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(Sc No.24/N/12) (State vs . Saroj) Page No.1 Of Pages 12 on 16 May, 2015

     IN THE COURT OF ADDL. SESSIONS JUDGE : SPECIAL JUDGE 
       (NDPS) WEST DISTRICT : TIS HAZARI COURTS  : DELHI
                   PRESIDED BY :  MR. RAKESH KUMAR­I

IN THE MATTER OF

SESSIONS CASE NO.24/N/12
FIR NO.288/12  
P.S. UTTAM NAGAR
U/S 20(b)(ii)(B) NDPS ACT 
 
STATE

                 VERSUS

SAROJ, W/O MR. SANJAY,
R/O HOUSE NO.D­33, PHASE­V,
OM VIHAR, UTTAM NAGAR, DELHI. 

        DATE OF  INSTITUTION                              :         01.08.2012.
        DATE OF CONCLUSION OF ARGUMENTS                   :         13.05.2015.
        DATE OF DECISION                                  :         13.05.2015.

                                    ­:J U D G M E N T:­

1.

The above named accused has been charge sheeted under section 20/61/85 of The Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act) by SHO PS Uttam Nagar and has faced trial for having committed the offence punishable U/s 20(b)(ii)(B) of NDPS Act.

2. ­:CASE OF PROSECUTION:­ As per the case of prosecution on 03.07.2012 at about 09:00 PM, a secret informer had informed PW­8 Sub­Inspector Kuldeep Singh that accused Saroj R/o D­33, Om Vihar, Phase­V, Uttam Nagar, Delhi used to sell GANJA and PW­8 produced the Secret informer before PW­4 SHO Inspector Jai Kishan Gautam(now ACP), who verified the facts of secret information from the secret informer and instructed PW­8 to conduct a raid immediately. PW­8 SI Kuldeep Singh constituted a raiding party consisting of himself, PW­7 Ct. Ram Kumar, PW­6 W/Ct. Mukesh and (SC No.24/N/12) (State Vs. Saroj) Page No.1 of pages 12 PW­9 Ct. Narender. PW­8 lodged DD No.87B Ex.PW8/A. PW­8 briefed the members of raiding party regarding the secret information. At about 09.20 PM, all the members of raiding party alongwith the secret informer left the police station in Wagon­R bearing registration No.HR­51J­7880 and reached the street near the House No.D­33, Om Vihar, Uttam Nagar, Delhi. They stopped 20­30 yards away from the said house and sent the secret informer to verify whether the accused was selling GANJA and to give signal by lifting his hand if he found accused Saroj selling GANJA. PW­8 Sub­Inspector Kuldeep Singh requested 10­12 public persons to join the raiding party but they refused and left the spot without disclosing their names and identity and after giving reasonable excuse. The secret informer gave a signal by lifting his hand and immediately all the members of raiding party reached at the spot. The secret informer pointed towards accused Saroj and she was found selling GANJA. On seeing the raiding party, accused Saroj started running alongwith plastic bag which she was carrying, however, she was apprehended by PW­6 W/Constable Mukesh after chasing her. PW­8 Sub­Inspector Kuldeep Singh told the accused that they had an information that she was selling GANJA and her search was to be conducted. Thereafter, the accused were informed about her legal right that if she wish, she could be searched in the presence of a Magistrate or Gazetted Officer. PW­8 also informed the accused about her legal right that if she wish, she could conduct the search of members of raiding party and government vehicle. PW­8 also made her understand the meaning of Gazetted Officer and Magistrate. The accused told that she belongs to SANSI community and selling GANJA/liquor is her profession for livelihood and she did not want her search to be conducted in the presence of either Magistrate or the Gazetted Officer. PW­8 Sub­ Inspector Kuldeep Singh prepared notice under Section 50 NDPS Act Ex.PW7/A and served to the accused as she had been in possession of GANJA. Accused gave her reply that she did not want to be searched before Gazetted Officer or Magistrate, even she does not want to take (SC No.24/N/12) (State Vs. Saroj) Page No.2 of pages 12 the search of the police party. PW­6 W/Constable Mukesh took one polythene bag from accused Saroj which she was carrying in her hand. PW­8 informed PW­4 Inspector Jai Kishan Gautam, the then SHO/now ACP regarding the recovery of GANJA from the possession of accused. PW­4 Inspector Jai Kishan Gautam, now ACP reached the spot. PW­8 SI Kuldeep Singh checked the polythene bag and found containing GANJA in it. PW­8 weighed the GANJA and found the same as 4.400 Kilograms. Two samples of 500 grams each were taken out and same were taken into pullandas and marked as serial no.1 and serial no.2. Remaining quantity of GANJA was kept in the same polythene bag and thereafter marked as serial no.3. PW­8 also filled in the FSL Form. All the three parcels and FSL Form were sealed with the seal of KS. PW­4 Inspector Jai Kishan Gautam, now ACP also affixed his seal of JK on all the three pullandas and FSL Form. All the pullandas were seized vide seizure memo Ex.PW7/B. Seal after use was handed over to PW­7 Constable Ram Kumar. PW­4 Inspector Jai Kishan Gautam, now ACP had also handed over his seal to PW­7 Constable Ram Kumar. PW­4 Inspector Jai Kishan Gautam, now ACP took possession of all the pullandas and FSL Form and copy of the seizure memo and left the spot. PW­4 got deposited the sealed pullandas, FSL Form and copy of seizure memo in malkhana with the MHC(M) PW­1 Head Constable Rattan Lal, who made entry in this regard as Ex.PW1/A. PW­8 Sub­Inspector Kuldeep Singh prepared rukka Ex.PW8/B and handed over the same to PW­9 Constable Narender Singh at 11.45 PM, who went to the police station Uttam Nagar and handed over the rukka to duty officer PW­5 Head Constable Jagdish for registration of the FIR. PW­5 got registered the FIR Ex.PW5/A and made endorsement Ex.PW5/C on the rukka. The certificate under section 65B of Indian Evidence Act is Ex.PW5/B. The Kayami is Ex.PW5/D. The further investigation was marked to PW­3 Assistant Sub­Inspector Daya Kishan. PW­3 Assistant Sub­Inspector Daya Kishan alongwith PW­9 Constable Narender Singh reached the spot where PW­8 Sub­Inspector Kuldeep Singh narrated the complete (SC No.24/N/12) (State Vs. Saroj) Page No.3 of pages 12 facts to him and handed over the accused along with the relevant documents to him. PW­3 Assistant Sub­Inspector Daya Kishan prepared the site plan Ex.PW3/A at the instance of PW­8 Sub­Inspector Kuldeep Singh. PW­8 left the spot. PW­3 Assistant Sub­Inspector Daya Kishan interrogated and arrested the accused vide arrest memo Ex.PW3/B. Her personal search was conducted by PW­6 Lady/Constable Mukesh vide memo Ex.PW3/C. The next day the accused was sent for medical examination to DDU Hospital. The same day she was produced in the court and sent to judicial custody. The special report/notice 57 NDPS Act Ex.PW2/A was prepared by PW­3 Assistant Sub­Inspector Daya Kishan and the same was forwarded by PW­4 Inspector Jai Kishan Gautam, SHO/now ACP and received in the office of ACP vide entry Ex.PW2/B. On 24.07.2012 the exhibits of the present case were deposited in FSL, Rohini by PW­3 Assistant Sub­Inspector Daya Kishan vide RC No. 172/21/12 vide entry Ex.PW1/A at point C. The acknowledgment from the FSL is Ex.PW1/B. FSL result is Ex.PW3/D. During the course of investigation, statements of witnesses were recorded and than after the completion of investigation, charge sheet was presented before the court where after supplying copies of charge sheet, charges under section 20(b)(ii)(B)NDPS Act was framed against the accused vide order dated 06.09.2012, to which she pleaded "not guilty" and claimed trial.

