Delhi District Court
State vs . 1. Babatunde Banji on 18 May, 2013
SC No. 3/10
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 03/10
ID No. 02403R0064662010
FIR No. 60/09
PS Special Cell
u/s 21 and 29 of NDPS Act
State Vs. 1. Babatunde Banji
S/o Sh. Banji
R/o 103, Ashikui Street,
Lagos, Nigeria
2. Aka Felician
S/o N'Dri
R/o WZ15E, Street No.11,
Krishna Puri, Tilak Nagar
New Delhi
Date of Institution : 22.02.2010
Judgment reserved on : 03.05.2013
Date of pronouncement : 18.05.2013
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21 r/w section 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act").
FIR No.60/09, PS Special Cell Page 1 of 42 SC No. 3/10
2. Briefly stated the allegations against the accused persons as contained in the chargesheet and as deposed by the prosecution witnesses are as follows:
(a) On 22.09.2009 at 02.15 PM, Inspector Devender Singh received a secret information that one Nigerian namely Babatunde would be coming near NBCC building, Lodhi Road at about 04.3005.00 PM and that if a raid is conducted, huge quantity of heroin can be recovered from him.
(b) The said information was reduced into writing vide DD No.13 by Inspector Devender Singh and and copy of the same was handed over to Sh. L.N. Rao, ACP/SR and facts of the information were also discussed with him. The said ACP then directed that necessary action be taken and therefore a raiding team comprising of Inspector Devender Singh, Inspector Satinder Sangwan, HC Balraj Singh, HC Devender Kumar and Ct. Rajesh Kumar, was constituted and the said team alongwith the secret informer left at about 02.55 PM for the spot in a govt. gypsy.
(c) On the way to the spot at Ashram Hari Nagar, IO Inspector Devender Singh requested 56 passersby to join the raiding team but none of them agreed to do so. On reaching the spot at about 03.30 PM also, IO Inspector Devender Singh requested 45 persons to join the raiding team but none of them agreed to do so. The members of the raiding team then positioned themselves near the spot and IO Inspector Devender took FIR No.60/09, PS Special Cell Page 2 of 42 SC No. 3/10 position alongwith the informer between the vehicles parked in front of NBCC.
(d) At about 04.45 PM, one middle aged, bald Nigerian came from Nizamuddin and stood under a Neem tree in front of NBCC and started waiting for someone and the said person was identified as the suspect Babatunde by the secret informer. After waiting for 0810 minutes, the said person started walking towards Safdarjung Tomb and at that point of time, he was cordoned by the raiding team. At that point of time also, some passersby were requested to join the investigations but none agreed.
(e) The IO introduced himself and the members of the raiding team to the suspect and on enquiry, the accused confirmed that his name was Babatunde Banji. Inspector Devender Singh disclosed the secret information to him and a notice u/s 50 of NDPS Act was given to him and he was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said right and wrote his refusal on the notice.
(f) Thereafter, HC Balraj Singh and Ct. Rajesh conducted the search of the accused and one packet was found hidden in the front side under the pant worn by the accused and his underwear. The said packet was found wrapped with the khaki colour tape and from inside the tape, one white polythene was recovered. The said packet was cut open from one side FIR No.60/09, PS Special Cell Page 3 of 42 SC No. 3/10 with the blade and some powder and granular substance was found inside it, which on testing with field testing kit, gave positive result for heroin.
The recovered heroin was weighed and its total weight came out to be 1.017 Kg. One sample of 60 gm was taken out from the recovered heroin and was put in a transparent polythene pouch and was converted into cloth pullanda which was then given Mark S1. The remaining heroin was also converted into a cloth pullanda and given Mark 'A'. Both the Pullandas were sealed by the IO with the seal of 'DSN'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared.
(g) The Rukka was prepared and was sent alongwith the two pullandas and form FSL through HC Balraj for registration of FIR. Further investigation was handed over to SI Anand Swaroop who came to the spot and prepared the site plan, arrested the accused and recorded his statement in which he inter alia disclosed that he is in the business of illicit trafficking of drugs/heroin and that a day before he had delivered one kg. Of heroin to one Aka Felician, who is resident of Krishnapuri.
(h) Accused Baba Tunde was then produced before SHO Rajender Sehrawat at PS Special Cell, Lodhi Colony and thereafter the accused along with the members of the raiding team reached New Friends Colony. Report u/s 57 NDPS Act pertaining to the arrest of accused Baba Tunde FIR No.60/09, PS Special Cell Page 4 of 42 SC No. 3/10 was submitted to the Reader of ACP. This accused was then produced before the Court and his police remand was taken. This accused thereafter in police custody led Inspector Anand Swaroop, Inspector Satender Sangwan, HC Balraj and Ct. Rakesh to house no. WZ 15E, Gali no. 11, Krishna Puri, Tilak Nagar, New Delhi where accused Aka Felician was found present. The said accused was then apprehended and was arrested and after his arrest on interrogation he made a disclosure that the drugs he had taken delivery of is lying in his house. Accused was then informed about his legal rights and was issued a notice u/s 50 of NDPS Act and was made to understand that he has a legal right that his house can be searched before the Magistrate or a Gazetted Officer. The accused refused to exercise the said right and wrote his refusal on the notice.
(i) The accused then took out a key from the drawer of TV trolley which was lying inside the room and opened the lock of the black colour bag which was lying near the TV trolley. On the bag "High tech mobile engineer baney" and some other words were written in English. On opening the bag, one orange colour polythene was taken out of it on which "lady chappal sale point" was found written. From the said orange colour polythene, one cream colour polythene bag having cream colour powder in it, was recovered. The said powder on testing with field testing kit, gave positive result for heroin. The recovered heroin was weighed and its total FIR No.60/09, PS Special Cell Page 5 of 42 SC No. 3/10 weight came out to be 1.014 Kg. One sample of 50 gm was taken out from the recovered heroin and was put in a transparent polythene pouch and was converted into cloth pullanda which was then given Mark S2. The remaining heroin was also converted into a cloth pullanda and given Mark 'B'. Both the Pullandas were sealed by the IO with the seal of 'AS'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared. IO also prepared the site plan.
(j) The case property was then deposited with the malkhana and statements of witnesses were recorded. During the course of investigation, the sample Pullanda of this case was sent to FSL, Rohini and after receiving the report from FSL, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed against the accused persons vide order dated 10.03.2009 for the offences punishable u/s 21(c) and section 29 of the NDPS Act.
