Delhi District Court
State vs Mohsin on 27 July, 2024
IN THE COURT OF PUNEET PAHWA
SPECIAL JUDGE (NDPS)/NORTH EAST DISTRICT
KARKARDOOMA COURTS DELHI
SESSIONS CASE NO. 63/2018
CNR No. DLNE01-000654-2018
STATE Versus MOHSIN
S/o Mohd. Raheesh
R/o H. No. E-13/K-27
New Seelampur, Delhi
FIR No. : 634/2017
PS. : Seelampur
U/s. : 21 NDPS Act
Chargesheet Filed On : 22.2.2018
Judgment Reserved On : 20.7.2024
Judgment Announced On : 27.7.2024
Decision : Acquittal
JUDGMENT:
1. Case of the prosecution is that on 16.10.2017, SI Manoj Kumar alongwith HC Sushil, Ct. Anil and Ct. Sonu were on patrolling duty, vide DD No. 18A, in the area of Seelampur, Delhi. At about 8:10 PM, one secret informer met them, who informed that one person, who was standing near the school, New Seelampur, Delhi, was selling smack and if raid is conducted, the said boy can be apprehended with the illegal smack. SI Manoj Kumar reduced the said information on a white paper and sent the same to the SHO concerned through Ct. Anil for the purpose of compliance of notice u/s. 42 of NDPS Act with instruction to bring the electronic weighing machine. SC No. 63/2018 State Vs. Mohsin Page 1 of 48
2. At about 8:50 PM, Ct. Anil came at K-Block, New Seelampur, Delhi alongwith the electronic weighing machine. SI Manoj Kumar asked 4-5 public persons to join the proceedings, regarding the secret information, but, none agreed and left the spot without disclosing their names and addresses.
3. A raiding team was constituted. At about 9:00 PM, raiding team reached in front of the Govt. Boys/Girls Sr. Sec. School, Zero Pushta road, Gautampuri, Delhi, one boy was standing in front of the said school. The said boy was apprehended at the instance of secret informer. His name was revealed as Mohsin S/o Mohd. Raheesh. SI Manoj Kumar asked 4-5 public persons to join the proceedings, but, none agreed and left the spot without disclosing their names and addresses.
4. SI Manoj Kumar gave notice u/s 50 of Narcotics Drugs and Psychotropic Substances Act, 1985 ("NDPS Act") to Mohsin and informed that his search was to be conducted. The said person refused to be searched in presence of Magistrate or Gazetted Officer. On search of Mohsin, he was found carrying one transparent polythene in the right side pocket of his jean pant and on opening the same, it was found to be containing 40 pudias of white paper and on checking the same, brown colour powder was found in all the 40 pudias, which looked like smack. The SC No. 63/2018 State Vs. Mohsin Page 2 of 48 total weight of the smack (heroin) was found to be 6.05 grams. Sample of 2.05 grams was taken out of the material. Pullandas were prepared with seal of MKT. Pullandas were given serial numbers A1 and A2. Thereafter SI Manoj Kumar prepared rukka and got registered the FIR. Form FSL was also filled up. Case property and FSL form were handed over to SHO PS Seelampur. FIR was registered u/s 21 of NDPS Act. Thereafter investigation was conducted by SI Khagnesh Kumar.
5. SI Khagnesh Kumar conducted further investigation and prepared site plan at instance of SI Manoj Kumar. Accused was arrested and personally searched by SI Khagnesh Kumar. He recorded disclosure statement of the accused. Case property was deposited in malkhana. Sample of the recovered contraband was sent to FSL.
6. Chargesheet was filed against the accused u/s 21 NDPS Act. Later on FSL result was also placed on record.
7. Vide order dated 02.4.2018, charge u/s 21(b) of NDPS Act was framed against the accused. Accused pleaded not guilty and claimed trial.
8. Prosecution examined as many as 11 witnesses to prove the charge.
SC No. 63/2018 State Vs. Mohsin Page 3 of 48
9. Statement of accused u/s 313 CrPC was recorded. He denied all the incriminating circumstances. He stated that nothing was recovered from his possession and he was lifted from his house by two police officials on the pretext of some enquiry. Accused also examined two witnesses in his defence. PRE-RAID / RAID AND INVESTIGATION WITNESSES
10. PW-2 HC Sushil Kumar, PW-3 Ct. Anil Kumar and PW-4 Ct. Sonu Yadav were patrolling in the area when PW-9 SI Manoj Kumar received secret information.
11. PW-2 is HC Sushil Kumar, who deposed that on 16.10.2017, he alongwith SI Manoj Kumar, Ct. Anil and Ct. Sonu were on patrolling duty in the area of Division No. 1, vide DD No. 18A. At about 8:10 pm, when they reached K-Block Katta, New Seelam Pur, one secret informer came there and told SI Manoj that one boy was present in front of School at Zero Pushta Road, near K-Block Jhuggies, New Seelam Pur and that he was selling smack.
12. He has further deposed that on receipt of the said information, at about 8:20 pm, SI Manoj prepared notice u/s. 42 NDPS Act and gave the same to Ct. Anil and sent him to PS to hand over the same to the SHO Seelam Pur with directions to SC No. 63/2018 State Vs. Mohsin Page 4 of 48 bring the weighing machine. At about 8:50 pm, Ct. Anil came back at the spot. After that SI Manoj organized a raiding party consisting of the aforesaid staff. He asked 4-5 public persons to join the raiding party but none had agreed and left without telling their names and addresses after explaining their inability. After that SI Manoj took formal searches of the raiding team members and he (HC Sushil) took formal search of SI Manoj. Nothing incriminating was recovered from formal search of the raiding team members.
13. He has also deposed that at about 9:00 pm, they alongwith the secret informer left from there and reached in front of Govt. Boys/Girls Sr. Sec. School, Zero Pushta Road, Gautam Puri, Delhi, where on seeing a boy standing in front of the school, secret informer had pointed out towards him. At which, he was apprehended by the raiding team. After pointing out towards that boy, the secret informer had left from there. The said boy disclosed his name as Mohsin S/o Mohd. Raheesh i.e. accused, who was correctly identified by HC Sushil Kumar in the court.
14. He has further deposed that after apprehension of the accused, SI Manoj had asked 5-6 public persons to join the proceedings but none of them joined without disclosing their names and addresses. No notices could be served on those SC No. 63/2018 State Vs. Mohsin Page 5 of 48 persons due to paucity of time. After that SI Manoj told the accused that he was having information that he (Mohsin) was having smack, for which his search was to be conducted. Accused was further told that it was his legal right to get his search conducted in presence of any Gazetted Officer or any Magistrate.
15. He has further deposed that accused was also explained the meaning of Gazetted Officer and Magistrate and also explained that it was his legal right to get him searched before any Gazetted Officer or any Magistrate for which either he could be produced before the Gazetted Officer or the Magistrate or they may be called at the spot. SI Manoj had also told the accused that before his search, he can also search him and other accompanying police officials of the raiding team. Accused had refused to get him searched before any Gazetted Officer or any Magistrate. He also refused to search the police officials.
