Delhi District Court
Singh vs . State Of Haryana, 2009 (4) C.C. Cases ... on 25 November, 2011
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE (CENTRAL): DELHI
S. C. No. 145/2006
FIR No. 75/2006
PS Narcotics Branch
U/s 21 of Narcotics Drugs & Psychotropic Substances Act, 1985
In the matter of :
State
Versus
Anil Kumar Aggarwal
S/o Late Sh. Devi Prasad,
R/o 1515, Gali Arya Samaj, Sita Ram Bazar,
Delhi. .....Accused
Date of institution : 18.10.2006
Date of Judgment : 25.11.2011
J U D G M E N T
Anil Kumar Aggarwal has been facing trial for an offence under Section 21 of Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "Act of 1985").
Accusation levelled against Anil Kumar Aggarwal is that on 19.08.2006, at about 1.20 pm, firstly, opposite Novelty Cinema, Delhi, within the jurisdiction of Police station Narcotics Branch, he was found in possession of 1 kilogram of smack/heroin (which on analysis at FSL was found to contain dicacetylmorphine to the extent of .02% and diazepam to the extent of .4%).
FIR No. 75/2006 1
Secondly, on the same day, at his chemical shop no. 992, Gali Teliyan, Tilak Bazar, Delhi, he is also alleged to have been found in possession of 4 Kilograms of heroin (which on analysis at FSL was found to contain dicacetylmorphine to the extent of.03% and diazepam to the extent of .033%) and 490 grams of Diazepam( to the extent of 78.72% as found on analysis at FSL).
2. It is case of prosecution that on 19.08.2006, at about 11.15 a.m, Sub Inspector Satish Rana of Police Station Narcotics Branch received secret information that Anil Kumar Aggarwal, resident of Ram Bazar, who used to supply smack in Delhi, would reach in front of Novelty cinema in company of his son Sharad Kumar with heavy quantity of heroin, in between 1 p.m. 2 p.m.) to pass over the same to some one, and that he could be apprehended, if raid was conducted. The SI is alleged to have satisfied himself about the information and produce the secret informer before the SHO. The SHO in turn also satisfied himself about the secret information and communicated the information to Sh. Mehar Singh, ACP Narcotics Branch telephonically at his office. In turn, ACP directed that raid be conducted. The Sub Inspector reduced into writing the secret information in DD No.8A at 11.45 am, at PS Narcotics Branch. Its copy was placed before the SHO, then forwarded the same to the office of ACP, on the same day.
Further, it is the case of the prosecution that SI Satish Rana constituted a raiding party consisting of himself, HC Satbir, Ct. Rajbir, HC Abdul Hakim, Ct. Parveen and Ct. Yogesh, and informed the members FIR No. 75/2006 2 about the secret information. The raiding party then reached the disclosed place at 12.40 p.m in government vehicle no. DL ICF 3426. Efforts were made to join persons from the public, but none came forward.
It is case of the prosecution that government vehicle was parked at a distance of 50 meters before the Novelty Cinema and Ct. Yogesh was deputed on it. Nakabandi was held and members of the raiding party took positions.
It is case of the prosecution that at about 1.15 pm Anil Kumar Aggarwal (accused) came on foot from the side where HC Satbir and HC Parveen was standing. He was carrying small black colour bag in the right hand. Secret informer verified the identity of the accused. The accused stood there for five minutes. When he was about to go back, he was apprehended by the police.
SI Satish Rana apprised the accused of his right of being searched in presence of a Magistrate or Gazetted Officer and in this regard, served notice under Section 50 of the Act upon him. The accused, vide his reply, opted not to avail of being searched in presence of a Gazetted Officer or Magistrate. SI Satish Rana then asked 45 passersby to join raiding party but none came forward. He then conducted search of the accused but nothing incriminating was recovered from his personal search, but the bag, which the accused was carrying, led to recovery of one transparent polythene containing matmaila colour substance. SI tested the same and found to be heroin. It was weighed and found to be 1 kilogram.
From the quantity of 1 kg, SI Satish Rana drew two samples, each of 5 grams, turned the same into parcels and sealed the same with the seal FIR No. 75/2006 3 bearing impression of 6CTSNB, DELHI. Remaining heroin was kept in the aforesaid polythene and then put into the same bag, turned into a parcel and sealed with the aforesaid seal. These were taken into possession. The seal, after use, came to be handed over to Ct. Parveen.
SI Satish Rana prepared rukka and handed over the same to HC Satbir for registration of the case. SI also handed over to the HC three sealed parcels, Form FSL and carbon copy of seizure memo with direction to produce the same before the SHO.
It is also case of the prosecution that on the basis of rukka brought by HC Satbir, present case was registered.
HC Satbir produced before the Inspector Kharak Singh at PS Narcotics Branch, the above referred to parcels, copy of seizure memo and form FSL. Thereupon SHO mentioned FIR number of this case, on these three items. He then handed over these items to MHC(M) for deposit in malkhana and at the same time, made entry in register no. 9, and signed the same.
It is further case of the prosecution that SI Sunil Jain was assigned further investigation. SI accompanied by constable Yogesh reached the spot where SI Satish Rana and others were found present with the accused. He took over all the documents from SI Satish Rana, inspected the spot, prepared site plan, interrogated the accused and arrested him.
Further, it is case of the prosecution that accused made disclosure statement and in pursuance thereof led the police party to his shop no. 992, Gali Talian, Tilak Bazar. SI Sunil Jain asked some passersby to join the investigation but the refused. Accused opened his shop. From inside, the FIR No. 75/2006 4 shop, he picked up one big polythene and produced it before the SI and stated that it contained mixture of Barbitol, paracetamol, Diazepam and Brucine.
SI Sunil Jain weighed the contents of polythene and found the same to be 4 kgs. He drew two samples of five grams each and turned the same into parcels. The residue was also turned into a parcel. These parcels were then sealed with the seal bearing impression 5A PS NB DELHI.