4. In order to prove its case against the accused persons, the prosecution has examined 12 witnesses in all.
5. PW3A Inspector Devender Singh, PW5 Inspector Satender Sangwan and PW8 HC Balraj are members of the raiding team which had FIR No.60/09, PS Special Cell Page 6 of 42 SC No. 3/10 apprehended the accused Babatunde. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, DD No. 13 dated 22/9/2009, in which the secret information was reduced has been exhibited as Ex.PW3A/G. The notice issued to the accused Baba Tunde u/s 50 of the NDPS Act has been exhibited as Ex.PW3A/E and the refusal written on behalf of the accused on the said notice has been exhibited as ExPW3A/A at point 'X to X' . The seizure memo prepared with respect to the recovery of the heroin from accused Baba Tunde has been exhibited as Ex.PW3A/B. The tehrir prepared at the spot has been exhibited as Ex.PW3A/C.
6. PW1 SI Daler Singh has deposed that he is posted as SO ACP, Special Cell. As per the record produced by this witness, on 23/9/2009 reports u/s 57 NDPS Act, prepared by SI Anand Swaroop were received in the office of ACP regarding seizure of heroin and arrest of accused persons and that same reports were put before ACP. The reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW1/A to Ex.PW1/D.
7. PW2 Duty officer ASI Ved Prakash has interalia deposed that he was the duty officer on 22/9/2009 and that on this date he had received the rukka of the present case through HC Balraj and had registered the FIR, Ex.PW2/A. FIR No.60/09, PS Special Cell Page 7 of 42 SC No. 3/10
8. PW3 Sh. Sunil is the landlord of accused Aka and he has merely deposed that the ground floor of premises WZ15E, Krishna Puri, Gali No. 10, Tilak Nagar, New Delhi had been given on rent by him to accused Aka for a period of 11 months at a monthly rent of Rs.5000/ per month.
9. PW4 ASI Mathias Baxla has deposed that he was posted as MHC(M) at PS Special Cell on 22/9/2009 and that on this date, SHO of the said PS had deposited with him one sealed pullanda alongwith sample pullanda, both sealed with the seal of DSN and RSS and the said property was deposited by him in malkhana vide entry 1455, Ex.PW4/A. He has also deposed that on the same day SI Anand Swaroop had also deposited the articles of personal search of accused Baba Tunde Banji with him and he has proved the said entry at Sl. no. 1456 as Ex.PW4/B. According to his deposition, on 24/9/2009 SHO had deposited one bag having one pullanda and sample pullanda sealed with the seal of AS and RSS and the said property was deposited by him in malkhana vide entry 1457, Ex.PW4/C. He has also deposed that on the same day SI Anand Swaroop had also deposited the articles of personal search of accused Aka Felician with him and he has proved the said entry at Sl. no. 1458 as Ex.PW4/D. According to his deposition, on 21/10/2009 he had also sent the samples to FSL Rohini through Ct. Rajesh Kumar vide RC no. 131/21/09, Ex.PW4/E. FIR No.60/09, PS Special Cell Page 8 of 42 SC No. 3/10
10.PW6 Dr. Madhulika Sharma, Assistant Director, FSL, Rohini has proved the report prepared by her with respect to the analysis conducted by her of the samples sent to FSL. The said report has been exhibited as Ex. PW6/A and as per the said report, the samples mark S1 and S2 were found to contain caffeine, monoacetylmorphine, acetyl codeine and diacetylmorphine and the percentage of diacetylmorphine were found therein to be 49.1% and 30.13%.
11.PW7 ASI Anand Swaroop is the second investigating officer of the present case who has inter alia deposed that he had reached the spot on 22/9/2009 and on reaching the spot he had met Inspector Devender Kumar and Inspector Satender Sangwan who had produced before him the accused Baba Tunde and documents prepared by them. As per this witness he thereafter prepared the site plan Ex.PW3A/D and then interrogated the accused and thereafter recorded the disclosure statement of accused Baba Tunde Banji, Ex.PW5/C and also arrested him vide arrest memo, Ex.PW5/A. The report prepared by him u/s 57 NDPS Act has also been proved by him as Ex.PW1/A. This witness has further deposed that accused Baba Tunde led the police party to the House no. H.No. WZ15E, Gali NO. 11, Krishna Puri, Tilak Nagar where accused Aka Felician was found present. He has also deposed that he had prepared the notice u/s 50 NDPS Act and had served it upon the accused Aka. The said notice has FIR No.60/09, PS Special Cell Page 9 of 42 SC No. 3/10 been exhibited as Ex.PW7/A. He has also specifically deposed that accused Aka had refused to get himself searched before a Magistrate or a Gazetted Officer and the refusal asserted to have been given by the accused on the said notice has been exhibited as Ex.PW7/B. The seizure memo prepared with respect to the recovery of the heroin from accused Aka has been exhibited as Ex.PW5/G. As per this witness he prepared the site plan Ex.PW7/C. This witness has also proved the report prepared by him u/s 57 NDPS Act as Ex.PW1/B.
12.PW9 Ct. Rajesh Kumar has interalia deposed that on 21/10/2009 on the directions of IO, he had gone to PS Special Cell, Lodhi Colony and had taken pullandas mark S1 and S2 from MHC(M) vide RC no. 131/21/09 got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M). He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
13.PW10 Inspector R.S. Sehrawat has interalia deposed that on 22/9/2009, he was posted as SHO, PS Special Cell and on that day, HC Balraj produced before him, two pullandas, one FSL Form and carbon copy of seizure memo. As per the deposition of this witness, he put the FIR number, his initials and his seal 'RSS' on all the pullandas and the FSL form and then got the said property deposited in the Malkhana by ASI M. Baxla MHC(M). He has further deposed that on the intervening FIR No.60/09, PS Special Cell Page 10 of 42 SC No. 3/10 night of 23/24 September, 2009 SI Anand Swaroop produced before him, two pullandas, one FSL Form and carbon copy of seizure memo. As per the deposition of this witness, he put the FIR number, his initials and his seal 'RSS' on all the pullandas and the FSL form and then got the said property deposited in the Malkhana by ASI M. Baxla MHC(M) and lodged DD no. 11A in this regard.
14.PW11 Dr. Lingraj Sahoo, SSO Chemistry, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the samples sent to FSL by this Court. The said report has been exhibited as Ex. PW11/A and as per the said report, the samples Mark Ex.CSA and Ex.CSB were found to contain diacetylmorphine and the percentage of diacetylmorphine was found therein to be 2.96% and 4.96% respectively.