16. He has also deposed that SI Manoj served notice u/s. 50 NDPS Act to the accused. It was read over and explained to the accused. After going through the same, accused had told that he was illiterate and he could not write his refusal to get him searched before any Gazetted Officer or any Magistrate. Reply of the accused was written by SI Manoj and accused Mohsin had SC No. 63/2018 State Vs. Mohsin Page 6 of 48 put his LTI on his reply. He (HC Sushil Kumar) had also signed the said notice alongwith Ct. Anil and Ct. Sonu as witnesses.
17. He has further deposed that SI Manoj had conducted search of the accused at which one transparent polythene was recovered from the front left side pocket of jeans pant worn by the accused. The said polythene was checked at which 40 pudiyas /packets which contained brown colour powder which was smelling like smack. After removing the pudiyas, the polythene was weighed and it was about 40 gm. After that smack kept in all the 40 pudiyas were poured in the polythene. After that the smack kept in the polythene was weighed with the help of electronic weighing machine which contained 6.45 gm including the polythene. Out of which, the weight of the smack was 6.05 gm. All the empty papers of pudiyas were assembled in white tag. After mixing the entire smack, 2.05 gm smack was taken out as sample which was kept in a white transparent polythene and after keeping the same in a white transparent plastic dibbi and its pullanda prepared with the help of doctor tape.
18. He has further deposed that the remaining 4 gm smack was kept in the same polythene and it was also kept in a white transparent plastic dibbi. The 40 papers of the pudiyas were also kept in the said plastic dibbi and its pulanda was prepared SC No. 63/2018 State Vs. Mohsin Page 7 of 48 with the help of doctor tape. The pullanda of the sample and pullanda of remaining smack were sealed with the seal of MKT. The pullanda of the sample was given Mark A-1 and pullanda of the remaining smack was given Mark A-2. FSL form was also filled up by SI Manoj and seal of MKT was also affixed on the same. The aforesaid pullandas were taken into possession by SI Manoj, vide seizure memo Ex.PW2/A. Seal after use was handed over to Ct. Anil. Thereafter, SI Manoj had prepared rukka and gave the same to Ct. Anil alongwith aforesaid sealed pullandas, FSL form and copy of seizure memo with directions to produce the same before the same and to hand over the rukka to DO for registration of the case.
19. He has also deposed that after registration of the case, ASI Khagnesh Kumar had come at the spot alongwith Ct. Anil. Accused Mohsin was produced before him by SI Manoj. After that ASI Khagnesh had prepared site plan at the instance of SI Manoj and he was relieved. After that ASI Khagnesh had made inquiries from the accused and arrested him in this case, vide arrest memo Ex.PW2/B. His personal search was also conducted vide memo Ex.PW2/C. Rs.1200/- kept in black colour purse and notice u/s. 50 NDPS Act and one mobile phone make VIVO were recovered from his personal search. IO had also SC No. 63/2018 State Vs. Mohsin Page 8 of 48 recorded statement of accused, vide Ex.PW2/D.
20. He also identified his signature at point A on the carbon copy of the notice (Ex.PW2/E) which was served upon the accused before his search. He had also signed at point A on the reply of the accused made by him on the copy of the notice, vide Ex.PW2/F. He had also identified the case property i.e. the polythene with smack as Ex. P-1, 40 papers as Ex. P-2 (colly.) and sample brown powder/smack as Ex. P-3.
21. PW-2 was cross-examined by the Ld. Counsel for the accused. During his cross-examinatioin, he has deposed that on 16.10.2017, he was on duty since 8:00 am till 8:00 pm. He had voluntarily deposed that they had to stay back for extra time on account of emergency duty. They were doing patrolling duty on foot on that day. They all were in police uniform. They all were not carrying any official weapon. They had left PS at about 5:45 pm on that day.
22. He has further deposed that SI Manoj Kumar had lodged departure entry while leaving PS but he did not remember the DD entry thereof. They had reached Zero Pushta Road while patrolling through D-Block, C-Block, B-Block, Double Story, New Seelampur. Secret information was received near Khatta of SC No. 63/2018 State Vs. Mohsin Page 9 of 48 K-Block Jhuggies. Secret information was received by SI Manoj Kumar. After receipt of secret information, SI Manoj Kumar had prepared notice u/s. 42 NDPS Act and had handed over the same to Ct. Anil for handing over the same to SHO of PS Seelampur. Ct. Anil had returned back at about 8:50 pm.
23. He had further deposed that he had gone to PS in auto and had also returned back in auto. The distance between K- Block Jhuggies and PS Seelampur is about 600 meters. SI Manoj had also telephonically informed SHO PS Seelampur regarding the secret information received by him. He had admitted that public persons were passing through the said place and deposed that IO did not check IDs of 4-5 public persons, who were requested to join the raiding party due to paucity of time. Nothing incriminating or illicit article was recovered during the personal search of the raiding team and of SI Manoj.
24. He has further deposed that he alongwith SI Manoj, Ct. Anil and Ct. Sonu had overpowered the accused. SI Manoj had conducted search of accused. 5-6 public persons were requested to join the proceedings before conducting search of accused but none agreed and they all left by expressing their personal difficulties. Since it was going to be dark and public persons were in hurry to go, no written notice was served upon SC No. 63/2018 State Vs. Mohsin Page 10 of 48 them by the IO. Public persons were requested to join the proceedings before taking search of accused at about 9:00/9:30 pm. Ct. Anil had brought electronic weighing machine of grey colour.
25. He has further deposed that Ct. Anil had brought the weighing machine at about 8:50 pm on that day. Relevant DD entry vide which, they had left for patrolling duty on that day, was made in his presence and in said DD entry, the names of SI Manoj, Ct. Anil, Ct. Sonu and his name were mentioned.
26. He has denied the suggestion that the all four officials had not reached together at the spot. They all had signed the relevant documents, which were prepared by SI Manoj at the spot. No Magistrate or Gazetted Officer was requested to come to the spot as accused had refused to get himself searched in the presence of either of them despite being informed about his legal right in this regard. He has admitted that it was somewhat winter season on that day but he denied the suggestion that there was darkness at the spot. The writing work was done while sitting on bench lying outside the school gate. It took about 2-2¼ hours in doing the relevant proceedings by SI Manoj at the spot. They had finally left the spot at about 3:30 am. Ct. Anil had left with rukka at about 11:30 pm and he returned back alongwith original rukka SC No. 63/2018 State Vs. Mohsin Page 11 of 48 and copy of FIR to the spot at about 2:45 am.