SI Sunil Jain found another transparent ploythene containing white powder tied with rubber band. Same was weighed and found to be 490 grams. SI drew two samples of five grams each, turned the same into parcels. The residue was also turned into parcel. These parcels were then sealed with the seal bearing impression 5A PS NB DELHI.
The accused then got recovered two small transparent polythene before SI containing white powder tied with rubber band. Same was weighed and found to be 85 grams. SI Sunil Jain drew two samples of five grams each, turned the same into parcels. The residue was also turned into parcel. These parcels were then sealed with the seal bearing impression 5A PS NB DELHI.
One glass bottle containing Brucine was also got recovered by the accused. Bottle was closed with green cap having CDH Mark. Bottle was of 100 grams. Same was turned into parcel and sealed with the seal bearing impression 5A PS NB DELHI.
Form FSL was also filled in by SI Sunil Jain in respect of the above referred to parcels.
It is further case of the prosecution that accused produced FIR No. 75/2006 5 photocopy of electricity bill for the month of June, 2006 in the name of his wife. Same was taken into possession. Wife of accused reached the shop and as such keys of the shop were handed over to her while informing her about arrest of his husband.
It is further case of the prosecution that SI Sunil Jain also produced above said all the parcels before the SHO who, in turn, put his seal bearing impression 1 SHO NBR DELHI on all these parcels and then got the same deposited in malkhana and signed the entry in register No.19.
On 20.08.2006, reports under Section 57 of the Act were handed over by SI Satish Rana and SI Sunil Jain to the SHO, who forwarded the same to the office of ACP.
The above referred sealed samples and the FSL form were sent to FSL for analysis. On completion of investigation challan was put in Court.
Copies of documents relied upon by the prosecution were supplied to the accused free of cost.
Charge
3. As noticed above, charge for an offence under Section 21 of the Act was framed against the accused on 06.12.2006. Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
Prosecution evidence
4. In order to prove its case, prosecution examined following ten witnesses: FIR No. 75/2006 6 PW1 Sh. Amsit Kaushik, To prove that electricity meter from BSES, Chandni installed at Shop No.992, Gali Chowk Telian, Tilak Bazar, Delhi, was in the name of Sunita Mittal, W/o Sh. Anil Kumar.
PW2 HC Ghasi Ram, the to prove DD No.13A Ex.PW2/C, concerned Duty Officer DD No.15A Ex.PW2/D, Copy of FIR Ex.PW2/A, endorsement Ex.PW2/E appended to the rukka.
PW3Ct. B.K. Dass, from To prove DD entry Ex.PW3/A; the office of ACP, Narcotic special reports Ex.PW3/B & Branch Ex.PW3/C and reports Ex.PW3/D1 to Ex.PW3/D4 received in the office of the said ACP.
PW4 Ct. Subhash To prove deposit of sealed
parcels with FSL form at FSL
Fohini on 04.09.06.
PW5 Inspector Kharak The concerned SHO of PS
Singh, Narcotics Branch.
PW6 HC Jagdish Parsad - who dealt with the case property concerned MHC(M) of this case.
PW7 SI Sunil Jain who made recovery of 1 kg of
heroin from the accused in front
of Novelty Cinema, took
samples, got the case registered
and got the case property
deposited .
PW8 Ct. Parveen, Member To prove arrest of accused and of the raiding party recoveries.
PW9 HC Satbir, Member of To prove arrest and recoveries.
the raiding party
FIR No. 75/2006 7
PW10 SI Satish Rana who made recoveries from the
shop of the accused, drew
samples, and investigated the
matter.
Statement of accused
5. In his statement recorded U/s 313 Cr.P.C., the accused denied all the incriminating circumstances already against him. The defence plea put forth by the accused reads as under : "At that time, I was at my shop. Three police persons first came to the shop adjacent to my shop named Aggarwal Chemicals and after sometime they came to my shop. Police people had brought two people with them and I do not know as to who they were. They told me to get up as they were from Narcotics Branch. I told that I would give a ring to police at No.100 on which they took my telephone and threw it on me and they dragged me out of my shop and took me with them.
On the way, my son Sharad Mittal who had gone to Tailor's shop for getting his clothes stitched met us and he asked the police people as to why and where I was being taken. They told my son that they were taking me to Police Station Shakar Pur. On inquiry by my son, police people got annoyed and also took my son with them.
They took us to near Novelty Cinema where an Alto car was parked, we both were put in that and taken away to some distance and near Railway Station Gate No.1 near platform No.12, a police vehicle was standing. The police people made the two persons brought by them sit in the police vehicle and brought us all to police station Shakar Pur. There three police officials threatened me and demanded a FIR No. 75/2006 8 sum of Rs.10 lacs from me, otherwise they would frame a case of Narcotics against me.
In the evening, they asked me that if I could give them Rs.4 lacs then they would leave my son; otherwise he would also be framed. I gave a ring to my wife and told her the position. My wife sold her ornaments and made arrangement of Rs.3 lacs and Ct. Parveen and Ct.Rajbir were paid their amount by her in the evening and they left my son at about 9.00 p.m. But they did not leave me and framed this case against me. At 9.00 p.m. my son was let off and keys of the shops were kept by them and were given by them to my wife on next day by calling her in the police station."
He further pleaded that his wife was asked to produce the electricity bill and as such, she produced the same. As regards keys of the shop, the accused pleaded that same were given to his wife in the police station on the next date.
The accused further pleaded as under : "I am innocent. Police had falsely lifted me from my shop as also my son as stated above and made a demand of Rs.10 lacs from me in order to secure our release. My wife sold her jewellery articles and paid a sum of Rs.3 lacs to police officials and then my son was let off. However, this false case was made against me. Ct. Parveen had talked to my son and had asked him to come to Police Station and for that I have a recorded conversation of that constable with my son which I want to produce in the court for perusal and hearing. Nothing was recovered from me. No such proceedings were ever conducted against me".