3. PROSECUTION EVIDENCE To prove the guilt of accused, prosecution has examined nine witnesses. For the purpose of discussion, all the witnesses are classified as under:­ A. WITNESSES PERTAINING TO RECORD / FORMAL WITNESSES PW­1 Head Constable Rattan Lal, the MHC(M) has proved various entries made in register no. 19 and 21 of the malkhana;

PW­2 Head Constable Virender Kumar, Reader to Assistant Commissioner of Police J.K. Sharma has proved original report under section 57 NDPS Act Ex. PW­2/A and entry of receipt of this report Ex.PW2/B;

PW­5 Head Constable Jagdish, the Duty Officer has proved FIR Ex.PW­5/A, certificate u/s 65B of Indian Evidence Act Ex.PW5/B, (SC No.24/N/12) (State Vs. Saroj) Page No.4 of pages 12 endorsement on rukka Ex.PW­5/C and Kayami Ex.PW5/D;

B. MATERIAL WITNESSES PW­3 Assistant Sub Inspector Daya Kishan, the subsequent Investigating Officer of this case has proved various documents prepared during the course of investigation;

PW­4 ACP Jai Kishan Gautam, the then SHO has visited the spot, affixed his seal all the pullandas as well as on the FSL Form. He has also deposited the case property with MHC(M);