27. He had further deposed that SI Manoj had handed over original rukka and sealed pullandas of seized contraband to Ct. Anil when he had left the spot for registration of FIR. Accused was got medically examined through Ct. Anil. He has denied the suggestion that no contraband item was recovered from accused, or that accused was lifted from his house by them. He has also denied the suggestion that the entire proceedings were conducted while sitting at PS or that no proceeding took place in his presence. He has also denied that he had signed all the relevant memos while sitting at PS at the instance of IO of the case, or that contraband item i.e. heroin was falsely planted upon accused by police officials, or that he was deposing falsely being police official.
28. PW-3 is Ct. Anil Kumar, who deposed that on 16.10.2017, he was posted as Constable at PS Seelampur, Delhi. On that day, he alongwith SI Manoj Kumar, Ct. Sonu and HC Sushil were on patrolling duty in the area of Division No. 1 vide DD No. 18A. At about 8:10 pm, when they reached K-Block Katta, New Seelam Pur, one secret informer came there and told SI Manoj Tomar that one boy was present in front of School at Zero Pushta Road, near K-Block Jhuggies, New Seelam Pur and SC No. 63/2018 State Vs. Mohsin Page 12 of 48 that he was selling smack. On receipt of the said information, at about 8:20 pm, SI Manoj prepared notice u/s. 42 NDPS Act and gave the same to him (Ct. Anil) and sent him to PS to hand over the same to the SHO Seelam Pur with directions to bring the weighing machine.
29. PW-3, further deposed that accordingly, he reached at PS Seelampur and gave notice u/s. 42 NDPS Act to the SHO and after taking electronic weighing machine, he again came back to SI Manoj at about 8:50 pm. After that SI Manoj organized a raiding party consisting of accompanying staff. SI Manoj asked 4-5 passersby to join the raiding party after briefing them about contents of the secret information but none of them agreed to join and they went away without telling their names or addresses. No notice was served upon them due to paucity of time. After that SI Manoj took formal search of the members of the raiding party but nothing incriminating was recovered from their search. HC Sushil had also conducted formal search of SI Manoj but nothing incriminating was found from him.
30. He further deposed that they left from there and reached Zero Pushta Road, K- Block, near Govt. Boys/Girls, Sr. Sec. School. At that time, on seeing a boy standing in front of the school, secret informer had pointed out towards him at which, he SC No. 63/2018 State Vs. Mohsin Page 13 of 48 was apprehended by them. After pointing out towards that boy, the secret informer had left from there. The said boy had revealed his name as Mohsin, who was correctly identified by the Ct. Anil in the court. Thereafter, SI Manoj had also asked 4-5 public persons, but this time also none had agreed to join and they left from there without disclosing their names and addresses.
31. He further deposed that after that SI Manoj told the accused Mohsin that he was having information that he (Mohsin) was having smack in his possession for which his search was to be conducted. Accused was further told that if he wanted, his search may be conducted in the presence of any Gazetted Officer or Magistrate for which they may be called at the spot. Accused was also told that it was his legal right. Accused was also informed about the meaning of Gazetted Officer and Magistrate. Accused had refused to call any Gazetted Officer or Magistrate for his search by either of them. At that time, SI Manoj had served notice u/s. 50 NDPS Act upon the accused. Accused had told that he was illiterate and he could not read and write. Notice was read over and explained to the accused. His refusal was recorded on the notice by SI Manoj on which accused had put his left thumb impression. Ct. Anil also signed the said notice.
32. He, PW-3 further deposed that after that SI Manoj SC No. 63/2018 State Vs. Mohsin Page 14 of 48 had conducted search upon the accused at which one white colour transparent polythene was recovered from the left side pocket of his pant. It was checked. 40 pudiyas of white colour paper were recovered from the polythene. The same were also opened and checked by SI Manoj which contained brown colour powder like material. On smelling, the said brown colour powder kept in pudiyas was found to be smack. The weight of the polythene was 40 gram. The smack kept in all the pudiyas were mixed and kept in the polythene. Thereafter, the polythene containing smack was weighed which was found to be 6.45 grams. In this manner, weight of the recovered smack was found to be 6.05 grams. After that 2.25 grams smack was taken out as sample which was kept in a transparent polythene and further kept in a transparent plastic dibbi and the said dibbi was closed with yellow colour lid. After using doctor tape, its pullanda was prepared. The remaining 4 gram smack kept in the polythene was kept in a separate plastic dibbi and 40 empty paper pudiyas were also kept in the said plastic dibbi and the said dibbi was closed with yellow colour lid. After using doctor tape, its pullanda was prepared.
33. He further deposed that both the pullandas were sealed by SI Manoj with seal of MKT. The pullanda of sample was given serial no. A-1 and pullanda of remaining smack was SC No. 63/2018 State Vs. Mohsin Page 15 of 48 given serial no. A-2. FSL form was also filled up by SI Manoj and seal of MKT was also affixed on it. Seal after use was handed over to Ct. Anil. The pullandas were taken into possession by SI Manoj and after that SI Manoj had prepared rukka and handed over the same to Ct. Anil alongwith both the sealed pullandas, copy of seizure memo and FSL form with directions to hand over the rukka to DO and produce both the pullandas, FSL form and seizure memo before the SHO. Accordingly, after reaching at the PS, he had produced rukka to the DO and both the pullandas, FSL form and seizure memo to the SHO. After registration of the case, investigation was marked to ASI Khagnesh Kumar. He alongwith ASI Khagnesh left the PS and reached at the spot where SI Manoj produced accused Mohsin before ASI Khagnesh.
34. He further deposed that ASI Khagnesh prepared site plan of the place of occurrence at the pointing out of SI Manoj and after interrogation, accused was arrested by ASI Khagnesh in this case and his personal search was also conducted vide memo Ex.PW2/C, whereon, Ct. Anil identified his signature at point B. During personal search, one black colour purse containing Rs.1200/-, one mobile phone make VIVO and original notice u/s. 50 NDPS Act were recovered. ASI Khagnesh had also recorded SC No. 63/2018 State Vs. Mohsin Page 16 of 48 disclosure statement of the accused. After arrest, accused was brought at the PS. From the PS, he was produced before the concerned court after conducting his medical examination. His statement was also recorded by the IO. He also identified his signature at point B on the copy of notice Ex.PW2/C, prepared by SI Manoj. He also identified his signature at points B on the reply of accused Ex.PW2/F on the notice and also on the seizure memo of smack Ex.PW2/A. He also identified the case property i.e. the polythene with smack as Ex. P-1, 40 papers as Ex. P-2 (colly.) and brown powder/smack which was taken out as sample as Ex.
35. PW-3 was cross-examined by Sh. Jagmohan Singh, Ld. Counsel for the accused. In his cross-examination, he has deposed that they had left the PS for patrolling at about 6:00 pm. No other police officials was with them. Departure entry for leaving the PS was made. They all were in uniform. SI Manoj was not having pistol with him. He and Ct. Sonu were armed with danda. HC Sushil was empty hand. First of all, they had patrolled in the area of D-Block fruit market and they remained there for about one hour. After that they left towards double Storey area, Seelampur. Secret informer had met them in K- Block, Seelampur at about 8:10 pm.