15.The entire aforementioned incriminating evidence was put to both the accused persons and their statements u/s 313 Cr.P.C were recorded. Both the accused persons in the said statements stated that they have been falsely implicated in this case and no drugs had been recovered from their possession or at their instance. Accused Baba Tunde in the said statement has inter alia stated that on 22/9/2009 while he was buying food items from the INA market, Delhi, 56 persons in plain clothes came and forcibly took him from the market to some police station where they kept continuously beating and slapping him. As per this accused the police FIR No.60/09, PS Special Cell Page 11 of 42 SC No. 3/10 officials then forced him to write some English words and also sign some documents. He has also stated that after 12 days of his apprehension the police officials brought Aka Felician, his coaccused to the PS and despite his telling that he had nothing to do with him the police officials kept on insisting that he and Aka were both involved in supplying of drugs. Similarly accused Aka Felician in his statement u/s 313 Cr.PC has stated that he did not know his coaccused Baba Tunde before his apprehension in this case and that on 24/9/2009 at about 9:00 PM five police officials in plain clothes had come to his tenanted premises and asked him whether he knew any James or Hazi and that despite his telling that he did not know the said person, they asked him to accompany them. As per this accused he was then taken to PS where he saw his coaccused Baba Tunde for the first time. He has also stated that police officials told him that if he writes as per their dictation they will let him go and that therefore he wrote something on documents and also signed certain documents as per the instructions of the police officials. No defence evidence has been led by the accused persons and after their statements u/s 313 CrPC was concluded, the case was fixed for final arguments. On 11/12/2012, an application was filed on behalf of accused Aka u/s 313 (5) CrPC stating therein that the accused had wrongly stated in his statement u/s 313 CrPC that he was apprehended on 22/2/2009 and that he wishes to submit before FIR No.60/09, PS Special Cell Page 12 of 42 SC No. 3/10 this court that he was arrested on 23/2/2009.
16.On behalf of both the accused persons written submissions have been filed on record and Ld. Defence Counsel Sh. Rahul Tyagi and Sh. Manish Khanna have advanced lengthy final arguments. Ld. APP Sh. R.K. Gurjar has also advanced arguments.
17.Ld. APP for the State has submitted that the deposition of the prosecution witnesses have more or less remained unrebutted with respect to the search and seizure proceedings and his contention therefore is that the prosecution has been able to prove beyond reasonable doubt that the contraband had been recovered from the accused persons.
18.Ld. Defence Counsel, Sh. Rahul Tyagi on behalf of accused Baba Tunde, has inter alia contended that the accused Baba Tunde is entitled to be acquitted for the evidence on record clearly proves that there has been tampering of the case property. He has pointed out that during trial the defence had pointed out to this Court that there was variation in colour of the contraband that was produced in the court. He has pointed out that though all the prosecution witnesses had deposed that cream colour powder had been recovered from accused Baba Tunde the case property when produced in court was not found of this colour and therefore this Court had directed that the case property be retested and that after the case property has been retested it has come on record that there is a huge FIR No.60/09, PS Special Cell Page 13 of 42 SC No. 3/10 variation in the percentage of the diacetylmorphine that was found in the original sample sent to FSL during investigation and the samples sent later on during trial by the court. Ld. Counsel Sh. Rahul Tyagi has pointed out that it has also been proved on record that the case property was not deposited with the Malkhana on the date of its alleged recovery and that the SHO had not affixed his seal on the date of its recovery. It has also been pointed out that the samples were not sent to the FSL for one entire month and that the prosecution has not been able to give any explanation whatsoever for the said delay. According to the Ld. Defence Counsel Sh. Rahul Tyagi the investigating officer had not made any efforts whatsoever to join the public witnesses in the entire proceedings and the circumstances pointed out by him shows that the case property has been tampered with. In support of his contentions, Ld. Counsel Sh. Tyagi has relied upon the following judgments:
● Rahul Saini Vs. State 2006 (3) JCC (Narcotics) 134 ● Union of India Vs. Bal Mukund (2009) 2JCC (Narcotics) 76 ● Rishi Dev Vs. State Crl. Appeal No. 757 of 2000 and CRL M(B) A.No. 799/2007 ● Chand Khan Vs. State 2000 Cri. L.J. 2645
19.Ld. Counsel Sh. Manish Khanna, on behalf of accused Aka, has inter alia contended that there has been a total non compliance of section 42 of the NDPS Act in as much as though as per the own case of the prosecution, FIR No.60/09, PS Special Cell Page 14 of 42 SC No. 3/10 Baba Tunde had assertedly disclosed to them on 22.09.2009 that he had delivered 1 Kg of heroin to accused Aka and that he can lead them to his residence, the said information was not reduced into writing nor was it relayed to any senior official in compliance of provisions of section 42 of the NDPS Act and the house of accused Aka allegedly raided in the night of 23.09.2009 without obtaining any search authorization warrant. His submission is therefore that this non compliance itself vitiates that entire search and seizure proceedings that were conducted at the house of accused Aka. It has also been pointed out by the Ld. Defence counsel that the recovery of contraband at the house of accused Aka is itself doubtful for despite the availability of public persons near the house of Aka, the main investigating officer has admitted that he did not join any independent witnesses in the said search. It has also been pointed out Ld. Defence counsel Sh. Manish Khanna that though as per the version of the prosecution, HC Balraj and Ct. Rajesh were also a part of the raiding team that had gone to the house of accused Aka, both the said witnesses have not deposed a word about the search at the house of accused Aka. Ld. Counsel has also contended that the entire case put forward by the prosecution is concocted and is a farce and that all the documents including the notices u/s 50 NDPS Act and the purported replies of the accused persons thereto were prepared by the police officials themselves FIR No.60/09, PS Special Cell Page 15 of 42 SC No. 3/10 and that is the reason the replies of the two accused persons to the notices u/s 50 NDPS Act is similarly worded. Ld. Counsel Sh. Khanna has also relied upon the variation in the two FSL reports to contend that the case property has been tampered with. In support of his contentions, Ld. Defence counsel Sh. Khanna has relied upon the following judgments:
