not been SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 9 of 21 mentioned by the IO as the search was made at 9.30pm, therefore, there is violation of section 42 NDPS Act. It is further argued by Ld counsel for accused that accused was never apprised of nearest Gazetted Officer/Magistrate available therefore the word 'nearest Gazetted Officer/Magistrate' has not been mentioned in the notice u/s 50 NDPS Act, the notice u/s 50 NDPS Act is defective and was never served upon accused. It is further argued by Ld counsel for accused that PW2 HC Rajender Singh who was present during the raid has deposed that in his presence, IO has prepared only search memo and tehrir therefore this shows that section 50 NDPS Act was not served upon accused and has been in-corroborated in the file later on just to falsely implicate the accused. It is further argued by Ld counsel for accused that samples mark A1, B1 and C1 were 01gm each but when they reached FSL, their weight double and their weight become 1.92gm, 1.91gm and 1.97 gm respectively, therefore, how the weight of samples increased to about double of its weight has not been explained by the prosecution and when there is delay of 13 days in sending the samples to FSL, the delay in sending the samples to FSL has also not been explained by the prosecution. It is further argued by Ld counsel for accused that police officials without any field testing kit came to conclusion that the recovered material was smack and arrested the accused therefore this shows that they just want to implicate the accused and there is contradiction w.r.t. preparation of documents on the spot or inside the house of accused. It is further argued by Ld counsel for accused that in the present matter, there is no handing SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 10 of 21 over memo of seal, therefore, it cannot be said that after seizure of case property, till deposition of case property in FSL, IO/PW1 ASI Jai Singh was not having possession of seal therefore the misuse of seal cannot be ruled out and prays for acquittal of accused. Ld counsel for accused has relied upon Yusuf @ Asif Vs State, Crl Appeal No. 3191 of 2023 of Hon'ble Supreme Court of India, Karnail Singh Vs State of Haryana, Crl. Appeal No. 36/2003 of Hon'ble Supreme Court of India, Mina Pun Vs State of UP, SLP (Criminal) No. 3166 of 2023 Hon'ble Supreme Court of India, Akhilesh Bharti Vs State, Bail Application No. 973/2019 dated 20.01.2020 of Hon'ble High Court of Delhi, Mangilal Vs State of MP, Crl. Appeal No. 1651/2023 of Hon'ble Supreme Court of India, State of Haryana Vs Asu Ram, [2014 (4) Crimes 193 (P&H)] Amarjit Singh Vs State of Punjab, Crl Appeal No. 534-SB of 1997 decided on 03.03.2008. Discussion:
13. PW1 ASI Jai Singh deposed that from the three recovered parcels of 05gm each, he took out 01gm brownish powder/smack as sample and same were converted into separate pullandas and were given mark A1, B1 & C1, the remaining smack was sealed in separate pullanda and was given mark A, B and C. PW7 W/SI Sushma deposed that on 26.03.2018 the exhibits/samples were sent to FSL, PW8 Dr Subhash Chandra deposed that on 26.03.2018 the sample A1, B1 and C1 were received in FSL with seal of JS and RMS.
14. In Simarjit Singh Vs State of Punjab, SLP No. 1958/2023 dated 09.05.2023 Hon'ble Apex courts held as:-
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5. The learned counsel appearing for the appellant relied upon a decision of this Court in the case of Union of India v. Mohanlal & Anr.
He submitted that the prosecution is vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub-section 2 of Section 52A of the NDPS Act. He also pointed out that the examination-in-Chief of PW-7 SI Hardeep Singh which shows that the samples were drawn immediately after the seizure.
6.The learned counsel appearing for the respondent-State supported the impugned judgments.
7.We have perused the evidence of PW-7 Hardeep Singhin which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.
8.In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case, it was held thus:
"15.It is manifest from Section 52-A(2) include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-
in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 12 of 21 provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16.Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence,which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words,the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17.The question of drawing of samples at the time of seizure which, more often than not,takes SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 13 of 21 place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
9.Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal1.This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
10.Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt.
Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence.
15. In the judgment of Yusuf @ Asif Vs. State, Criminal Appeal No. 3191/2023 Hon'ble Supreme Court of India has held:
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16. "11. For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:
"52A. Disposal of seized narcotic drugs and psychotropic substances.-
(1)______ (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs,psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs,psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate,photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.(3) Where an application is made under subsection (2), the Magistrate shall, as soon as maybe, allow the application.(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974),every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 15 of 21 drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."
12.A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity,mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13.Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.
14.It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
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15.In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone Union of India vs Mohanlal and Anr. (2016) 3 SCC 379 would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn the refrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside."