36. He further deposed in his cross-examination that he SC No. 63/2018 State Vs. Mohsin Page 17 of 48 had reached at the PS with notice u/s. 42 NDPS Act at about 8:30 pm. They had reached K-Block from D-Block Fruit market in a TSR. After that they started patrolling on foot. After handing over notice u/s. 42 NDPS Act to SHO, he left the PS and came back to SI Manoj. The colour of the electronic weighing machine was grey. He had collected the same from the IO room of SI Manoj which was kept in a wall almirah. He did not get record any DD entry in this regard. Even, he did not get record any arrival and departure entry.
37. In his cross-examination, he further deposed that public persons often used to pass through in front of the school. He admitted that after apprehension of the accused, some public persons had gathered at the spot. The public persons who were asked to join had disclosed their different problems for not joining the raid proceedings. SI Manoj had also telephonically informed the SHO about contents of secret information received by him. After arrest of the accused, they had come to the PS at about 3:45 am. He had reached at the PS with rukka alongwith both the pullandas and seizure memo at about 11:30 pm and he remained there for about 3 hours. He alongwith ASI Khagnesh had reached at the spot at about 2:45 am. He did not remember that as to who had signed on the site plan as witness. Only DD SC No. 63/2018 State Vs. Mohsin Page 18 of 48 No. 18A dt. 16.10.2017 u/s. 21 NDPS Act were mentioned by SI Manoj but FIR Number was not mentioned by him at the time of preparation of seizure memo Ex.PW2/A.
38. He further deposed that he had never joined investigation of an NDPS case earlier. SI Manoj had found that the recovered contraband was smack. It took about 5-7 minutes in weighing the recovered smack. SI Manoj had handed over copy of seizure memo, copy of notice u/s. 42 NDPS Act and copy of notice u/s. 50 NDPS Act to ASI Khagnesh. SI Manoj had left the spot prior to them. ASI Khagnesh recorded his statement at the spot. He did not remember as to who had taken the accused to hospital from the PS for medical examination, or at what time accused was brought back from the hospital. Accused was produced before the court at 11:00/12:00 am on 17.10.2017. He denied the suggestion that he had not joined investigation of this case, or that nothing was recovered from the possession of the accused in the manner as deposed by him, or that accused was not arrested from the spot, or that accused was lifted from his house. He also denied the suggestion that after bringing the accused to the PS from his house, the smack was planted upon him, or that all the documents were prepared by the IO while sitting in the PS, or that he was deposing falsely. SC No. 63/2018 State Vs. Mohsin Page 19 of 48
39. PW-4 is Ct. Sonu Yadav, who deposed on the similar lines so as PW-2 HC Sushil Kumar and PW-3 Ct. Anil, being the member of the raiding team. His testimony is not reproduced herein for the sake of brevity.
40. PW-9 is SI Manoj Kumar Tomar, who deposed that on 16.10.2017, he was posted as SI at PS Seelam Pur, Delhi. On that day, he alongwith HC Sushil Kumar, Ct. Anil and Ct. Sonu were on patrolling duty in the area of Division No. 1 vide DD No. 18A. At about 8:10 pm, when they reached K-Block Katta, New Seelam Pur, one secret informer came there and told him that one boy was present in front of School at Zero Pushta Road, Gautampuri near K-Block Jhuggies, New Seelam Pur and that he was selling smack. On receipt of the said information, at about 8:20 pm, he had prepared notice u/s. 42 NDPS Act and gave the same to Ct. Anil and sent him to PS to hand over the same to the SHO Seelam Pur with directions to bring the electronic weighing machine from his room.
41. He further deposed that at about 8:50 pm, Ct. Anil came back to them at K-Block Khatta, New Seelam Pur. After that he organized a raiding party consisting himself, HC Sushil, Ct. Anil and Ct. Sonu. Secret informer was also with them. He asked 4-5 public persons to join the raiding party but none had SC No. 63/2018 State Vs. Mohsin Page 20 of 48 agreed and left without telling their names and addresses after explaining their inability. After that he took formal searches of all team members and HC Sushil took his formal search. Nothing incriminating were recovered from their formal searches. At about 9:00 pm, they alongwith the secret informer left from there and reached in front of Govt. Boys/Girls Sr. Sec. School, Zero Pushta Road, Gautam Puri, Delhi, where on seeing a boy standing in front of the school, secret informer had pointed out towards him. After pointing out towards that boy, the secret informer had left from there. The said boy was apprehended by them and on enquiry, he disclosed his name as Mohsin S/o Mohd. Raheesh i.e. accused, who was correctly identified by SI Manoj in the court.
42. He further deposed that after apprehension of the accused, he had asked 5-6 public persons to join the proceedings but none of them joined and left without disclosing their names and addresses. No notices could be served on those persons due to paucity of time. After that he told the accused that they were having information that he (Mohsin) was having smack with him for which his search was to be conducted. Accused was further told that it was his legal right to get his search conducted in presence of any Gazetted Officer or any Magistrate. Accused was SC No. 63/2018 State Vs. Mohsin Page 21 of 48 also explained the meaning of Gazetted Officer and Magistrate and also explained that it was his legal right to get him searched before any Gazetted Officer or any Magistrate for which either he could be produced before the Gazetted Officer or the Magistrate or they may be called at the spot. He had also told the accused that before his search, he could also search him and other accompanying police officials of the raiding team. Accused had refused to get him searched before any Gazetted Officer or any Magistrate. He also refused to take their search.
43. PW-9 further deposed that he had served notice u/s. 50 NDPS Act Ex.PW2/E to the accused and he identified his signature at point D on the said notice. It was read over and explained to the accused. After going through the same, accused had told that he was illiterate and he could not write his refusal to get him searched before any Gazetted Officer or any Magistrate. Reply of the accused was written by SI Manoj Tomar and accused Mohsin had put his LTI on his reply. He also identified his signature at point D and LTI of the accused at point E on the reply Ex.PW2/F. He had conducted search of the accused at which one transparent polythene was recovered from the front left side pocket of jeans pant worn by the accused. The said polythene was checked and found containing some pudiyas SC No. 63/2018 State Vs. Mohsin Page 22 of 48 /packets. On counting, they were found 40 pudiyas/packets which contained brown colour powder which was smelling and looking like smack.