● Karnail Singh Vs. State of Haryana 2009 SCC 887 ● Pandav Sarkar Vs. State of UP 2012 Cri. L.J 1855 ● Shyam Babu Vishwakarma & Anr. Vs. State of UP 2012(2) JCC (Narcotics) 43 ● James Eazy Franky Vs. DRI 2012(3) JCC (Narcotics) 81 ● State of Punjab Vs. Balbir Singh (1994) 3SCC 299 ● Tahir Vs. State of Delhi 2000 DLT (87) 207 ● Subhash Chand Vs. State of Rajasthan 2001 AD (SC) 17 ● Bharat Vs. State of Madhya Pradesh AIR 2003 SC 1433 ● Chander Pal Vs. State of Delhi 1998 DLT (75) 461 ● Prithvi Pal Singh Vs. State 2000(1) JCC (Delhi) 274 ● Munna Lal Vs. State 76 (1998) DLT 250 ● Jaivir Singh Vs. State of Delhi 57 (1995) DLT 479
20.In rebuttal, Ld. APP for State Sh. Gurjar has submitted that the absence of public witnesses in the raiding team is not a ground to doubt the prosecution's case when the testimony of the prosecution witnesses is otherwise credible. He has also contended that the lacuna pointed out by the Ld. Defence counsels in the link evidence produced by the prosecution is not sufficient to draw an inference that the case property has been tampered with. According to Ld. APP, mere delay in sending samples for FIR No.60/09, PS Special Cell Page 16 of 42 SC No. 3/10 analysis cannot be stated to have caused any prejudice to the accused persons as the seals on the sample tested by the FSL were found tallying with the seals found on the FSL form. It is also the contention of the Ld. APP that the provisions of section 42 NDPS Act have no applicability in the present case for the recovery of contraband from the house of accused Aka was not pursuant to the information given by Baba Tunde but was pursuant to the own disclosure statement given by accused Aka. In the alternative, he has also contended that the factum of arrest of accused Aka was duly intimated to the superior officer in due course of time and that therefore no prejudice can be stated to have been caused to accused Aka due to the non compliance of section 42 of the NDPS Act. In support of his contention, Ld. APP has relied upon the following judgments:
● Mohd. Anwar @ Annu Vs. State Crl. Appeal 2011 Crl. L.J. 2386 ● Ram Singh Vs. Central Bureau of Narcotics 2011 Crl. L.J. 3579 ● State of Haryana Vs. Sandeep Kumar 2009 Crl. L. J. 3507 ● Jarnail Singh Vs. State of Punjab 2011 Crl. L. J. 1738 ● Jamesh Albert Vs. State of H.P. 2011 Crl. L.J. 4654 ● Bilal Ahmed Vs. State Crl. Appeal No. 80/2001
21.I have considered the submissions made by the Ld. Counsels and have perused the record carefully.
22.The first and foremost circumstance that can be said to be proved on record is that no genuine efforts were made by the investigating officials to join independent witnesses in the recovery proceedings conducted with FIR No.60/09, PS Special Cell Page 17 of 42 SC No. 3/10 respect to both the accused persons. As regards accused Baba Tunde, he was allegedly apprehended in front of the NBCC building, Lodhi Road. However, despite availability of many office premises near the spot of the alleged apprehension of this accused, no effort whatsoever was made by the investigating officer to join the occupants of the said premises in the proceedings at the spot. The main investigating officer PW3(A) Inspector Devender Singh, in his crossexamination has admitted that there were offices of HUDCO, BHEL, SAIL situated very close to the spot and yet he did not ask anyone from these offices to join the raid. He has however not bothered to give the reasons as to why he did not make any such effort. As per the deposition of both this witness and PW5 Inspector Satender Sangwan, another senior member of the raiding team, the information to the Duty Officer about the search and seizure proceedings was given telephonically and the said call had been made by Satender Sangwan by using the telephone available at one of the offices near the spot (both these witnesses have stated that none of the team members were carrying any mobile phones). Now if this deposition of the two team members is taken to be correct and one of the investigating officers had thought it appropriate to go to one of the nearby offices to make a call, then it is not understandable as to why the occupants of the offices near the spot were not requested to join the proceedings. It is indeed very strange that though FIR No.60/09, PS Special Cell Page 18 of 42 SC No. 3/10 Inspector Devender Singh thought it necessary to ask passersby at Ashram (which was about 30 minutes driving distance away from the spot, as per the deposition of this witness) to join the raiding team, he did not think it necessary to ask the persons who were available in their offices very near the spot, to join the proceedings. Present is not a case where the investigating agency did not have sufficient time at their disposal to make the said effort. As per the deposition of the prosecution witnesses, they had reached the spot at 03.30 PM and the accused Baba Tunde was suspected to reach the spot only after 04.30 PM.
23.This court is constrained to observe that it has become a regular practice for the police officials of the Special Cell to depose in court casually that though they had made efforts to join passersby in the raiding team, none of the passersby agreed to join the proceedings and left the spot without disclosing their name and addresses. Despite a specific query by this court to the Ld. APP as to why the investigating agency only asks passersby to join the proceedings and does not make an effort to join in the proceedings, the occupants of residential premises or office premises near the spot of apprehension so, that at least both the investigating agency and the court are aware of the addresses of the persons who refused to accede to the request of a government public official, there is no explanation in this regard forthcoming from the prosecution. No doubt, FIR No.60/09, PS Special Cell Page 19 of 42 SC No. 3/10 one cannot argue with the contention of Ld. APP that public persons are hesitant to join police proceedings, but the least that is expected is that the investigating agency must be able to satisfy the court that genuine and sincere efforts were made by the investigating officer to make public persons join the proceedings. It will not be out of place to mention herein that in all of the Special Cell cases tried by this court, there is not a single case where the investigating officer has been able to join a public witness in the proceedings though in all NCB cases, the said investigating agency is able to make public witnesses join their investigation. Infact in the present case Inspector Devender Singh in his crossexamination has categorically admitted that ever since he has been posted in Special Cell and has been a member of the recovery team in about 10/20 cases, no public witness has been joined in the recovery proceedings and that the members of the raiding team never go to buildings, office, residence to approach the people available there to join the raid.