17. In the present matter, the sample drawn by PW1 ASI Jai Singh seizing IO were sent to FSL and not the sample drawn before Ld. Magistrate as per Judgment of Simarjit (Supra) and SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 17 of 21 Yusuf (supra). In the case in hand, no application u/s 52A NDPS Act has been moved till date, therefore, in absence of any material on record to establish that the samples of the seized contraband were drawn in presence of Ld. Magistrate and that the inventory of the seized contraband which were sent to FSL was duly certified by Ld. Magistrate, it is apparent that seized contraband and samples drawn are not a valid piece of primary evidence in trial (reliance placed on Yusuf (supra) judgment). When there is no primary evidence available w.r.t. samples, then the whole trial vitiates and on this sole ground, the accused is entitle to acquittal but other pleas of Ld. Counsel for accused are also discussed.
18. PW1 ASI Jai Singh had deposed that he received the information at about 9pm when he was at C block, police booth, JJ Colony, Inderpuri, HC Rajender/PW2 and W/HC Rekha also met him there, thereafter he shared the information with PW3 Insp Ram Mehar Singh and on oral directions of Insp Ram Mehar Singh, he conducted raid with HC Rajender and W/HC Rekha. It is admitted case of prosecution that no DD entry has been lodged regarding secret information about presence of contra-band with accused, even there is no written order for formation of raiding party that too in the case where a lady is involved and the information was received during night at 9.00pm. PW1 ASI Jai Singh even has not mentioned his reasons to believe as per section 42 (1) proviso for search after sunset and before sunrise without search warrant. Section 42 (1) proviso states that -if such officer has reason to believe that a search warrant or SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 18 of 21 authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
19. Therefore in absence of any such reason to believe as specified u/s 42 (1) proviso and absence of any DD entry w.r.t. reducing secret information into writing and formation of raiding party for the said recovery. It is non compliance of section 42 NDPS Act.
20. It is a unique case in which PW1 ASI Jai Singh when recovered the case property from accused then he smelled it and declared that it was smack and arrested the accused without any primary test by field testing kit which is to be carried on the spot therefore it seems that PW1 is an expert and can tell about each and every narcotic or psychotropic substance without any test.
21. PW1 ASI Jai Singh has deposed that accused was apprehended outside her house with contra-band and thereafter he prepared the documents i.e. notice u/s 50 NDPS Act, filled FSL form, prepared rukka Ex PW1/E, prepared seizure memo ExPW1/D but ironically PW4 W/HC Rekha who was part of raiding party had deposed that all the documents were prepared by the IO inside the room of house of accused but PW1 never deposed that he prepared the document inside the house of accused.
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22. It is further argued by Ld counsel for accused that there is change in weight of samples when they were sent to FSL. As per PW1, the sample mark A1, B1 and C1 were having weight of 1gm each but as per FSL report Ex PW8/A, sample A1, B1 and C1 were having weight of 1.92gm, 1.91gm and 1.97gm respectively. It is approximately double the weight of the samples sent by PW7 W/SI Sushma to FSL and it is not explained by the prosecution or by Forensic expert how the weight of samples increased nearly to double. This fact becomes more important as there is no handing over memo of seal in present matter from PW1 ASI Jai Singh to PW2 HC Rajender and it cannot be said that PW1 ASI Jai Singh was not having the possession of seal after sealing the case property till deposition of samples in the FSL, in addition to this, there is also delay of 13 days in sending the samples as the samples were seized on 12.03.2018 and were sent to FSL on 26.03.2018, therefore, there is gap of 13 days in sending the samples to FSL and no explanation has been put forward by the prosecution/IO why the samples were not sent to FSL at the earliest or within 72 hours of seizure. Reliance has been placed upon seizure on the judgment of State of Haryana Vs Asu Ram, [2014 (4) Crimes 193 (P&H)] and Amarjit Singh Vs State of Punjab, Crl Appeal No. 534-SB of 1997 decided on 03.03.2008 wherein the delay of 08 days and 06 days respectively in sending the samples to FSL proved fatal to the case of prosecution with other factors and in the present matter also, there is doubt w.r.t. weight of the contra-band seized and sent to FSL, absence of handing over memo of seal, conclusion SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 20 of 21 of PW1 ASI Jai Singh w.r.t. contraband seized without any field test, discrepancy w.r.t. place of preparation of documents and then keeping the sample for 13 days without any justification raises doubt on the prosecution.
Final verdict:
23. Accordingly, in view of the abovesaid discussion, it is on record that prosecution has violated mandatory provision of NDPS Act and has failed to prove its case beyond reasonable doubt, accordingly, accused Geeta is acquitted of the offence u/s 21 (b) NDPS Act. Separate ordersheet has been passed for compliance of section 437-A CrPC.
Announced in the open court on 18.12.2023 (SUDHIR KUMAR SIROHI) ASJ (SPECIAL JUDGE) NDPS Act, New Delhi District, PHC, ND SC No. 115/18 FIR No. 55/18 PS Indepuri State Vs. Geeta Page No. 21 of 21