44. He further deposed that after removing the pudiyas, the polythene was weighed and it was about 0.40 gm and after that smack kept in all the 40 pudiyas were poured in the polythene. The smack kept in the polythene was weighed with the help of electronic weighing machine which contained 6.45 gm including the polythene. Out of which, the weight of the smack was 6.05 gm. All the empty papers of pudiyas were assembled in white tag. After mixing the entire smack, 2.05 gm smack was taken out as sample which was kept in a white transparent polythene and after keeping the same in a white transparent plastic dibbi and its pullanda was prepared with the help of doctor tape. The remaining smack was kept in the same polythene and it was also kept in a white transparent plastic dibbi. The 40 papers of the pudiyas were also kept in the said plastic dibbi and its pulanda was prepared with the help of doctor tape. The pullanda of the sample and pullanda of remaining smack were sealed with the seal of MKT. The pullanda of the sample was given Mark A-1 and pullanda of the remaining smack was given Mark A-2.
SC No. 63/2018 State Vs. Mohsin Page 23 of 48
45. He further deposed that he also filled FSL form and seal of MKT was also affixed on the same. The aforesaid pullandas were taken into possession by him, vide seizure memo Ex.PW2/A. Seal after use was handed over to Ct. Anil. He prepared rukka Ex.PW9/A and he gave the rukka to Ct. Anil alongwith aforesaid sealed pullandas, FSL form and carbon copy of seizure memo with directions to produce the same before the SHO and to hand over the rukka to DO for registration of the case. After registration of the case, ASI Khagnesh Kumar had come at the spot alongwith Ct. Anil. He produced accused Mohsin before ASI Khagnesh and also handed over carbon copy of notice u/s. 42 NDPS Act and carbon copy notice u/s. 50 NDPS Act and original seizure memo of recovered smack. After that ASI Khagnesh had prepared site plan Ex.PW9/B at his instance. Thereafter, he was relieved.
46. PW-9 also deposed that he prepared report u/s 57 NDPS Act Ex.PW10/B regarding search and seizure of contraband item i.e. smack from accused Mohsin and had handed over the same to Reader of the then SHO for getting it forwarded through concerned SHO to ACP Seelampur. He also lodged DD No. 18A dt. 16.10.17 in the rojnamcha while leaving alongwith other staff members from PS Seelampur for patrolling duty on SC No. 63/2018 State Vs. Mohsin Page 24 of 48 that day. Attested copy of thereof is Ex.PW9/C. He also identified the case property i.e. the polythene with its contents, as, Ex.P1, 40 papers as Ex.P2 (colly.) and brown powder/smack which was taken out as sample, as, Ex.P3.
47. PW-9 was also cross-examined by the Ld. Counsel for the accused. In his cross-examination, he deposed that DD No. 18A was lodged in rojnamcha by him in his own handwriting and same was lodged at 5:50 pm and it was duly mentioned therein that he alongwith HC Sushil, Ct. Anil, Ct. Sonu and Ct. Sandeep were leaving PS for patrolling duty and stated that the attested copy of DD No. 18A Ex.PW9/C is not in his handwriting.
48. He further deposed that after leaving PS Seelampur, they had first of all gone to D-Block. They all police officials were in official uniform. None of them was carrying any official arm or ammunition at that time. However, he was having IO bag containing relevant articles including white sheets, scale, etc. Ct. Anil and Ct. Sonu were carrying dandas/wooden sticks with them. He did not mention in DD No. 18A the factum of carrying of IO bag by him and factum of carrying of wooden sticks by Ct. Anil and Ct. Sonu. He denied the suggestion that he did not mention the same in DD No. 18A as neither he was carrying any SC No. 63/2018 State Vs. Mohsin Page 25 of 48 IO bag nor Ct. Anil and Ct. Sonu were carrying any dandas with them.
49. He further stated that they all were on foot, when they had left for patrolling duty. They did patrolling duty in D- Block for about 30 minutes or so and thereafter, they went to C- Block where, they did patrolling duty for about 20 minutes and then, they went to B-Block where, they performed the duty for about half an hour and then, they had gone to area of double storey. The place where secret informer had met him, was situated across the road and opposite area of double storey. The concerned SHO had telephonically issued directions to him for constituting the raiding party and to conduct the raid after, he received the report u/s 42 NDPS Act sent to him through Ct. Anil. He had handed over carbon copy of notice/report u/s 42 NDPS Act to IO ASI Khagnesh Kumar.
50. He further deposed that Ct. Anil had gone to PS Seelampur in TSR and had also returned back in TSR. The distance between PS and the place where raiding party was formed by him, was about 550-600 meters. He had prepared notice u/s 42 NDPS Act, while standing on the road in front of K- Block Khatta. Electronic weighing machine was present in his room on that day and same was not available in the malkhana of SC No. 63/2018 State Vs. Mohsin Page 26 of 48 PS. Said machine was being kept in his room for being used for different purposes as per the requirement. The weighing capacity of said machine was 250 gm. He did not remember if he had used the said weighing machine for any other purpose in any other case either before 16.10.17 or thereafter. The said machine was of grey colour but he did not remember its make. Said machine was his personal property but he had kept the same in his room at PS for being used for the purpose of investigation.
51. Further, PW-9 deposed that Ct. Sandeep had left for his other official duty from PS Seelampur after lodging DD No. 18A and that is why, he did not accompany them for the patrolling duty. He admitted that in DD No. 18A Ex.PW9/C, it is mentioned that all the police officials including Ct. Sandeep had left PS for patrolling duty in the area of Division No. 1 and there is no mention that Ct. Sandeep had left for some other official duty and had not accompanied them. He had not stated these facts even in his statement u/s 161 CrPC made before IO/ASI Khagnesh Kumar. He also admitted that many public persons were crossing the school at Zero Pusta, Gautam Puri, Delhi and that he requested 5-6 public persons to join the investigation at the spot. Firstly, he apprehended the accused at the spot. All the public persons were requested by him to join the investigation, SC No. 63/2018 State Vs. Mohsin Page 27 of 48 but they refused to join the investigation. No written notice was issued to any person, who refused to join investigation, nor their names were recorded. The disabilities shown by persons were not recorded. After apprehension of the accused, he searched him.
52. He further deposed that the pant worn by accused at the time was of blue colour. At the time of preparation of the raiding party, no Gazetted Officer or Magistrate were tried to be contacted. He admitted that at the time of search, any Gazetted Officer or Magistrate was not called at the spot. He remained at the spot for about 5 hours and 45 minutes. The polythene in which packets were found, was transparent. Notice u/s 50 NDPS Act, seizure memo and tehreer were prepared at the spot by him. He denied the suggestion that all these documents were prepared in the police station, or that accused was picked up by him from his house and has been put behind the bars.
53. He further deposed that IO/ASI Khagnesh Kumar reached at the spot at around 02:45 am on 17.10.2017 on foot. His statement was recorded by IO in police station at around 10:00 am. All the contents of the tehreer were not mentioned in that statement. He denied the suggestion that the said contents were not mentioned in the statement as the facts mentioned in the tehreer did not happen. IO prepared site plan at his instance. In SC No. 63/2018 State Vs. Mohsin Page 28 of 48 his presence, IO did not record statement of any other witness. He mentioned the FIR number on the seizure memo at the spot in his presence. He left the spot prior to IO. IO took his signatures on site plan. He also denied the suggestion that all the proceedings were conducted in the PS itself or that accused has been arrested in fabricated case and no recovery was effected from the person of accused, or that he was deposing falsely being police official.