24.Even with respect to the alleged recovery made from the house of accused Aka, the deposition of the main investigating officer, PW7 SI Anand Swaroop, who assertedly conducted the search and seizure proceedings with respect to the said recovery, makes it clear that he did not think it at all necessary to join any available public independent witnesses before conducting the search of the accused Aka. The landlord FIR No.60/09, PS Special Cell Page 20 of 42 SC No. 3/10 of the house of accused Aka, PW3 Sunil in his crossexamination has categorically stated that though they lived on the second floor of the same house in which Aka was a tenant on the ground floor, they were not asked to join the search of the tenanted premises of accused Aka. On being questioned in this regard, PW7 in his deposition has brazenly stated that he had not asked anybody to join as independent witnesses before conducting the search of the house of accused Aka and that though he has been in the police force since 1994, he is not aware that according to the provisions of Cr.PC and in accordance with the guidelines laid down by Hon'ble Supreme Court, there is a requirement of joining independent public witnesses before the search of a house or before the arrest of an accused.
25.It has been repeatedly held by the higher courts that in such cases as the present one, the investigating agency must show that sincere efforts were made to join independent witnesses and that the investigating agency cannot merely take a stand that public witnesses refused to join the investigation. In this regard particular reference is made to the judgments reported as Ritesh Chakravarty Vs. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150, Anup Joshi Vs. State 1999(2) C.C. Cases 314, Roop Chand Vs. State of Haryana 1999(1) C.L.R 69. In Ritesh's case FIR No.60/09, PS Special Cell Page 21 of 42 SC No. 3/10 (supra), the Hon'ble Supreme Court has depreciated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on request of the police officials. In the other two judgments, it has been observed by the Hon'ble High Courts that the failure to proceed against the public persons who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence.
26.Apart from the failure of the prosecution to have satisfactorily explained the reasons for the nonjoining of independent witnesses in the alleged recovery proceedings, the second important attendant circumstance that has become apparent on record is that the prosecution has failed to prove that as long as the seized contraband remained in the malkhana, the same was not tampered with and what was sent to the FSL was what was recovered from the accused persons.
27.As per the own version of the prosecution, the contraband from the possession of accused Baba Tunde in the present case was allegedly seized on 22.09.2009 and the samples thereof were sent to FSL, Rohini only on 21.10.2009. In other words, there is a delay of a month in sending the samples for testing. Though, no doubt, it has been rightly contended by Ld. APP that if the said delay is explained satisfactorily by the FIR No.60/09, PS Special Cell Page 22 of 42 SC No. 3/10 prosecution and the prosecution is also able to show that the seized articles had been kept in proper custody during the period it was kept in the malkhana, the delay in sending the sample for testing would not be fatal to its case, the facts of the present case reveal that neither has the prosecution been able to prove that the delay in sending the sample was unintentional nor has it been able to prove that the seized articles had been kept in proper custody during the period it was kept in the office of Special Cell.
28.In a judgment pronounced by Hon'ble Delhi High Court in a case titled as Rishi Dev Vs. State Crl. Appeal No. 757 of 2000 and CRL M (B) A. No. 799/2007, the Hon'ble Delhi High Court after taking note of the fact that though the delay in sending a sample for testing is not per se fatal to the case of the prosecution, observed that the prosecution is however under a duty not only to explain the reasons for the delay but has also to show that the samples were kept in proper custody during the period they were deposited in malkhana and the time it was sent for testing. The Hon'ble Delhi High Court in para 19 of the said judgment categorically held that the trial courts must satisfy themselves that the investigating agency has strictly complied with the requirement that the sample should be sent for testing within 72 hours and if there has been a delay in the said regard, the investigating agency has been able to satisfactorily explain the FIR No.60/09, PS Special Cell Page 23 of 42 SC No. 3/10 said delay. The Hon'ble Delhi High Court has categorically held that the reasons for the insistence of such a compliance is that when a sample is kept in a police malkhana, under the seals of the police officials themselves, there is every possibility that the samples could be tampered and again resealed by the very same officials by again affixing the same seals and therefore to prevent the same, the legislature had thought it fit to lay down that the sample must be sent within 72 hours of its seizure. The Hon'ble Delhi High Court has reiterated the dicta laid down by Hon'ble Supreme Court in Valsala's case and observed that the prosecution is under a duty to show as to what happened during the period the seized article was kept in malkhana and before it was sent belatedly to the FSL laboratory. The Hon'ble Delhi High Court has also categorically held in para 14 of its judgment that no doubt trafficking of narcotic drugs is menace to the society but in the absence of satisfactory proof that what was seized from the appellant alone was sent to the Chemical Examiner, the Courts cannot convict an accused under the NDPS Act. Now, in the present case, there is not a word in the chargesheet filed for the reasons of the delay of one month in sending the samples for examination. Though PW7 SI Anand Swaroop in his crossexamination has tried to explain the said delay by deposing that as per instructions circulated amongst the officers of the Delhi Police, permission has to be taken from the Crime FIR No.60/09, PS Special Cell Page 24 of 42 SC No. 3/10 Branch before sending the samples to a particular lab and that in the present case the said permission was received only a day or two prior to the date before the samples were actually sent, the said witness has been unable to place the letter seeking permission, on record. Infact, on the other hand the defence has been able to prove that the said testimony made by the IO is incorrect. It has been pointed out by Ld. Defence counsel Sh. Rahul Tyagi that he had filed an application under the Right to Information Act with the Public Information Officer, Delhi Police Headquarters, ITO, New Delhi and had specifically sought information in writing as to whether any circular/instruction/order has been issued by the Delhi Police directing the IO not to send a sample of contraband seized under NDPS Act for testing to a particular lab, without prior permission of a superior officer and that in reply to the said application, he has been informed by the concerned PIO that there is no such circular issued. (The said application and the reply thereto has been placed on record). It has also been pointed out by Ld. Counsel Sh. Tyagi that infact the PIO has specifically informed him that Delhi Police follows that standing instructions no. 1/88 dated 15.03.1988 issued by NCB with respect to the drawing of samples seized under the NDPS Act and their subsequent storage, testing and disposal. The said instructions make it clear that a sample seized under the NDPS Act has to be sent to a forensic laboratory FIR No.60/09, PS Special Cell Page 25 of 42 SC No. 3/10 within 72 hours of the seizure.