PW­6 & PW­7 Lady Constable Mukesh and Constable Ram Kumar Singh, the recovery witnesses;

PW­8 Sub Inspector Kuldeep Singh, the Initial Investigating Officer has proved various documents prepared during the course of investigation;

PW­9 Constable Narender Singh, one of the recovery witnesses and took rukka to police station for registration of the FIR;

4. STATEMENT OF ACCUSED After completion of prosecution evidence, the statement under section 313 Cr.P.C. of accused was recorded wherein she denied the case of prosecution and stated that she has been falsely implicated in this case; Beat Constable whose name she does not know visited her house and told that the SHO P.S. Uttam Nagar had called her in police station; she visited police station where she was detained in the lockup and falsely implicated in this case; she is a vegetable seller; she has three daughters and a son; no contraband was recovered from her.

5. DEFENCE EVIDENCE Accused has examined DW­1 Mr. Sanjeev in her defence.

6. The record has been carefully and thoroughly perused. Submissions of learned Additional Public Prosecutor for State and learned counsel for accused have been heard. The respective submissions of either side have been considered.

7. Learned Additional Public Prosecutor for State has submitted that the prosecution has duly proved its case. All the witnesses produced and examined by the prosecution have fully corroborated with the case of (SC No.24/N/12) (State Vs. Saroj) Page No.5 of pages 12 prosecution and the factum of recovery of Ganja from the possession of accused is established beyond the shadow of reasonable doubt. FSL result is also in consonance to the case of prosecution. The contradictions and in infirmities as pointed out by Ld. Defence Counsel regarding the defects in the notice U/s 50 of NDPS Act and the site plan Ex.PW3/A etc. is of minor and insignificant nature and as such accused is liable to suffer an order of conviction against her.

Per contra, according to learned counsel for the accused there are material contradictions in the case of prosecution which go to the roots of the case of prosecution and the testimonies of prosecution witnesses are doubtful. Therefore, the accused is liable to be acquitted after giving her benefit of doubt. Firstly, it can not be disputed that the area from where the accused was allegedly found selling the contraband is a residential area but no pubic person was joined in the investigation by the IO and the explanation tendered by the IO regarding non joining of public persons in the investigation is stereo type and it inspire no confidence. No notice upon the public persons, who refused to join the investigation was served by the IO. Further the notice U/s 50 NDPS Act Ex.PW7/A does not bear the signature of accused and the written reply of accused regarding notice U/s 50 NDPS Act is also not placed on record. Further the Site Plan Ex.PW3/A does not bear the signature of any official. It only bears the stamp impression of ASI Daya Kishan. The place of selling of contraband by accused, the spot where the Wagon R car was parked and the small compartment near the spot, where the lady constable had carried the personal search of accused are not depicted in the Site Plan Ex.PW3/A. It was further submitted that merely because the accused was allegedly found in possession of intermediate quantity of Ganja i.e. 4 Kg. 400 grams of Ganja, testimonies of police officials should not be accepted as gospel truth. Learned counsel for accused has relied on following authorities :­

1. Bijay V/s State, ..... 2011 VI AD (DELHI) 562

2. Radha Kishan V/s State, ..... 87 (2000) DELHI LAW TIMES 106 (SC No.24/N/12) (State Vs. Saroj) Page No.6 of pages 12

3. Gulam Mohd. V/s State, ..... 1996 (3) CRIMES 272

4. Sunil Chaudhary V/s State ..... 2012 (2) LRC 179 (Del)

5. Mool Chand V/s State ..... 49 (1993) DELHI LAW TIMES 649

6. Satinder Singh V/s State ..... 69 (1997) DELHI LAW TIMES 577

8. Having heard the rival submissions of both the sides and keeping in view the entire facts and circumstances, I am of the considered opinion that the prosecution has been failed to prove its case against the accused persons beyond the shadow of reasonable doubt for the reasons firstly, in the instant case, notice issued under section 50 NDPS Act Ex.PW7/A is pretending to be defective as the said notice neither depicts the signature of accused nor there is any endorsement regarding refusal on the part of accused, for getting her search conducted. Even no separate written reply of accused regarding notice U/s 50 NDPS Act is found paced on record. Moreover, PW­8 SI Kuldeep Singh in his testimony has stated that he had taken the signature of accused on carbon copy of notice U/s 50 NDPS Act Ex.PX. It is very strange that the IO was running two separate proceedings simultaneously i.e. one through original notice and other through the carbon copy of notice U/s 50 NDPS Act. Section 50 NDPS Act envisages valuable safeguard for the rights of the accused of being searched before a Gazetted Officer or a Magistrate. This is indeed an extremely important right of the accused so that apprehension of false implication in such cases is minimised. It is bounden duty and the obligation of the prosecution to ensure that the accused understands this valuable right in a proper perspective, particularly, when an accused is an illiterate. The sanctity of valuable right has to be preserved.