EXPERT WITNESS
54. PW-6 is Sh. Shailendra Yadav, who deposed that he was working as Sr. Scientific Officer (Chemistry) at FSL, Delhi. On 30.10.2017, one sealed plastic box with sealed intact and tallied as per forwarding authorities specimen seals. He had examined the case property between the period 29.11.2017 to 20.12.2017. Parcel A-1 was having two seals of MKT and one seal of RA. The plastic container Mark A-1 was found containing light brownish coloured powdery material kept in a zip lock plastic pouch stated to be smack weight 3.84 grams approximately with zip lock plastic pouch.
55. He further deposed that on Chemical, TLC, GC & GC-MS examination, Exhibit A-1 was found to contain SC No. 63/2018 State Vs. Mohsin Page 29 of 48 'Diacetylmorphine', '6- monoacetylmorphine', 'acetaminophen' and 'caffeine'. Exhibit A-1 was found to contain 'Diacetylmorphine' 7.6%. After the examination, the remnants of the exhibit had been sealed with seal of "SY FSL DELHI"
impression as per specimen provided. He proved his report bearing No. FSL-2017/C-8135 dt. 20.12.2017 and identified his signature at point A on Ex.PW6/A. He also identified his signatures on the case property at point A & B.
56. PW-6 was not cross-examined by the Ld. Counsel for the accused, despite opportunity.
FORMAL WITNESSES
57. PW-1 is ASI Satish Kumar, who deposed that on 16.10.2017, he was posted as ASI at PS Seelam Pur and on that day, he was performing his duties as Duty Officer at the PS since 4:00 pm to 12:00 midnight. At about 11:50 pm, Ct. Anil gave him rukka of this case, which was sent by SI Manoj Tomar. Accordingly, on receipt of the rukka, he got registered FIR No. 634/17 u/s. 21 NDPS Act on computer through computer operator. After registration of the FIR, the copy of FIR and rukka were handed over to ASI Khagnesh for further investigation. He proved the original/official copy of the FIR, as, Ex.PW1/A. He SC No. 63/2018 State Vs. Mohsin Page 30 of 48 had also made kayami DD No. 24-A and endorsement regarding same was also made by him on the rukka, vide Ex.PW1/B. He had also issued certificate u/s 65-B Indian Evidence Act Ex.PW1/C regarding the aforesaid FIR.
58. PW-1 was cross-examined by the Ld. Counsel for the accused. In his cross-examination, he deposed that Ct. Anil handed over to him the original tehrir without envelope. He had informed the SHO personally regarding the said rukka. He denied the suggestion that the FIR was not got registered in the manner as deposed by him, or that the same was ante dated and ante timed.
59. PW-5 is HC Rambir, who deposed that on 16.10.2017, he was posted as MHC(M) at PS Seelampur, Delhi, On that day, Insp, Ram Avtar had handed over to him two plastic dibbi pullandas sealed with the seal of MKT & RA and one FSL form and copy of seizure memo, the particulars thereof were entered by him in register no. 19 at Srl. No. 4338. He also deposed that on 17.10.2017, ASI Khagnesh deposited with him one black colour purse containing Rs.1200/-, on notice u/s. 50 NDPS Act and one mobile phone make Vivo. The same were taken into possession by him and particulars thereof were entered by him at Srl. 4339 in register no. 19. Both the entries are in his SC No. 63/2018 State Vs. Mohsin Page 31 of 48 handwriting and collectively exhibited as Ex.PW5/A.
60. He further deposed that on 30.10.2017, case property comprising of one plastic jar duly sealed with the seal of MKT & RC. He had also sent the FSL form alongwith the case property through Ct. Sumit vide RC No. 160/21. The RC is in his handwriting and photocopy of the same was exhibited as Ex.PW5/B, signed by his at point A. Ct. Sumit had returned with duly acknowledged copy from FSL. Copy of the same was exhibited as Ex.PW5/C. On 10.01.2018, one sealed pullanda from FSL was received alongwith the result through Ct. Neeraj. The particulars were entered by him opposite serial no. 4338 in register no. 19. The result was handed over to ASI Khagnesh for necessary action. The relevant entries of register no. 19 have also been signed by SHO Insp. Ram Avtar Tyagi at points A. He had signed the register in his presence.
61. PW-5 was also not cross-examined by the Ld. Counsel for the accused, despite opportunity.
62. PW-7 is Ct. Sumit, who deposed that on 30.10.2017, he was posted at PS Seelampur, Delhi. On that day, on the instruction of the IO, he had taken one small transparent plastic jar covered with doctors tape and sealed with seal of MKT and SC No. 63/2018 State Vs. Mohsin Page 32 of 48 RA alongwith the FSL form vide RC No. 160/21 and same was deposited by him at FSL, Rohini. He identified his signature at point B on the RC Ex.PW5/B and he had also deposited an acknowledgment receipt from FSL with MHC(M) and identified his signature at point A on Ex.PW5/C.
63. PW-7 was cross-examined by the Ld. Counsel for the accused. In his cross-examination, he denied the suggestion that the case property which was taken by his was tempered by him and after that it was deposited at FSL, Rohini, or that he had not taken any pullanda to FSL, or that he had not deposited any acknowledgment copy to the MHC(M).
OTHER POLICE WITNESSES
64. PW-8 is Insp. Ram Avtar Tyagi, who deposed that on 16.10.2017, he was working as SHO PS Seelampur, Delhi. On that day, HC Anil had brought and produced before him one notice u/s. 42 NDPS Act, which was sent by SI Manoj Tomar at about 8:30 pm. The said notice was received by him. He identified his signature at point A on the photocopy of Mark PW8/X. On the next day, i.e. 17.10.2017 at about 2:15 am, HC Anil had come to the PS and produced before him two sealed pullandas duly sealed with the seal of MKT, FSL form and copy SC No. 63/2018 State Vs. Mohsin Page 33 of 48 of seizure memo. The Duty Officer also handed over the copy of FIR of this case. H had put his seals and particulars of FIR on the sealed pullandas and FSL form. Thereafter, he had deposited the two sealed pullandas, FSL form and seizure memo with MHC(M) HC Rambir. IO ASI Khagnesh recorded his statement on 17.10.2017 in this regard.
65. PW-8 was cross-examined by the Ld. Counsel for the accused. In his cross-examination, he stated that the notice u/s. 42 NDPS Act was produced before him without envelope. At the first time, HC Anil remained at the PS for about 10-15 minutes. He did not give any order in writing to HC Anil. HC Anil remained at the PS for about half an hour on 17.10.2017. It took around 30-45 minutes in completing the proceedings on 17.10.2017 at the PS. He denied the suggestion that he was deposing falsely.