29.Though Ld. APP Sh. Gurjar has then contended that the delay in sending the samples cannot be stated to have caused any prejudice to the accused persons as the seals on the sample tested by the FSL laboratory were found tallying with the seals found on the FSL form, the said fact loses much of its significance in view of the discussion hereinbelow which shows that the prosecution has failed to prove that the said seals were put on the pullandas on the date of their deposit in the malkhana. In this context, it becomes relevant to note the depositions made by PW8 HC Balraj Singh, PW10 Inspector R.S. Sehrawat and PW4 ASI M. Baxla. As per the deposition of PW8 HC Balraj Singh, he had been handed over at the spot by Inspector Devender Singh, sealed pullandas, FSL form, carbon copy of seizure memo and the rukka of this case and that he had handed over the case property along with documents to the SHO R.S. Sehrawat. Though this witness has not stated that on the deposit of the case property and documents with the SHO, the SHO R.S.Sehrawat had put his seals on the same in his presence, PW10 Inspector R.S. Sehrawat, the SHO has deposed that after HC Balraj had handed him two parcels mark A and S1 sealed with the seal of DSN, one FSL form and a carbon copy of seizure memo, he had put his seal of RSS on both the pullandas and the FSL form and had put his signature on the copy of the seizure memo and thereafter FIR No.60/09, PS Special Cell Page 26 of 42 SC No. 3/10 had handed over the same to the malkhana incharge ASI M. Baxla. However the documentary evidence namely the register no.19 produced by the prosecution witness PW4 ASI M. Baxla shows that in the relevant entry no. 1455, Ex.PW4/A there is no mention whatsoever that the pullandas deposited with the MHCM were bearing the seal of RSS. Though Ld. APP Sh. Gurjar has tried to contend that as a general practice, the MHCM merely copies the seizure memo in register no.19 and therefore there is no mention of the seal of SHO on the pullandas neither PW10 Inspector R.S. Sehrawat nor PW4 ASI Baxla have deposed with respect to the said practice. Both the witnesses were categorically confronted with Ex.PW4/A, the relevant entry of register no.19 and it was pointed out to them that there is no mention of the seal of RSS on the same. Yet despite this specific confrontation, both the witnesses did not furnish any such explanation for the same. On the other hand, ASI Baxla in his crossexamination has specifically deposed that he had made the entry no. 1455 truly and correctly after checking the seals affixed on the property handed over to him. Similarly, PW10 R.S. Sehrawat has stated in his crossexamination that he had checked the register 19 to verify the fact whether it has been mentioned that the pullandas deposited bear his seal of RSS or not and though he admits that the relevant entry does not reflect that his seal of RSS was mentioned therein and that the entry made by the FIR No.60/09, PS Special Cell Page 27 of 42 SC No. 3/10 MHCM was only as per the contents of the seizure memo, he does not give any reasons why he had not made the MHCM correct the entry after the asserted verification was done by him of the register. On the other hand, he has gone on to state in his cross examination that he had handed over the pullandas to the malkhana incharge but that the case property was not deposited in the malkhana in his presence. Thus, the documentary evidence produced by the prosecution and the statements made by MHCM and SHO concerned, in their crossexamination, show that there was no seal of RSS on the samples when the same were deposited in the malkhana on 22.09.2009. The said seal is however shown to be affixed on the samples on 21.10.2009 when the samples were sent to FSL. In such view of the matter, the tampering of the case property cannot be ruled out at all.
30.The aforementioned lacuna in the case of the prosecution also indicates that the provisions of section 55 of the NDPS Act have not been complied with by the investigating agency in the present case. As per the provisions of section 55 of the NDPS Act, an officer incharge of a police station is bound to take charge of and keep in safe custody, all articles seized under the NDPS Act.
31.In a case titled as Eza Val Okeke Vs. NCB reported in 2005(1) C.C. Cases (HC) 72, Hon'ble Delhi High Court after noting that the FIR No.60/09, PS Special Cell Page 28 of 42 SC No. 3/10 prosecution had not been able to prove that the contraband allegedly recovered from the accused was properly seized, properly preserved, acquitted the accused. In another case titled as Gurbaksh Singh Vs. State of Haryana 2001(3) SCC 28, the Hon'ble Supreme Court has held that though the provision of section 52 and 57 are directory and the violation of these provisions do not ifso facto violate the trial or conviction, the investigating agency cannot totally ignore these provisions and such failure will have a bearing on the appreciation of the evidence regarding arrest of accused and seizure of article. In another judgment titled as Valsala Vs. State of Kerala pronounced in 1993 SCC 665, after taking note that there is no evidence worth mentioning whether the articles were seized or sealed by the officer incharge, Hon'ble Supreme Court acquitted the accused by holding that it could not be held that the article seized from the accused were properly sealed and preserved and therefore were the same that were sent to the Chemical Examiner. The Hon'ble Supreme Court in the said case also clearly observed that though the provisions of section 52 of the NDPS Act are not mandatory, the prosecution has to lead satisfactory evidence to show what was seized was sent to the Chemical Examiner. Similarly, in another case titled as State of Rajasthan Vs. Daulat Ram AIR 1980 SC 1314, the Hon'ble Supreme FIR No.60/09, PS Special Cell Page 29 of 42 SC No. 3/10 Court held that it is the duty of the prosecution to prove that while in their custody, the sample was not tampered with before reaching the Chemical Analyst. In another recent case titled as Kuldeep Singh Vs State of Punjab reported in 2011 Cr. L. J. 2672 where the facts were inter alia that seized bags of contraband sealed at the spot were reopened at the police station for drawing out of samples, it was held by Hon'ble Supreme Court that the entire search and seizure procedure in such facts stands vitiated and the accused is liable to be acquitted. The Hon'ble Supreme court taking note that the case property once sealed was reopened held that the entire search and seizure proceedings stood vitiated. The said judgment though not applicable in the facts of the present case show the importance that the Apex court attaches to the procedures relating to search, seizure and proper custody of contraband in the cases being tried under the NDPS Act.
