Delhi District Court
State vs . Rakesh @ Guddu on 14 October, 2019
CNR No. DLCT0200482318
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT0200482318
CIS No. 1823/18
State Vs. Rakesh @ Guddu
FIR No. 165/17
PS : Nabi Karim
U/s. 27(a) NDPS Act
JUDGMENT
1) The date of commission of offence : 10.06.17
2) The name of the complainant : HC Ramji Lal
3) The name & parentage of accused : Rakesh @ Guddu S/o Sh. Het Ram R/o. Katra No. 7400, Gali Telmill, Nabi Karim, Paharganj, Delhi.
4) Offence complained of : u/s. 27(a) NDPS Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 14.10.2019 Date of Institution : 02.02.2018 Judgment reserved on : 14.10.2019 Judgment announced on : 14.10.2019 THE BRIEF REASONS FOR THE JUDGMENT:
CIS No. 1823/18, State Vs. Rakesh @ Guddu, FIR No. 165/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 1 / 10 CNR No. DLCT0200482318
1. The case of the prosecution against the accused is that on 10.06.17, at about 12.25 PM, near Dak Parcel Post Office, Nabi Karim, Delhi, within the jurisdiction of PS Nabi Karim, he was found consuming Diacetylmorphine in a small quantity. On the said allegations, accused was charged with the offence under Section 27 (a) of the NDPS Act.
2. After investigation, chargesheet was filed against the accused.
The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr. P.C. Thereafter, charge was framed against the accused under Section 27(a) NDPS Act, to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution has examined eight witnesses. Accused admitted as per section 294 Cr.PC, the FSL report no. FSL.2017/C5705 dated 22.09.17.
4. After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. The testimonies of prosecution witnesses are hereby discussed, in brief, as follows: CIS No. 1823/18, State Vs. Rakesh @ Guddu, FIR No. 165/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 2 / 10 CNR No. DLCT0200482318 6.1) PW1 ASI Wahid Ahmed deposed regarding depositing of sealed pullanda and FSL form in the Maalkhana by Inspector Yashpal Singh and proved the entry made in this regard in register no. 19 as Ex. PW1/A. PW1 further deposed that he had handed over the FSL form and the sealed pullanda to Ct. Jaiyan Kumar vide road certificate Ex. PW1/B for depositing the same to FSL Rohini. He also proved the acknowledgement receipt of FSL, Rohini as Ex. PW1/C. 6.2) PW2 HC Ramji Lal and PW5 Ct.Vikas deposed on the same lines that on 10.06.17, they were on patrolling duty in the area of PS and at about 12.15 PM, when they reached near abandoned plot, Parcel Gate, Near Dak Khana, they saw that a person is consuming smack at the said abandoned plot. Public persons were asked to join the proceedings but none agreed. The said person was apprehended, whose name was revealed as Rakesh @ Guddu. Notice u/s. 50 NDPS Act Ex. PW2/A was served upon the accused. Accused was searched and one panni pipe, one match stick box and burnt match sticks were recovered from his possession. The said panni pipe, one match stick box and burnt match sticks were seized vide memo Ex. PW2/B and sealed with the seal of BK. FSL form was filled. Site plan Ex. PW2/D and rukka Ex. PW2/C were prepared, FIR got registered and accused was arrested. They identified the accused and the case property CIS No. 1823/18, State Vs. Rakesh @ Guddu, FIR No. 165/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 3 / 10 CNR No. DLCT0200482318 Ex. P1 in the court.