66. PW-10 is SI Rizwan, who deposed that on 17.10.17, he was working as Reader to ACP Seelampur. On that day, written intimation in terms of Sec. 42 NDPS Act, vide DD No. 18-A dt. 16.10.17 sent by SI Manoj Tomar, was received in their office, vide diary no. 4898 dt. 17.10.17. He had put up the same before ACP Seelampur for his perusal and he had made his endorsement on it in that regard. He identified the initials of Sh. SC No. 63/2018 State Vs. Mohsin Page 34 of 48 Shashank Jaiswal, the then ACP Seelampur at point A. He had also proved original intimation Ex.PW10/A. On 18.10.17, two reports u/s 57 NDPS Act i.e. one report prepared by SI Manoj Tomar and another report prepared by 2nd IO ASI Khagnesh Kumar were also received in the office.
67. He further deposed that the said reports were entered into relevant register, vide entry no. 4916 dt. 18.10.17. Both the said reports were duly produced before the concerned ACP, who after seeing them had made his endorsements thereupon. He also identified the initials of the then ACP at points A on both the reports Ex.PW10/B and Ex.PW10/C. He also proved the relevant entries appearing at Sl. No. 4898 and 4916 (Ex.PW10/D).
68. PW-10 was cross-examined by the Ld. Counsel for the accused. In his cross-examination, he denied the suggestions that the said written intimation/reports were not received in the office of ACP on 17.10.17 and 18.10.17, or that same were fabricated subsequently at the instance of senior police officers including ACP, or that the aforesaid entries Ex.PW10/D (colly.) are fabricated, or that same were got ante-dated subsequently at the instance of IO or SHO or ACP concerned, that is why, even copies thereof were not placed alongwith chargesheet before the Court. He also denied the suggestion that he was deposing falsely SC No. 63/2018 State Vs. Mohsin Page 35 of 48 being police official.
69. PW-11 is SI Khagnesh Kumar, who deposed that on 17.10.2017, he was posted as ASI at PS Seelampur, Delhi. On that day, Ct. Anil handed over him the original tehrir and copy of FIR and he alongwith Ct. Anil reached at the spot i.e. Zero Pushta Road, in front of Govt. School, K-Block Jhuggi, Seelampur, Delhi, where SI Manoj Kumar alongwith accused Mohsin, who was correctly identified by PW-11 in the court, HC Sushil and Ct. Sonu met him. SI Manoj Kumar handed over him photocopy of notice u/s. 42 NDPS Act, original seizure memo and carbon copy of notice u/s. 50 NDPS Act, which was received by the accused. Accused was interrogated. He prepared site plan at the instance of SI Manoj Tomar and identified his signature at point B on Ex.PW9/B. He also recorded statement of SI Manoj Tomar and he was relieved. Accused was arrested, vide arrest memo Ex.PW2/B and his personal search was conducted, vide personal search memo Ex.PW2/C. He also identified his signatures at point C and D on Ex.PW2/B and Ex.PW2/C respectively.
70. He further deposed that in the personal search of the accused, one black colour purse containing Rs.1200/-, original notice u/s. 50 NDPS Act and one mobile phone make VIVO were SC No. 63/2018 State Vs. Mohsin Page 36 of 48 recovered. The information of arrest was given to his mother. Accused made a disclosure statement Ex.PW2/D and after conducting the medical examination of the accused, he was put into the lockup. On the same day, accused was produced before the concerned court and he was sent to JC. Exhibits of this case were got sent to FSL and result Ex.PW6/A was collected. Prior to the arrest of the accused, notice u/s. 52 NDPS Act was given to him and he identified his signature at point B on Ex.PW4/A. Information of arrest of accused Ex.PW10/C was sent in writing to the senior officers of the police. He identified the case property i.e. the purse Ex. P-1, mobile phone Ex. P-2 and original notice u/s. 50 NDPS Act Ex. P-3. He also identified his signatures on the notice Ex. P-3 at point A, signature of HC Sushil at point B, signature of Ct. Anil at point C, signature of Ct. Sonu at point D and thumb impression of accused at point E.
71. PW-11 was not cross-examined by the Ld. Counsel for the accused despite of opportunity.
STATEMENT OF ACCUSED
72. All the incriminating circumstances appearing in evidence against accused Mohsin were put to him as required u/s 313 CrPC. Accused stated that he was innocent and he was lifted SC No. 63/2018 State Vs. Mohsin Page 37 of 48 from his house by two police officials on the pretext of some enquiry and falsely implicated in the present case. Even, he was not present at the spot. He stated that nothing was recovered from him and the recovery of the contraband was planted upon him. Accused examined two witnesses in his defence. DEFENCE EVIDENCE
73. In his defence evidence, accused examined DW-1, who is mother of the accused and DW-2, who is neighbour of the accused.
74. DW-1 is Ms. Kherun, who deposed that on 16.10.2017, two police officers came to her house and inquired about her son namely Mohsin. They stated that some enquiry was to be done from the accused. Accused was taken to PS Seelampur. She was told that the accused would be implicated in a small case and he would get bail on the next day. When, she came to the Karkardooma Court on the next day, her son was produced in the court but he was not released on bail and subsequently, came to know about the present false case made against her son. This case is false and her son has not committed any such offence.
75. DW-1 was cross-examined by Sh. F. M. Ansari, Ld. SC No. 63/2018 State Vs. Mohsin Page 38 of 48 Addl. PP for the State. In her cross-examination, she deposed that she was not a summoned witness. She has been asked by her son i.e. accused Mohsin to depose in the present case. She denied the suggestion that no police officers of PS Seelampur had visited her house on 16.10.2017, or that on 16.10.2017, police officials had apprehended the accused Mohsin on receipt of secret information, while they were present on patrolling in front of Zero Pushta, K Block, Jhuggi, near Government Boys/Girls Sr. Secondary School, Gautam Puri, New Seelampur, or that she was deposing falsely, being the mother of the accused and she was an interested witness.
76. DW-2 is Mohd. Mumtiyaaz, who deposed that Mohsin is her neighbenar since about 20 years. On 16.10.2017, accused Mohsin was in his house, when two police officials came and took him to PS New Seelampur. When they asked as to why they were taking accused Mohsin, they replied that they wanted to enquire accused Mohsin. When they reached at the Police Station, they were asked to come in the evening, as the senior officials were not present at that time. When they again came to the Police Station at night, they were told that accused Mohsin was arrested in a minor case and he would get bail on the next day from the court.