32.As narrated hereinabove, in the present case, not only has the prosecution failed to give any reason for the delay in sending the sample and for the non mentioning, on the sample pullandas, of the seal of SHO, in the malkhana register, there is also no cogent evidence produced on record to show as to in whose possession the seal DSN remained after its use at the spot. Though PW Devender Singh has deposed that he had handed over his seal of DSN after use to Satender Sangwan, this police official FIR No.60/09, PS Special Cell Page 30 of 42 SC No. 3/10 Sangwan has not uttered a word in his deposition that the seal was handed over after its use to him. The prosecution cannot be at all heard to contend that the aforementioned lapses have not caused any prejudice to the accused persons. The prejudice caused to the accused persons is apparent from the huge variation found in the two FSL reports filed on record. It is a matter of record that during trial, on applications made on behalf of the accused persons, fresh samples from the property produced in the Court were sent to FSL. As per the first FSL report on record the samples S1 and S2 received by the laboratory from the investigating agency were found to be cream coloured and the percentage of diacetylmorphine in the same were found to be 49.1% and 30.13% respectively. The second CFSL report which was prepared by the laboratory after the samples were sent to it by the Court mentions the colour of the two samples as brown and the percentage of diacetylmorphine was found to be only 2.96% and 4.96% respectively. In the considered opinion of this court the marked decrease in purity percentage and difference in colour clearly casts serious doubts about the fact whether the samples sent to the FSL for the first time was infact drawn out from the substances that was allegedly recovered from the accused persons. The tremendous variation in the percentage of diacetylmorphine cannot be simply explained away by mere passage of time, more so when the PW11 Dr. Lingraj Sahoo, the chemical examiner FIR No.60/09, PS Special Cell Page 31 of 42 SC No. 3/10 produced by the prosecution has fairly conceded before the Court that there is no literature published in India or to his knowledge which gives the time frame within which the kind of degradation seen in the present case would take place. In a case titled as Rahul Saini vs. State reported in 2006 (3) JCC (Narcotics) 134 the Hon'ble Delhi High Court while dealing with variation in the percentage of diacetylmorphine in the two tests performed by the concerned laboratory clearly held that a tremendous variation between the two tests cannot be explained away by mere passage of time.
33.In view of the discussion hereinabove, it is clear that the prosecution has miserably failed to prove that there has been no tampering of the case property. It would also be relevant to take note of another lapse committed by the investigating agency the evidence on record makes it clear that there has been a total non compliance of section 42 of the NDPS Act with respect to the search and seizure proceedings allegedly conducted by the investigating agency at the house of accused Aka. As per the case put forward by the prosecution itself, the raiding team consisting of Anand Swaroop, Satender Sangwan, HC Balraj and Ct. Rajesh Kumar had proceeded to the residence of accused Aka on 23/9/2009, pursuant to a disclosure made by the accused Baba Tunde that he had delivered 1 kg. of heroin to accused Aka on about 21/2/2009 and that he could lead the FIR No.60/09, PS Special Cell Page 32 of 42 SC No. 3/10 police officials to his residence. Now assuming that this disclosure was infact given by the accused Baba Tunde, there is no explanation forthcoming from the prosecution as to why in compliance of the provisions of Section 42 of the NDPS Act this asserted disclosure was not reduced into writing and put up before a senior official so as to obtain a search authorization warrant for the premises of accused Aka. It is not the submission of Ld. APP that the disclosure assertedly given by accused Baba Tunde was of a nature to which the provisions of Section 42 NDPS Act would not apply. The judgment of the Hon'ble Allahabad High Court in Shyam Babu's case (supra a judgment relied upon by Ld. Counsel Sh. Manish Khanna) infact makes it clear that provisions of Section 42 NDPS Act would squarely apply to an information given by an accused during investigation. It is also not the case of the prosecution that there was any paucity of time due to which the disclosure assertedly given by the accused Baba Tunde could not have been put up before a senior official and a search authorization obtained for the search of the house of accused Aka. As per the evidence led on behalf of the prosecution one disclosure statement of accused Baba Tunde was recorded on 22/9/2009 wherein it was inter alia disclosed by this accused that he had supplied 1 kg. of heroin to accused Aka a day before his apprehension. The said purported disclosure statement has been exhibited by PW7 SI Anand Swaroop in his FIR No.60/09, PS Special Cell Page 33 of 42 SC No. 3/10 deposition and the said witness in his crossexamination has admitted that in the said disclosure, the accused Baba Tunde had not disclosed that he knew where exactly the residence of accused Aka was or that he could lead the police team to the residence of Aka. This witness has further in his cross examination deposed that it was only in the evening of 23/9/2009, that the accused Baba Tunde had disclosed to him that he could lead the police officials to the house of accused Aka. It is the categorical admission made by this witness that he did not reduce the said purported disclosure given by accused Baba Tunde in writing in any document whatsoever or relay it to any senior officer. Though this witness has deposed that he had reduced the said fact in the case diary, obviously such a note made in the case diary cannot be stated to be a compliance of the provisions of Section 42 NDPS Act. Further no reasons whatsoever has been given by this investigating officer as to why this information given to him by accused Baba Tunde was not reduced into writing by him and what were the exceptional circumstance that he could not bring the said information to the notice of his senior officers. Further despite stating in his cross examination that the raiding team had reached the house of accused Aka only at 10:00 PM he has not given any reasons whatsoever as to why a search authorization warrant for searching the house of the accused Aka was not taken by him. Though Ld. APP for State has fairly FIR No.60/09, PS Special Cell Page 34 of 42 SC No. 3/10 conceded that the provision of Section 42 NDPS Act have not been followed by the investigating agency, his submission in this regard is that the factum of arrest of accused aka was duly intimated to the superior officers in due course of time and that therefore no prejudice can be stated to have been caused to the accused Aka. Suffice is to state that now it is well settled by judicial dicta that total non compliance of section 42 NDPS Act is absolutely impermissible. The Apex court of this country has reiterated more than once that though a late compliance with satisfactory explanation about the delay will be acceptable compliance of section 42, total non compliance of requirement of subsection (1) and (2) of section 42 is impermissible. Particular reference in this regard is made to the Supreme Court decision in Karnail Singh Vs. State of Haryana (Supra a judgment relied upon by the Ld. Defence Counsel). As discussed hereinabove, present is not a case where the prosecution has taken a stand that due to some special circumstances involving emergent situation, the information received from Baba Tunde could not be reduced into writing immediately and a copy therefore could not be sent to the superior officer and that the said acts were done subsequently within a reasonable period of the receiving of the said information. Present is a case where there has been a total non compliance of section 42 of the NDPS Act and therefore in the considered opinion of this court, the entire search and seizure FIR No.60/09, PS Special Cell Page 35 of 42 SC No. 3/10 proceedings allegedly conducted at the house of accused Aka stand vitiated.