FIR No. 75/2006 9 Defence evidence
6. In his defence, accused has examined his son Sh. Sharad Mittal, as DW 1: his wife Smt. Sunita Mittal DW 2: his driver Sh. Uttam Lal as DW3: and Sh. Sanjay Verma, from whom he is alleged to have borrowed a sum of Rs. 2,90,000/ as DW4.
Arguments heard. File perused.
Discussion Secret information - Noncompliance with provisions of Sec.42
7. As per prosecution version, on 19.08.06, a secret information was received by SI Satish Rana of police station Narcotics Branch. To prove receipt of secret information and its communication to SHO and ACP, prosecution has examined PW10 SI Satish Rana, PW5 Inspector Kharak SinghSHO and PW3 Ct. B.K.Dass from the office of ACP.
Learned Addl. Public Prosecutor has submitted that this is a case where provisions of Section 42 have been duly complied with by recording the same in dailydiary entry, and then forwarding its copy to the immediate senior police officer i.e. SHO, who in turn also sent the same to the office of ACP.
On the other hand, Learned defence counsel has contended that this is a case where provisions of 42 of the Act have not been complied with, as the information was not recorded immediately when it is alleged to have been received, but the same is alleged to have been orally passed on to the SHO and ACP, and ultimately recorded in the form of DD no. 8A, and as such accused is entitled to acquittal for non compliance with the provisions FIR No. 75/2006 10 of Section 42.
Section 42(2) of the Act provides that where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventytwo hours send a copy thereof to his immediate official superior.
Substantial compliance with the provisions of Section 42 of the NDPS Act is required. Reference may be made to decision in Karnail Singh Vs. State of Haryana, 2009 (4) C.C. Cases (SC)1.
Having regard to the above settled legal proposition for compliance with the provisions of Section 42 of the Act, this Court proceeds to find out as to whether this is a case of due compliance with these provisions or not.
Herein secret information is alleged to have been received on 19.08.06 at 11.15 a.m. by SI Satish Rana while he was present at PS Narcotics Branch, Delhi. According to PW10 SI Satish Rana, the secret informer had come to him at the police station and provided secret information against the accused, about expected arrival of the accused and his son in front of Novelty Cinema, to supply smack in heavy quantity in between 1.00 p.m 2.00 p.m. At 11.30 p.m., he produced the secret informer before Inspector Kharak Singh, SHO, who in turn informed the concerned ACP.
PW5 Inspector Kharak Singh is the concerned SHO. According to PW5, on 19.08.06 SI Satish Rana produced before him a secret informer at 11.30 a.m. and the secret informer apprised him of the secret information. In his statement, the witness narrated the contents of the secret information disclosed to him. He also deposed about his satisfaction over the secret FIR No. 75/2006 11 information and to have communicated the same telephonically to ACP Mehar Singh.
PW10 has proved Ex.PW3/A - copy of DD No.8A recorded by him at PS Narcotics Branch, Delhi on 19.08.06 which is said to have been forwarded to senior officers.
A perusal of Ex.PW3/A would reveal that it purports to bear signatures at two places i.e. signatures of SHO and of ACP.
When it is the case of prosecution that Ex.PW3/A was put up before PW5the SHO, it was for PW5 to prove his signatures on this document in proof of this fact. It may be mentioned here PW5 has not proved his signatures on Ex.PW3/A. In his cross examination, the SHO could not say if DD No.8A was recorded after the information was communicated to ACP.
PW3 Ct. B.K. Dass is from the office of ACP, examined to prove receipt of copy of DD no.8A at the office of ACP on 19.08.06 vide entry at Sr. No.1530 in the concerned diary register. According to PW3, this DD entry was placed before ACP, who signed the same at point A. A perusal of this document would reveal that it purports to contain initials of ACP with date under his designation.
In his cross examination, PW3 stated that the date below the signatures of ACP, on Ex.PW3/A is in the handwriting of the person who had put up report before ACP. This goes to show that the ACP put only his signatures, when the date had already been written underneath by the official who put up the entry for his signatures.
Ex.PW3/D1 is photocopy of entry No.1530 made in the diary FIR No. 75/2006 12 register, maintained by the office of ACP. In the 3rd column of this entry is the subject to which this entry pertains i.e. regarding secret information in DD no.8A dt.19.08.06 of PS Narcotic Branch. It is significant to note that in column no.4 of this entry word 'seen' finds mention but the same does not bear any signature.
The prosecution could examine the concerned ACP to explain as to why this entry no.1530 does not bear his signatures/ initials in proof of his having seen the same. Only on examination of ACP it could be explained as to why the concerned ACP did not put date or time of having seen the secret information as reported in DD No.8A.
So when this entry in the register required to be initialed by the ACP, in proof of having seen the information recorded in the document received at his office , does not bear his signatures, it is difficult to say that any such information in the form of DD No.8A reached the office of ACP.
Having regard to the gravity of the offence, and the importance of communication of information to the senior police officers, what to say of the date, even the time of communication to or receipt of such information by the senior officers, gains significance. Therefore, the concerned senior officers should not only put their complete signatures, but also date and time of receipt of such information so that prosecution is able to establish communication to or receipt of such information by the concerned senior officers and substantial compliance with provisions of Section 42 of the Act.
In view of the above material, this Court holds that this is case where prosecution has failed to prove compliance with the provisions of FIR No. 75/2006 13 Section 42(2) of the Act. Non compliance with this provision is certainly fatal for the prosecution as per settled law.
Arrival of accused
8. It is case of prosecution that after receipt of secret information SI Satish constituted, a raiding party, as per directions of the SHO. The party consisted of SI Satish Rana, HC Satbir, Ct. Rajbir, Ct. Abdul, Ct. Parveen and Ct. Yogesh.