SC No. 63/2018 State Vs. Mohsin Page 39 of 48
77. DW-2 was cross-examined by Sh. F. M. Ansari, Ld. Addl. PP for the State. In his cross-examination, he submitted that he had not received any summons/notice from the court for deposition in the present case. The address of accused Mohsin is E-16/K-27. He was driver by profession and used to go on duty at 6 AM and return at 1-2 PM. He had no knowledge regarding any complaint, if it was lodged by the family members of accused Mohsin, when he was taken to PS Seelampur for any enquiry. He denied the suggestion that no police officers of PS Seelampur had visited his house on 16.10.2017, or that on 16.10.2017, police officials had apprehended the accused Mohsin on receipt of secret information, while they were present on patrolling in front of Zero Pushta, K Block, Jhuggi, near Government Boys/Girls Sr. Secondary School, Gautam Puri, New Seelampur, or that he was deposing falsely, being the neighbour of the accused and he was an interested witness.
SUBMISSIONS OF THE PARTIES
78. I have heard Sh. F. M. Ansari, learned Addl. PP for the State and Sh. Jagmohan Singh, learned Counsel for the accused.
79. Sh. F. M. Ansari, Ld. Additional PP for the State SC No. 63/2018 State Vs. Mohsin Page 40 of 48 submitted that prosecution has proved the recovery of contraband from the accused. He submitted that provisions of Sec. 50 of NDPS Act were complied with. He contended that since the charge has been proved beyond reasonable doubt, therefore, accused may be convicted in the present case.
80. Sh. Jagmohan Singh, Ld. counsel for accused submitted to the contrary. He submitted that DD No. 18A dated 16.10.2017 was lodged regarding departure of five police officials, however, only four police officials were involved in the investigation and submitted that there is no role of Ct. Sandeep in the investigation. He further submitted that there is no mentioning in the notice u/s. 42 of NDPS Act that it will be given to the SHO and also there is no written information for preparing the raiding team. He also submitted that accused was lifted from his house and falsely implicated in the present case and the recovery of the contraband, has been planted upon the accused.
81. I have considered the rival submissions, put forth by both the sides.
FINDINGS
82. From the submissions of the learned Counsel, the following point for determination arise in the present case: SC No. 63/2018 State Vs. Mohsin Page 41 of 48
Whether the accused was found in possession of 6.05 gms. of smack (Heroin) as alleged?
83. Before a person can be held liable for commission of any offence, the prosecution has to establish his guilt beyond reasonable doubt.
84. I shall now delve into the appraisal of material available on record.
85. Possibility of tampering: The testimonies of the police officials who were part of the raiding team reflect that the case property and the remaining case property was sealed with the seal of MKT, however, there is no handing over memo of the seal to suggest that the seal used for the seizure of the case property remained in possession of any independent person. As per the prosecution case, the seal after use was handed over to Ct. Anil, who was admittedly not an independent person. Meaning thereby, all throughout the seal remained with those persons, who were members of the raiding team, therefore, possibility of tempering with the seized contraband cannot be ruled out.
86. No handing over memo of the seal was prepared. In the instant case no handing over memo of the seal was prepared which can suggest that case property remained intact and there is SC No. 63/2018 State Vs. Mohsin Page 42 of 48 no tampering with the same. As per evidence available on record, the seal after use was not given to any independent public person. Moreover, there is no seal handing over memo on record. Further, there is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station or not. In such case, tampering with case property cannot be ruled out. As a result, the benefit of doubt has to be given to the accused. Reliance is placed upon the decision in Safiullah v. State, (1993) 49 DLT 193, where the Hon'ble High Court of Delhi observed:
"9..... The seal after use were kept by the police officials themselves therefore the possibility of tempering 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 tempered with ......... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
87. It is not in doubt that while the testimony of the police witnesses in absence of independent witnesses may be sufficient to secure conviction, if the same inspires confidence during the trial, however, lack of independent witness in certain cases can cast a doubt as to the credibility of the prosecution's case. It is not disputed that the investigating agency had sufficient time to prepare before the raid was conducted.
88. Non Joining of any independent witnesses: As per the version of PWs, the public persons were asked to join the SC No. 63/2018 State Vs. Mohsin Page 43 of 48 investigation, but, none of them agreed and went away without disclosing their names and addresses. Further, the IO has not produced any notice u/s. 160 of the CrPC which ought to have been served upon those available independent witnesses who allegedly refused to join the investigation. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available created reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"It is repeatedly laid down by the Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were examined, however, their testimonies have to be SC No. 63/2018 State Vs. Mohsin Page 44 of 48 scrutinized in more detail. If it is found that the police officials during the course of investigation did not even make endeavor to ask the public witnesses to join the investigation, did not even ask their names and details, etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir Vs. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court of India in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
SC No. 63/2018 State Vs. Mohsin Page 45 of 48
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
Therefore, in view of the above mentioned law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinize their testimonies more closely and should preferably be corroborated.
89. No phorography of case property was carried out by the investigating agency. Also, the testimony of all the prosecution witnesses is completely silent upon the aspect of the photography of the case property. Accordingly, no photographs of the case property were taken at the time of recovery. Thus, not finding any public witness and lack of photography and videography of the alleged recovery in today's time and age casts a doubt on the credibility of the evidence. It is not the case of the prosecution that any notice was served under Section 100(8) of the CrPC on the person who refused to join the raiding party in SC No. 63/2018 State Vs. Mohsin Page 46 of 48 the process of seizure. It is also relevant to note that the procedure prescribed in the NCB Handbook, which has been adopted by the Delhi Police, though may not be binding, however, prescribes photography and videography as a crucial practice for obtaining evidence in order to avoid allegation in regard to the foul play.
90. Further, it is worth noting that it was Ct. Anil, who had gone to the PS with notice u/s. 42 of the NDPS Act. After informing the SHO and after taking the weighing machine from the PS, he had returned back to the spot. However, no arrival and departure entry was made to that effect, as admitted by him. Further, Ct. Anil had gone to the PS on a TSR and it is not understandable as to why that TSR driver has also not been made a witness in the present case. Examination of that TSR driver would have put a lot of credibility in the prosecution story but he has not been named in the list of witnesses for the reason best known to the IO.
91. In view of the above, it can be said that the prosecution has failed to prove beyond all reasonable doubts that the recovery of alleged 6.05 grams of smack (heroin) from the accused and the accused is entitled for benefit of doubt and thus, he stands acquitted in the present case. Accused is required to SC No. 63/2018 State Vs. Mohsin Page 47 of 48 furnish bail bonds as per Sec. 437-A CrPC.
92. At request of the accused, bail bonds already furnished by him are accepted for a period of six months for the purposes of Sec. 437-A CrPC.
93. Case properties are confiscated and be destroyed as per rules.
94. File be consigned to Record Room.
Announced in the open court Digitally signed
by PUNEET
on the 27th day of July, 2024 PUNEET PAHWA
Date:
PAHWA 2024.07.27
15:22:24
+0530
(PUNEET PAHWA)
Special Judge (NDPS)/Addl. Sessions Judge/
North East District/Karkardooma Courts/Delhi SC No. 63/2018 State Vs. Mohsin Page 48 of 48