34. It will also be relevant herein to state that very interestingly at one stage of arguments it was also sought to be contended on behalf of the State that since the heroin recovered in the house of accused Aka was not the same heroin about which the accused Baba Tunde had disclosed, the recovery of heroin from the house of the accused Aka does not stand vitiated for the non complained of Section 42 NDPS Act. It has been submitted by the Ld. APP that accused Aka had disclosed in his disclosure that the heroin supplied to him by Baba Tunde had already been disposed by him but that he can get recovered another 1 kg. of heroin which is lying hidden in his sofa cum bed and that infact pursuant to this disclosure the accused Aka did get 1 kg. of heroin recovered from a sofa cum bed lying in his house. The submission of Ld. APP therefore is that the heroin recovered from the house of accused Aka was not in pursuance of the disclosure made by accused Baba Tunde but it was infact made pursuant to the disclosure made by accused Aka after his arrest and therefore at that point of time there was no occasion for the investigating officials to have complied with the provisions of Section 42 of NDPS Act. It is the submission of the Ld APP that the part of the disclosure which led to the discovery of contraband is admissible in evidence as per the provisions of Section 27 of FIR No.60/09, PS Special Cell Page 36 of 42 SC No. 3/10 the Evidence Act and therefore the said piece of evidence alongwith the actual recovery is sufficient to hold Aka guilty of the offences that he has been charged with. The contention made by Ld. APP appears to be completely misplaced for the provisions of section 42 NDPS Act cannot be stated to be inapplicable in case an actual recovery is not made pursuant to the information of the nature referred to in section 42 NDPS Act. The said provision makes it very clear that whenever an authorized officer receives information that any contraband in respect to which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence, is kept or concealed in any building, conveyance or enclosed place, then the said information is to be reduced into writing and relayed to a superior officer. Now in the present case, the information given by accused Baba Tunde that he had delivered a day before, 1 Kg of heroin to accused Aka is an information which squarely falls within the provisions of this section and therefore it does not make any difference at all whether pursuant to that information some drug as disclosed by accused Baba Tunde were recovered from the house of accused Aka or some other drugs were recovered. It is indeed unfortunate that the investigating agency in the present case to cover up its own lapses is resorting to such contentions. In a case titled as Tahir Vs. State of Delhi 2000AD(Del)7294 the FIR No.60/09, PS Special Cell Page 37 of 42 SC No. 3/10 Hon'ble Delhi High Court while dealing with the admissibility of disclosure statements had made a telling observation"If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect." The said observations cannot be stated to be more suited than to the contention made on behalf of the State in the present case with respect to the disclosure statement asserted to have been given by the accused persons. The fact that the investigating officials have taken an absolutely incorrect stand with respect to the disclosures allegedly made by the accused persons is apparent from the application filed by the investigating officers seeking police custody of accused Baba Tunde. It is a matter of record in the said application, ExPW7/D1, police remand of accused Baba Tunde was sought by the investigating officer SI Anand Swaroop on the ground that this accused had disclosed that he used to procure drugs from one Haji and then further deliver it to his Nigerian counterparts in Delhi and that therefore the whole net work of the drug racket is to be unearthed. Very interestingly however in the purported disclosure statement given by accused Baba Tunde which has been exhibited as FIR No.60/09, PS Special Cell Page 38 of 42 SC No. 3/10 ExPW5/C there is absolutely no mention of any Haji it is inter alia stated in the said disclosure that accused Baba Tunde had disclosed that he used to procure drugs from one person Abdul Wahid @ Baba. There is no explanation forthcoming from the prosecution with respect to the said discrepancy in the application filed for seeking police remand and the purported disclosure statement given by accused Baba Tunde. In case the averments made in the application seeking police remand are taken to be correct then clearly an inference will have to be drawn that the disclosure Ex.PW5/C was written by PW SI Anand Swaroop according to his own convenience. In such view of the matter, when the investigating official PW7 SI Anand Swaroop could write the disclosure statement of accused Baba Tunde as per his own convenience, the purported disclosure of Aka being relied upon by Ld. APP to contend that the recovery made from the house of accused Aka is not hit by the non compliance of section 42 of the NDPS Act, can hardly be relied upon by this court. The testimony of this IO PW SI Anand Swaroop is otherwise also not free from doubt. Though this witness has deposed that on the intervening night of 22.09.200923.09.2009, he had returned alongwith accused Baba Tunde to PS Special Cell, Lodhi Colony at about 01.45 AM and had thereafter only deposited the personal search articles of accused Baba Tunde with the malkhana incharge, the MHCM PW4 M. Baxla in his crossexamination FIR No.60/09, PS Special Cell Page 39 of 42 SC No. 3/10 has categorically stated that SHO R.S. Sehrawat had handed over to him the case property i.e. the pullandas on 22.09.2009 between 09.00 PM to 10.00 PM and that he had made entry no. 1455 with respect to the same and thereafter SI Anand Swaroop had deposited the personal search articles of accused Baba Tunde 10 minutes thereafter and he had made entry no. 1456 with respect to the same. He has specifically stated in his crossexamination that in case SI Anand Swaroop would have deposited the personal search articles of accused Baba Tunde with him after 12 O'clock of the intervening night of 22.09.2009, he would have mentioned the date of entry no. 1456 as 23.09.2009. The deposition of this witness, and the documentary evidence produced by him does show that SI Anand Swaroop has not deposed correct facts before this court with respect to the time of apprehension of accused Baba Tunde. Not only this, though this witness had deposed that on the date of raid at the house of accused Aka, apart from Inspector Satender Sangwan, HC Balraj and Ct. Rajesh had also accompanied him, both HC Balraj and Ct. Rajesh have not uttered a word about them being witnesses to the search of the house of accused Aka.
35.In the considered opinion of this Court, the aforementioned facts and attendant circumstances that have come on record during trial of this case, raise a grave doubt on the veracity of the case of the prosecution and it is FIR No.60/09, PS Special Cell Page 40 of 42 SC No. 3/10 clear that in the present case, the investigating agency has not followed the statutory provisions of the NDPS Act and has not been able to prove its case beyond all reasonable doubt.
36.It has been repeatedly reiterated by the Hon'ble Supreme Court in its various judgments that it must be borne in mind that severer the punishment, greater has to be the care taken to be seen that the case of the prosecution is proved beyond all reasonable doubt. In State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed". The Apex Court in the case of Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. It has also been observed by the Hon'ble Supreme Court in the said case that though the standard of proof required to prove the guilt of the accused on the prosecution is 'beyond all reasonable doubt.' FIR No.60/09, PS Special Cell Page 41 of 42 SC No. 3/10
37.In view of the detailed discussion hereinabove, it is hereby held that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt and therefore the accused persons are hereby acquitted of the offences that they have been charged with. Announced in open Court on this 18th day of May, 2013 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No.60/09, PS Special Cell Page 42 of 42