According to PW10 SI Satish Rana, the party reached the disclosed place i.e. in front of Novelty Cinema and took possession. At about 1.15 p.m. Anil Aggarwal (accused) came on foot, following the pavement and carrying a small black colour bag in his right hand. The secret informer verified identity of accused and the accused stayed there for five minutes but he was apprehended only when he was to go back.
Noncompliance with provisions of Sec.50 of the Act
9. Before personal search of accused is conducted, compliance with provisions of Section 50 of the Act is required to be made. Section 50 reads as under:
"Conditions under which search of persons shall be conducted (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the FIR No. 75/2006 14 Magistrate refereed to in subSection (1).
(3) The Gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) xxxxxx xxxxxxxx xxxxxxxx xxxxxxxxx (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973.
(6) After a search is conducted under subsection (5), the officer shall recored the reasons for such belief which necessitated such search and within a seventytwo hours send a copy thereof to his immediate official superior."
As regards compliance with provisions of Section 50, in Narcotics Control Bureau Vs. Sukh Dev Raj Sodhi, 2011 (6) Supreme Court Cases 392, Hon'ble Apex Court reiterated that the obligation of the authorities under Section 50 of the NDPS Act is mandatory and that the provision of Section 50 must be very strictly construed, as held in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 Supreme Court Cases
609. Hon'ble Apex Court further observed in Sukhdev Raj Sodhi's case that as per conclusion arrived in Vijaysinh Chandubha Jadeja case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 Supreme FIR No. 75/2006 15 Court Cases 609 Hon'ble Judges of the Constitution Bench made it clear further that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate.
Let's see, if prosecution has proved compliance with this mandatory provision of law.
As regards compliance with provisions of Sec.50 of the Act, PW10 SI Satish Rana deposed that the accused was informed that his search was to be conducted. He was also informed about his legal right to give search in presence of a Magistrate or Gazetted Officer and that if he so desired, he could be taken before Magistrate or Gazetted Officer for his search or such Magistrate or Gazetted Officer could be called to the spot. Search of the police party and that of the government vehicle was also offered. PW10 has proved notice of Sec.50 of the Act served upon the accused and further stated that its copy was supplied to the accused. The accused refused to avail of his right of being searched in presence of Magistrate or Gazetted Officer vide his reply Ex.PW8/A. Notice U/s 50 of the Act Ex.PW8/A bears attestation of HC Satbir and Ct. Parveen. Ct. Parveen has been examined as PW8. Satbir has appeared as PW9.
According to PW8, SI Satish Rana apprised the accused about the secret information and that his search was to be conducted; it was his legal right that if he so wished he could be got searched in presence of Magistrate or Gazetted Officer who could be called to the spot or before whom the FIR No. 75/2006 16 accused could be produced; that he was also offered search of members of the raiding party as well as of the government vehicle.
According to witness, Ex.PW8/A is the original notice served upon the accused. Its carbon copy was delivered to the accused but the accused refused to get himself searched in presence of Gazetted Officer or Magistrate or even to conduct search of members of the raiding party and the Government vehicle, vide his reply Ex.PW8/B. HC Satbir has also deposed in line that statement of PW10 Satish Rana and Ct. Parveen on the point of service of notice U/s 50 of the Act and refusal of his search in presence of Gazetted Officer or Magistrate, vide reply Ex.PW8/B. PW8 & PW9 have deposed about their attestation on notice Ex.PW8/A and reply Ex.PW8/B. In his cross examination, PW9 HC Satbir stated to have attested the notice, but he could not tell if anyone from the police party had also signed under the reply furnished by the accused. This ignorance on the part of the witness creates doubt if any such reply was given by the accused or attested by the witnesses.
A perusal of Ex.PW8/A would reveal that at the top it bears DD No. 9A. Learned counsel for accused has pointed out that secret information was recorded in DD No.8 A and this number should have been mentioned but in its place DD no.9 A finds mentioned at the top.
Ex.PW10/C is copy of DD No.9 recorded at PS Narcotics Branch at 12.10 p.m. This is regarding departure of the party headed by SI Satish Rana from the police station for the disclosed place. In view of entry No. FIR No. 75/2006 17 8A, vide which the secret information was recorded, SI Satish Rana was supposed to mention DD No.8 A on the top of this docoment. Mentioning of No.9 A in place of DD No. 8 A on the top of this document creates doubt in the version of prosecution narrated by the Pws about the manner in which the police acted on receipt of secret information.
As held by Hon'ble Apex Court, as noticed above, requirement under Section 50 of the NDPS Act does not stand complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that, and it is required that the accused person is actually brought before the gazetted officer or the Magistrate. As noticed above, Hon'ble Judges of the Constitution Bench have made it clear further that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate.
Herein, it is not the case of prosecution that the accused was produced before any Gazetted Officer or Magistrate before his search was conducted.
In view of the above material and well settled law, this Court holds that this is case where prosecution has failed to comply with the provisions of Section 50 of the Act and its non compliance is also fatal for the prosecution.
FIR No. 75/2006 18
Nonjoining of witness from the public
10. Learned counsel for the accused has contended that in this case despite opportunity, the police failed to associate witnesses from the public and therefore, no reliance be played on the statements of the police officials examined by the prosecution, when there are material contradictions and discrepancies in their statements.
On the other hand, learned Addl. P.P. has submitted that as per well settled law statements of police officials cannot be rejected outrightly merely because of their official status and that nonjoining of witness from the public puts the court on bar to scrutinize statements of police officials with more care and caution. Further, it has been submitted that when there is no contradiction in the statements of the police officials, nonjoining of witness from the public does not adversely affects the case of prosecution.
Learned Additional Public Prosecutor has further submitted that when prosecution is required to establish its case, it does not mean that the degree of proof must be beyond a shadow of doubt. In support of this submission, learned Additional Public Prosecutor has referred to decision in the case of Iqbal Moosa Patel Vs. State of Gujarat, 2011 Cri LJ 1142.