Further perusal of record reveals that at no stage of investigation, any independent public witness was joined in the investigation by the IO. The alleged incident took place on 03.07.2012 at about 9.35 PM at D­33, Om Vihar, Phase­V, Uttam Nagar, New Delhi. Admittedly, the place of occurrence is a residential area and the alleged incident had taken place in front of the house of accused and due to that reason that place (SC No.24/N/12) (State Vs. Saroj) Page No.7 of pages 12 would have been crowded with public persons. Even PW­6 L/Ct. Mukesh (one of the members of raiding party) in her testimony has stated that she does not know if IO had requested the neighbours of the accused to join the proceedings. PW­7 Ct. Ram Kumar Singh (another member of raiding party) stated that IO requested 10­12 public persons to join raiding party but they refused without disclosing their names and identify after giving reasonable excuse. Even PW­7 has stated that when they reached at the spot 2­3 customers were also present there. If it was so then why the said 2­3 were not not joined in the investigation nor they made as witnesses in the present case. Even the IO/SI Kuldeep Singh (being the head of raiding party) has stated in his testimony that he requested 10­12 public persons to join the raiding party but they refused and left the spot without disclosing their names and identify and after giving reasonable excuse. He conceded he did not serve any notice to those public persons who refused to join the proceedings. Present is not a case of chance recovery as on receipt of prior information for the apprehension of accused Saroj, a raiding party was constituted comprising of SI Kuldeep Singh, Ct. Ram Kumar, W/Ct. Mukesh and Ct. Narender. In the instant matter secret information was received at PS Uttam Nagar on 03.07.2012 at about 9.00 PM and accused Saroj was arrested in this case at about 1.35 AM on 04.07.2012. It means after receiving the secret information regarding selling of GANJA by accused, it took around 4:30 hours to apprehend the accused and during that time the raiding party failed to arrange any public witness in the joining the proceeding with them. Perusal of the record reveals that at no point of time, any public witness has been joined in the investigation. What to talk about the duration of pre­arrest of accused during the subsequent stage of investigation also i.e. after the apprehension of accused and the alleged recovery from her possession, no genuine attempt appears to have been made by the investigating agency to call upon any independent person to join the proceedings. Admittedly, no­one from the nearby residential houses had even been (SC No.24/N/12) (State Vs. Saroj) Page No.8 of pages 12 requested to join the proceedings at any stage at the spot. That being the position, testimonies of police officials which are uncorroborated from any independent quarter have to be looked into with great care and caution and cannot be accepted as gospel truth.

It had been so held in Munni Lal Vs. State (1995 JCC 110) and Pardeep Vs. State (1997 JCC 476) that where no genuine attempt was made by the investigating agency to join independent public persons, though available at the spot, bald testimonies of the police officials cannot be accepted as gospel truth.

Perusal of record further reveals that the entire case of prosecution primarily rests on testimonies of PW­6 L/Ct. Mukesh, PW­7 Ct. Ram Kumar Singh, PW­8 SI Kuldeep Singh (Head of raiding party and Ist IO) and PW­9 Ct. Narender Singh, who are the members of raiding party and there are glaring contradictions in their testimonies, which commenced from the time when the police party had allegedly left the police station and continued till the time police party left the spot and even thereafter.

According to the case of prosecution on 03.07.2012 at 9.00 PM secret informer came in the Police Station and gave secret information about the selling of GANJA by one lady namely Saroj and accordingly said informer was produced before SHO by SI Kuldeep Singh and he was informed accordingly and on the instruction of SHO, SI Kuldeep Singh formed a raiding party consisting of himself, Ct. Ram Kumar, W/Ct. Mukesh and Ct. Narender. As regards to the mode of vehicle used by raiding party while leaving Police Station, all the members of raiding party said that they used a private vehicle but except the SI Kuldeep Singh, none of the other members of raiding party could tell the number of vehicle used by them during the relevant time. Even the said IO change his version regarding the ownership of said vehicle because on one side he stated that the said Wagon R Car belongs to him but thereafter, he changed his stand and stated that he is not the registered owner of that car and it is owned by his friend namely Naresh Tyagi.