6.3) PW3 Inspector Yashpal Singh, deposed that on 10.06.17, Ct. Vikas handed over him a sealed pullanda, duly sealed with the seal of BK, one FSL form and carbon copy of seizure memo. PW3 further deposed that he put the FIR number on the copy of seizure memo, pullanda and on FSL form. He also deposed that he put his seal of YPS on the pullanda and the FSL form and thereafter deposited the same in the Maalkhana. 6.4) PW4 Ct. Kanal Singh proved the information u/s. 57 NDPS Act received in the office of ACP as Ex. PW4/A. He also proved the relevant page of register mentioning the receiving of said information as Ex. PW4/B. 6.5) PW6 Ct. Jaiyan Kumar deposed that on 31.07.17, he received the exhibits i.e. FSL form and one sealed pullanda, duly sealed from Maalkhana vide RC No. 90/21/17 for depositing the same in FSL Rohini. He deposed that the case property remained intact till the same remained in his custody. 6.6) PW7 HC Ashwani Yadav proved the endorsement made on the rukka vide DD No. 25A as Ex. PW7/A, copy of the present FIR as Ex. PW7/B and the certificate u/s. 65 B Evidence Act as Ex. PW7/C. 6.7) PW8 ASI Sandeep deposed that on 10.06.17, further investigation of this case was marked to him, whereby Ct. Vikas CIS No. 1823/18, State Vs. Rakesh @ Guddu, FIR No. 165/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 4 / 10 CNR No. DLCT0200482318 handed him over the copy of FIR and original rukka. Thereafter, he alongwith Ct. Vikas went to the spot i.e. near abandoned plot, Parcel Gate, near Dak Khana, where he met with HC Ramji Lal and the accused. IO HC Ramji Lal handed over all the documents and accused to him. Accused was arrested and personally searched. He identified the accused and the case property in the court.
7. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8. Now, I consider the points contended by the Ld. Counsel for the accused one by one. Ld. Counsel for accused argued that no independent witness was joined in the investigation. First of all, I consider the legal position on this point. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and CIS No. 1823/18, State Vs. Rakesh @ Guddu, FIR No. 165/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 5 / 10 CNR No. DLCT0200482318 also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is wellsettled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied] Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witness with the recovery proceedings and thereafter in the proceedings qua the serving of notice u/s. 50 NDPS Act and thereon and to strictly comply with the provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to joined the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation. Hence, the abovementioned creates doubt on the case of the prosecution.
CIS No. 1823/18, State Vs. Rakesh @ Guddu, FIR No. 165/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 6 / 10 CNR No. DLCT0200482318
9. Further, the seal after use was not handed over to any independent person. Seal after use was handed over to Ct. Vikas. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. ..... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
Hence, considering the legal position, the benefit of doubt should be given to the accused.
10. Further, the case property was sent to FSL with the huge delay. The case property was deposited in the Maalkhana on 10.06.17, CIS No. 1823/18, State Vs. Rakesh @ Guddu, FIR No. 165/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 7 / 10 CNR No. DLCT0200482318 while the same was sent to FSL on 31.07.17. There is no explanation as to why the case property was kept in Maalkhana for more than one month. The persons whose seals were affixed on the case property were posted in the same police station and they had the custody of seal also. In these circumstances, the possibility of tempering with the case property cannot be ruled out.
11. Besides all this, the seizure memo of the case property Ex. PW2/B, bears the number of FIR. As per the rukka and testimony of witnesses, Ex. PW2/B was prepared prior to registration of FIR. If that be so then how Ex. PW2/B bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
12) The case of the prosecution is that the accused was consuming Diacetylmorphine, if that be so then the IO must have got done the medical examination of the accused immediately as to whether Diacetylmorphine was present in the blood / body of the CIS No. 1823/18, State Vs. Rakesh @ Guddu, FIR No. 165/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 8 / 10 CNR No. DLCT0200482318 accused or not. This could have been the best scientific evidence for the prosecution to prove its case but no such steps were taken by the investigating officer. This creates a gaping hole in the case of the prosecution.
13. In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held: "...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
14) The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of CIS No. 1823/18, State Vs. Rakesh @ Guddu, FIR No. 165/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 9 / 10 CNR No. DLCT0200482318 criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
15) In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Rakesh @ Guddu of the charges framed in the present case. Case property be confiscated to the State. Same be destroyed. File be consigned to Record Room subject to compliance of section 437A Cr.PC.
Digitally signed KAPIL by KAPIL KUMAR
KUMAR Date: 2019.10.14
15:56:07 +0530
Announced in the open court (KAPIL KUMAR)
on 14.10.2019 Metropolitan Magistrate05
Central District, Tis Hazari Courts/Delhi CIS No. 1823/18, State Vs. Rakesh @ Guddu, FIR No. 165/17, PS : Nabi Karim, U/s. 27(a) NDPS Act 10 / 10