As regards nonjoining of independent witness, in the case of Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, Hon'ble Apex Court has held as under: "The submission that the evidence of the official witnesses cannot be relied upon as their testimony has not been corroborated by any independent witness cannot be accepted. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine.
FIR No. 75/2006 19 In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. It may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated.
The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
It is case of the prosecution that on receipt of secret information SubInspector Satish Jain constituted raiding party and left for the disclosed place i.e. Novelty Cinema. According to PW10 SI Satish Rana, on way to Novelty Cinema, he asked persons present at the bus stop of Ramesh Park, four passersby and four rickshaw pullers at Hanuman Mandir to join the party but they expressed their difficulty and went away. It is also in his statement that before conducting proceedings at the spot he asked 45 passersby to join the proceedings but none of them agree, expressing their genuine difficulties.
Then there are statements of PW8 Ct. Parveen and PW9 HC Satbir who were members of the raiding party. Ct. Parveen and HC Satbir have also stated about efforts made by SI Satish Rana on way to Novelty Cinema to join witness from the public but those passersby and rickshaw pullers refused to join the party.
It is significant to note that as regards the efforts made by Investigating Officer at the spot, before going to initial proceedings, PW8 FIR No. 75/2006 20 Ct. Parveen stated that 810 persons had gathered at the spot but they did not join the proceedings. Even according to HC Satbir, 45 persons had gathered at the spot but none of them agreed to join the party. When some persons gathered at the spot, the SubInspector should have issued them notices on their refusal to joint the party. Had the passersby not gathered at the spot, it would have been a different matter. But when the passersby opted to gather at the spot, the Sub Inspector could insist one or two to join the party.
However, file reveals that no notice was issued by SI Satish Rana to any of 810 persons, who gathered at the spot, but allegedly refused to join the party/proceedings. There is no explanation as to why action was not taken against those persons who refused to assist the police in discharge of their official duties.
Production of case property before the SHO
11. It is case of prosecution that at the time HC Satbir left the spot with the rukka, he also took along three parcels, FSL Form and copy of recovery memo from SI Satish Rana and on reaching the police station, he produced the rukka before the Duty officer and three sealed parcels, form FSL and copy of seizure memo before the SHO. According to PW10 SI Satish Rana, he had directed HC Satbir to put the rukka before the Duty Officer three parcels, form FSL and carbon copy of seizure memo before the SHO.
Inspector Kharak Singh, the then SHO has appeared as PW5 and deposed about the arrival of HC Satbir at PS and production of three sealed parcels, form FSL and carbon copy of seizure memo. Further according to FIR No. 75/2006 21 PW5, he affixed seal on all the three parcels, on form FSL and also mentioned number of the FIR i.e. 75/2006 on the parcels, form FSL and carbon copy of seizure memo. The SHO then handed over the three parcels, form FSL and copy of seizure memo to MHC(M) vide entry no. 14A (Ex PW5/A) in register no. 19.
Ex PW6/A is copy of relevant entry made in register no. 19 and counter signed by the SHO at Sl. No. 649. A perusal of entry Ex PW6/A would reveal that there is no mention in this entry no. 649 that the sealed parcels and the FSL form deposited by the SHO with the MHC(M) on 19.08.2006 were accompanied by any copy of seizure memo.
It is true that in DD NO. 14A of 19.08.2006, it finds mention that the Inspector deposited with the MHC(M) three sealed parcels, form FSL and one carbon copy of seizure memo but it remains unexplained as to why there is no mention of copy of recovery memo in entry at Sl. No. 649 made in malkhana register. Non explanation in this regard further creates doubt in the prosecution version regarding the manner in which investigation is alleged to have been conducted.
Over writing regarding number of the FIR
12. It is case of prosecution that after recoveries where Novelty Cinema, where the investigation was taken up by SI Sunil Jain, who conducted personal search of the accused and arrested him vide memos Ex.PW7/B and Ex.PW7/C in presence of SI Satish Rana and Ct. Parveen.
Learned defence counsel has pointed out that at the top of both these memos Ex.PW7/B and Ex.PW7/C there is overwriting in the number of FIR FIR No. 75/2006 22 which creates doubt in the version of prosecution regarding arrest of the accused at the given date, time and place.
On the other hand, learned Addl. P.P. submitted that there appears to be inadvertent mistake in recording DD No.74 initially and overwriting digit '5' so as to read it as FIR No.75 vide which this case was actually registered and that no adverse inference should be drawn against the prosecution from this inadvertent mistake.
A perusal of record would reveal that initially FIR no.74 was written not only on these two documents Ex.PW7/B and Ex.PW7/C but also on disclosure statement Ex.PW7/E as well. When SI Sunil Jain took over investigation after registration of the case, he very well knew the number of the FIR i.e. 75/06. SI Sunil Rana started his investigation with personal search and arrest of the accused followed by recording of disclosure statement. Since as per prosecution version, the original rukka bearing number of the FIR i.e. 75/06 was available with SubInspector, he could not record FIR number in these three documents as '74' in place of exact FIR number i.e. 75. In the given circumstances, in view of overwriting relating to number of FIR on these three documents, it cannot be said to be an inadvertant mistake. Rather, same creates doubt once again in the manner in whch investigation has been conducted.
Nonjoining of witness from the public before search at the shop
13. It is case of the prosecution that from the place of recovery near Novelty Cinema the police party headed by SI Sunil Jain reached the shop no.992, Gali Talian, Tilak Bazar, Delhi, consequent upon disclosure FIR No. 75/2006 23 statement Ex.PW7/E made by accused and from that shop further contraband items were recovered.