(SC No.24/N/12) (State Vs. Saroj) Page No.9 of pages 12 Further according to PW­7 Ct. Ram Kumar the raiding party was constituted at 9.00 PM in the Police Station and at that time SHO was not present. According to the case of prosecution, secret information was received in the Police Station on 03.07.2012 at 9.00 PM and thereafter, only on getting information regarding selling of GANJA by one lady, SHO directed to form a raiding party. If the testimony of PW­7 is believed upon that the raiding party was constituted at 9.00 PM and at that time SHO was not present in the Police Station then who directed SI Kuldeep Singh to form the raiding party.

Further according to PW­9 Ct. Narender Singh, all the members of raiding party were in uniform, whereas according to PW­6 L/Ct. Mukesh some of the members of the raiding party were in uniform and some were in casual wear.

Further PW­6 L/Ct. Mukesh, PW­7 Ct. Ram Kumar Singh, PW­9 Ct. Narender Singh in their respective testimonies have stated that at about 9.15, they all (members of raiding party) left the Police Station and reached at the spot at about 9.30 PM and on the pointing out of secret informer they saw one female was selling pudiya on the road, whereas PW­8 SI Kuldeep Singh narrated differently while stating that they reached in the street near the house no.D­33 and they stopped 20­30 yards away from the said house and sent the secret informer to verify whether the said lady was selling the GANJA or not and further instructed him that if he found that said lady namely Saroj was selling GANJA, then he made a signal by lifting his hand. Here it is pertinent to mention that none of the other members of raiding party have stated about sending of secret informer first to check as to whether the accused was selling GANJA or not and then to give signal by raising his hand. This also create doubt about the conducting of raid during the relevant time.

Further there is a material contradictions in the testimonies of prosecution witnesses regarding conducting of search of accused Saroj as perusal of the testimony of PW­8 SI Kuldeep Singh reveals that on his (SC No.24/N/12) (State Vs. Saroj) Page No.10 of pages 12 direction, PW­6 Lady Ct. Mukesh took the search of accused Saroj. Relevant portion of his testimony is reproduced as under:­ "....... The accused gave her reply that she does not want to be searched before Gazetted Officer or Magistrate, even she does not want to take the search of the police party. ............. W/Ct. Mukesh took the one polythene bag from accused Saroj which she was having in her hand. He informed SHO regarding the recovery of GANJA from the possession of accused Saroj and thereafter, SHO Insp. Jai Kishan Gautam reached at the spot."

On the other hand, testimony of PW­6 L/Ct. Mukesh reveals that SHO PS Uttam Nagar, after his arrival at the spot, gave him direction to search the accused. Relevant portion of her testimony is reproduced as under:­ "At about 10.30 PM, SHO came to the spot and directed him to search the accused. She searched the accused and found one polythene in her hand containing GANJA in it."

Further perusal of the Site Plan Ex.PW3/A reveals that the same does not bear the signature of any official. It only bears the stamp impression of ASI Daya Kishan. Further the place of selling of contraband by accused, the spot where the Wagon R car was parked and the small compartment near the spot, where the lady constable had carried the personal search of accused are not depicted in the Site Plan Ex.PW3/A. Further according to the testimonies of prosecution witnesses, the accused was selling GANJA in pudiyas but admittedly no pudiya was recovered either from the possession of accused or from the spot or nearby, where she was allegedly selling the GANJA. It has come in the (SC No.24/N/12) (State Vs. Saroj) Page No.11 of pages 12 testimony of PW­8 that one seeing the police party, accused had run away. If it was so, then the material for preparation of pudiya and the prepared pudiya would have been found there but it was not so. Relevant portion of the the testimony of PW­8 is reproduced as under:­ "....... When they apprehended the accused, they did not recover any pouch/pudiya from her possession............ he did not notice any pudiya or any material for preparation of pudiya outside the house of accused."

9. In view of aforesaid, I have come to the considered opinion that the prosecution has failed to prove its case against the accused Saroj beyond reasonable doubt and therefore, benefit of doubt is accrued in favour of the accused. Accordingly, accused Saroj is being acquitted for the offence punishable under section 20(b)(ii)(B) of The Narcotic Drugs and Psychotropic Substances Act. She is on bail in this case. She is directed to furnish a personal bond in sum of Rs.15,000/­ with one surety of the like amount in view of provisions of Section 437A Cr.P.C.

10. File be consigned to Record Room after due compliance.

ANNOUNCED IN THE OPEN COURT ON : 13th MAY, 2015 (RAKESH KUMAR­1) ADDITIONAL SESSIONS JUDGE SPECIAL JUDGE (NDPS) (WEST) DELHI / TIS HAZARI COURTS (SC No.24/N/12) (State Vs. Saroj) Page No.12 of pages 12