Learned defence counsel has submitted that before conducting search at the shop of the accused the police officials should have associated persons from the public but in this case either before conducting search of the shop or during the proceedings conducting there, no witness from the public was associated despite there availability. Therefore, contention is that no reliance should be placed on the statement of the police officials.
PW7 SI Sunil Jain stated in his chief examination to have asked four the passersby to join investigation but those persons refused to join putting forth their excuse and also about providing their names and addresses. He further stated that the other shops by the side of the shop in question, were found lying closed.
In his cross examination, PW7 could not confirm if this shop had residential accommodation on the first and second floor. He also could not say if owner of the shop was residing in the residential portion, above the shop. The witness did not notice any house near the said shop.
When we advert to the statement of PW10 Ct. Satish Rana, who initially investigated the case, it transpires that this witness admitted that there is building above this shop. He admitted that there were residential buildings in the vicinity and that the Investigating Officer did not call any one from the upper portion or from the nearby houses. In this way, PW10 has contradicted PW7.
In his cross examination PW8 Ct. Parveen displayed ignorance if landlord of the shop of the accused was residing on the first floor or if the FIR No. 75/2006 24 landlord was called to witness recovery. He also displayed ignorance, if residents from the nearby house were called to witness the recovery. The witness also displayed ignorance if Tilak Bazar area (where shop of the accused is situate) is a residential area. He also could not recollect if lights of the house or of the shop was on or off.
PW10 Satish Rana stated in his cross examination that he stayed at the spot for about two hours, but no one came at the shop during this time, except the wife of the accused. Wife of the accused, according to the witness, reached the shop at about 10.15 a.m. According to the version of prosecution PW8 was member of party, which even visited the shop. If the landlord had not been called to the place, the witness was expected to categorically deny this fact. He could not simply display ignorance by saying that he did not know if the landlord was called. As noticed above, PW8 displayed ignorance regarding aforesaid other facts as well i.e. if the area, where the shop is situated is a residential area; if anyone from the nearby house was called to the place of recovery. Had he been present at the shop, PW8 was expected to give specific answers to these questions. Ignorance displayed by this witness about these facts creates doubt regarding his presence at given time at the shop of accused i.e. upto 10.30 pm. Doubt regarding search of shop of accused
14. Case of the prosecution is that when the party headed by SI Sunil reached the shop of the accused, it was found shut with its shutter down. According to PW SI Sunil Jain, when they reached the shop of the accused FIR No. 75/2006 25 at 8.30 p.m. its shutter was found down and that it is the accused who opened the shop.
To the same effect are statements of PW8 Ct. Parveen and PW10 SI Satish Rana.
But there is nothing in the statements of prosecution witnesses to suggest if the shop was actually lying closed or that the same was opened by the accused with the help of keys. If the prosecution wants the court to believe that shop was lying unlocked, with only shutter down, same cannot be accepted, the reason being with such heavy quantity of alleged contraband lying in the shop no person would leave the shop only with shutter down without locking it. If the shutter had been locked, it was for the prosecution to explain as to from where the keys were got or as to how the shop was unlocked . It is not case of the prosecution that accused was having the keys. Had the accused been in possession of the keys of the shutter, SI Sunil Jain must have recovered the same from his personal search conducted at the very first place i.e. in front of Novelty Cinema. Personal search memo Ex.PW7/C does not reveal that any key or bunch of the keys was recovered from the possession of the accused at the time of his personal search. All this creates doubt in the version of prosecution about recovery of contraband items from the said shop.
Even otherwise SI Sunil Jain is alleged to have left the police station and reached in front of Novelty Cinema at abut 5.00 p.m. According to PW10 SI Satish Rana, SI Sunil Jain reached the spot at about 5.30 p.m. The party is alleged to have reached the shop at about 8.30 p.m. as per statement of SI Sunil Jain. In this way, a period of 3 hours is FIR No. 75/2006 26 alleged to have been spent by the party at the place in front of Novelty even after arrival of SI Sunil Jain. In the given situation, it was for the prosecution to explain as to which proceedings were conducted during this period. According to PW7 SI Sunil Jain, on reaching the spot he took over all the documents from SI Satish Rana, prepared rough site plan of the place of recovery, recorded statement of Ct. Parveen, prepared personal search and arrest memo of the accused and also recorded disclosure statement of the accused. All these proceedings could not consume three hours. Even otherwise, in view of disclosure statement attributed to the accused, police would have opted to rush to the shop without wastage of any time. So, when the prosecution has failed to explain as to what made them to reach the shop at 8.30 p.m. when SI Sunil Jain had reached the spot at 5.30 p.m, prosecution version further becomes doubtful.
Non compliance with provisions of Section 42 before conducting search at the shop.
15. Section 42 (2) provides that where an officer takes down any information in writing under subsection(1) or records grounds for his belief under the proviso thereto, he shall within seventytwo hours send a copy thereof of his immediate official superior.
Before conducting raid at the shop of the accused, SI Sunil Jain should have informed his senior officers. However, a perusal of file would reveal that herein SI Sunil Jain did not send any information to his senior officers about disclosure made by the accused having kept at his shop contraband, as is available in his disclosure statement Ex.PW7/E. Non compliance with provisions of Sec.42(2) of the Act, therefore adversely FIR No. 75/2006 27 affects the prosecution.
Sec.100(4) Cr.P.C. provides that before making a search under Chapter - VII the officer or other person about the make, it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
SI Sunil Jain is stated to have conducted all the proceedings at the shop in absence of any independent and respectable inhabitant of the locality. There is nothing in the statement of SI Sunil Jain that he made any effort to join any independent and respectable inhabitant of the locality before conducting search at the shop. Had any such person refused to join the party, SI Sunil could issue orders to such a person in writing as provided U/s 100 (4) Cr.P.C. However, SI Sunil did not issue any such orders to any such witness.
Sec.100 (5) Cr.P.C. reads as under : "The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it." Herein as per prosecution, the seizure memo is alleged to have been attested by SI Satish Rana and Ct. Parveen Kumar. As noticed above U/s 100 (5) Cr.P.C. list of things which are seized in the course of search of shop is required to be attested by independent and respectable inhabitants of FIR No. 75/2006 28 the locality. So there is noncompliance even with provisions of Section 100(5) Cr.P.C.
Delay in despatch of sample to FSL
16. In this case recovery of contraband is alleged to have been made on 19.08.06 but the samples were sent to the office of FSL on 04.09.06. Learned defence counsel has contented that prosecution has failed to explain delay in dispatch of samples FSL and as such, adverse inference be drawn against the prosecution.
In State of Punjab vs. Lakhwinder Singh and Another (2010) 402, while dealing with the point regarding delay in dispatch of sample to laboratory, it has been held as under : "20. We may at this stage refer to a decision of this Court in Hardip Singh v. State of Punjab (2008) 8 SCC 557 in which there was delay of about 40 days in sending the sample to the laboratory after the same was seized. IN the said decision, it was held that in view of cogent and reliable evidence that the opium was seized and sealed and that the samples were intact till they were handed over to the chemical examiner, the delay itself was held to be not fatal to the prosecution case. In our considered opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case in this regard." As noticed above, samples are stated to have been drawn on 19.08.06. As per report Ex.PX samples reached the office of FSL on 04.09.06. It was for the prosecution to explain delay during the period from 20.08.06 to 03.09.06 or in other words, to explain as to why the samples were not sent to FSL prior to 04.09.06.
There is no explanation from the side of prosecution as to why the FIR No. 75/2006 29 samples were kept in malkhana for such long period. Having regard to the decision in State of Punjab's case (Supra), this court finds that prosecution has failed to rule out possibility of tampering with the samples during the period the same remained at malkhana, particularly when in register No.19 there is no mention about deposit of copy of seizure memo by the SHO with the MHC at the police station.
Defence Plea
17. As noticed above, it is in defence plea of accused that he was picked up from his shop; that on the way his son (DW1) was forced to accompany them when he insisted his query as to why he was being taken away; and that on payment of Rs. 3 lacs, his son was let off but he was implicated in this case.
DW1 Sharat Mittal is son of the accused. According to DW1, on 19.08.06 his father opened the shop where he used to sell chemicals. According to the witness, he too reached the shop at about 11.00 a.m. At about 1.00 p.m., he went to the shop of a tailor to get his clothes stitched in another street. After about 15 minutes, while he was returning to his shop, he saw his father being taken away by 34 persons who were ultimately found to be police personnel. He asked from his father as to what was the matter and his father told him that police persons had come to his shop and asked him to accompany them to PS Shakarpur. Police personnel also told that they were taking him to PS Shakarpur. Further, according to witness, since he insisted to tell them the reason, police asked him to accompany them. Then both of them were taken to a place where a car was standing. They were asked to sit in the car. The car started. At a distance of about FIR No. 75/2006 30 200 - 300 mtrs., another police gypsy was found present. Both the vehicles started moving together and ultimately they reached the police station.
According to witness, on reaching the police station at about 2.00 pm he was separated from his father and made to sit in a room on the third floor. One or 1 ½ hour thereafter a police official brought his father to his room. At that time, his father told that they were making a demand of Rs. 10 lacs and that only then they would release both of them.
DW1 further stated that he expressed inability to arrange for this huge amount. So his father was taken away. Next time, when his father was brought to him after some time, his father told him about demand of Rs.4 lac for his release (of DW1). At about 9.00 p.m. police official brought him down to the place where his mother was present and released him. On the way, his mother told the witness that she had paid a sum of Rs. 3 lac by mortgaging her jewellery.
When we advert to the defence plea put forth by the accused in his statement U/s 313 Cr.P.C, it finds mention therein that initially, three police persons had come to the adjoining shop of the accused and it was for the first time that police had come to the shop of the accused. If we go by this statement of DW1 Sharad Mittal that he had reached the shop on 19.08.06 at 11.00 a.m. and left the shop for a tailor's shop about 1.00 p.m., then DW1 should have also stated about arrival of police initially at the adjoining shop. But he has nowhere deposed about this fact. Even the occupant of the adjoining shop, being run under the name and style 'Aggarwal Chemicals', has not been examined.
As per defence plea put forth by the accused, at the time police FIR No. 75/2006 31 reached the shop, police people were accompanied by two persons. However, DW1 Sharad Mittal has nowhere deposed at that at the time his father was being taken away, police was accompanying by any other person.
The defence plea put forth by the accused and the version put forth by DW1 that he was asked to accompany the police only because he insisted them to tell him as to why his father was being taken away, is not believable. In such a situation Sharad Mittal could raise hue and cry while his father was being taken away through the market in broad day light. However, there is nothing on record to suggest that Sharad Mittal raised any such hue and cry. Even otherwise as noticed above, the information alleged to have been received by the police was that the accused and his son would b e coming to part with heavy quantity of contraband and in such a situation police could easily implicate Sharad Mittal in such like case. However, the fact remains that Sharad Mittal was not arrayed as an accused.
As regards, offer of Rs.10 lacs put forth by the accused in defence plea and subsequent, offer of Rs.4 lac, defence plea is not believable. For nothing question of payment of money by anyone does not arises. They would have rather taken up the stand that they were going to pay nothing as they were not involved in commission of any crime. But herein, as noticed above, the accused is alleged to have succumbed to pressure of police and got made payment of Rs.3 lac although according to them, nothing wrong was done by them. This improbablizes the defence plea put forth by the accused and the version put forth by DW1 and DW2.
FIR No. 75/2006 32
Statement of Smt. Sunita Mittal DW2
18. DW2 Smt. Sunita Mittal stated that on 19.08.2006, her husband and son had gone to their shop. At about 6.45 pm, she received a telephonic call from her husband from Narcotics Branch, Shakarpur that police officials had demanded Rs.10 lac for releasing him and their son. She further stated that her husband further told her that in case Rs.4 lac was paid at least, her son could be released by the police. She told her husband that she could tell him after some time, on consultations with her relatives.
According to DW2, she mortgaged her jewellery to a jeweller in the street, for Rs.3 lacs. After some time, she received phone call from her husband and she informed him that she had been able to make arrangement of Rs.3lac. Her husband told her that he would inform her after consulting the police officials as to where the payment was to be made and to whom.
After some time, her husband again made a call and told her that she had to go to Rajghat and police officials would come there to receive money. According to DW2, She stated that she reached Rajghat alongwith her daughter in her car. There she was asked by police officials to come out of the car and to make payment. Then she asked the police officials for consultation with her husband. She was then taken to a place where an Alto car was lying parked with her husband sitting on its rear seat in between two others. Then she paid a sum of Rs. 3 lacs to the police personnel present there. Those police officials assured release of her son.
Further according to DW2, after payment of the money, she followed police officials in her car upto the police station and her son was released.
FIR No. 75/2006 33
She stated that she sent a complaint in this regard to Mr. Cheema but she did not receive any reply so far.
Statement of DW4 Sh. Sanjay Verma
19. DW4 Sh. Sanjay Verma is alleged to have lent a sum of Rs. 2,90,000/ to wife of the accused on 19.08.2006. According to DW4 that on 19.08.2006 at about 6.30 pm, he received a telephone call from the wife of the accused. She needed Rs. 3Lacs immediately. According to the witness, he asked her to wait for 1015 minutes for his response. Ultimately, he told her that he would be able to pay her Rs.2,90,000/ against jewellery. Thereupon, Smt. Sunita Mittal brought jewellery weighing 410 grams and he paid her Rs.2,90,000/ in cash. The witness has proved Ex DW4/B i.e. the receipt in respect of payment of this amount. As agreed, interest at the rate of 1.5 % per month was to be paid. It is also in his statement that since Smt. Sunita Mittal could not repay the amount within the stipulated period of six months, she sold the jewellery mortgaged with him and that is how the principal amount and the interest were adjusted. According to the witness, this transaction depicted by him in the income tax return. DW4 has placed on record Ex DW4/C original statement of tax account for the year 2007. Copy of balance sheet for the year 2007, is Ex DW4/D. This document depicts advancement of loan of Rs.2,90,000/ to Smt. Sunita Mittal.
From Ex DW4/B, it stands established that Smt. Sunita Mittal borrowed a sum of Rs.2,90,000/ from DW4 on 19.08.2006. But it is significant to note that as per defence plea DW2 Smt. Sunita Mittal has FIR No. 75/2006 34 nowhere stated as to who were the police officials to whom she made payment of Rs.3 lacs on 19.08.2006. According to DW2, as noticed above, she had made payment of this amount to police officials near Rajghat when her husband was also brought there by the police. However, in his defence plea, the accused nowhere stated that he was taken by any police official from the police station Narcotics Branch to any place near Rajghat or that his wife confirmed from him at that place before making payment to police officials. Actually, accused nowhere pleaded that payment of Rs.3 lacs was made by his wife to police officials in his presence at a place near Rajghat.
DW3 Sh. Uttam Lal was working as a driver with the accused. According to DW3 on 19.08.2006, he took the accused to his shop in is car, parked the car in the parking place as usual and waited for him till 6/6.30pm but he did not reach there and as such he went to the shop to inquire. Further according to the witness, he found the shutter of the shop down but not locked and learnt from the neighbours that police had come and taken the accused along. Thereupon he parked the car in Ram Lila ground and went to the house of the accused to tell his wife. Further according to DW3, after sometime wife of the accused came to him and directed him to take her to Rajghat near Delhi Gate. On the way she was talking on her phone. On reaching near the corner of Rajghat another vehicle came by their side and went towards ITO. As directed by the wife of the accused, he followed the said vehicle and stopped it, when the said vehicle stopped ahead. Further according to the witness, wife of the accused then inquired about her son and gave a bag containing money i.e. Rs.3 lacs. The witness went onto state that police people were in the said FIR No. 75/2006 35 vehicle who had collected the bag containing Rs.3 lacs.
It may be mentioned here that there is nothing in the statement of DW3 as to the identity of the police officials who are alleged to have collected this bag from Smt. Sunita Mittal. The witness also did not state anywhere that accused was present in other vehicle or that Smt. Sunita Mittal had talked to him before making payment of Rs.3 lacs.
In views of the above discussion, this Court again finds it difficult to believe that Smt. Sunita Mittal paid a sum of Rs.3 lacs to police officials in connection with release of her son or in connection with present case.
The other defence plea put forth by the accused is that one property dealer had asked him that he should sell his house to him and they wanted a settlement for which he had refused. Property dealer threatened me that he would see him later on; that person had thick relations with police, therefore, in connivance with them, they got this case concocted against him.
It may mentioned here that in this regard accused has not led any defence evidence to substantiate the same. Even in the prosecution evidence there is nothing to probablize this defence plea. Therefore, the same does not stand established.
Conclusion
20. In view of the above discussion, when the prosecution has failed to establish compliance with provisions of Section 42 and 50 of NDPS Act and Section 100 (4) and (5) CrPC, no independent witness was associated during investigation despite opportunity and there are material FIR No. 75/2006 36 contradictions in the statement of prosecution witnesses, in view of the law laid down by the Hon'ble Apex Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 Supreme Court Cases 609 on the point of illegality in effecting recoveries, this Court finds that prosecution has not been able to substantiate the accusation levelled against the accused. Consequently, the accused is acquitted in this case.
Case property be disposed of in accordance with rules on expiry of period for appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 25.11.2011 (Narinder Kumar )
Special Judge(Central)
Delhi.
FIR No. 75/2006 37