Delhi District Court
State vs (1) Shahid @ Fatti on 11 October, 2019
IN THE COURT OF MS MANJUSHA WADHWA
SPECIAL JUDGE (NDPS),(SHAHDARA)
KARKARDOOMA COURTS, DELHI
SC No.155/2017
FIR No.84/17
Police Station Seema Puri
Under Section 21/29 of NDPS Act & Section 77 of J.J. Act.
State Versus (1) Shahid @ Fatti
S/o Sh. Mohd. Rahees
R/o H.No. 132, Gali No. 1,
Saheed Nagar, Sahibabad,
Ghaziabad, UP.
(2) Salauddin @ Chaudhary
S/o Sh. Nizamuddin
R/o A82/41, Road no. 64,
SharadpuriI, Seema Puri, Delhi.
(3) Sharafat
S/o Sh. Shokat
B23, Shalimar Garden Main,
Sahibabad, Ghaziabad, UP.
Date of Institution : 16.05.2017
Date of judgment reserved : 16.09.2019
Date of order : 11.10.2019
Decision : Acquittal
JUDGMENT
1. Briefly stating, case of the prosecution is that in the intervening night of 15/16.02.2017, at about 11.30 p.m., a secret SC No.155/17 State Vs. Shahid @ Fatti etc. Page 1 of 38 informer came to SI Brijveer (PW2/first IO) and disclosed that accused Shahid @ Fatti along with his accomplices was coming with smack; first IO SI Brijveer(PW2) passed on the secret information to Inspector Sanjeev Kumar (PW10), the then SHO of PS Seema Puri and also produced the secret informer before him. The SHO Inspector Sanjeev Kumar (PW10) made inquiries from the secret informer and had a talk with ACP telephonically. Thereafter, on direction of Inspector Sanjeev Kumar (PW10), first IO (PW2) made entry regarding secret information in roznamcha register vide DD no. 114B (Ex.PW10/A) and produced copy thereof before SHO Inspector Sanjeev Kumar (PW10), who on being satisfied passed on the secret information to senior officer i.e. ACP Seema Puri, who directed the SHO Inspector Sanjeev Kumar (PW10) to conduct the proceedings.
2. Thereafter, first IO SI Brijveer (PW2) alongwith Ct. Pradeep (PW4), HC Latafat Ali (PW3) and secret informer left the PS at about 12.45 am along with IO kit, weighing machine, field testing kit vide DD no.3B dated 16.02.17 (Ex.PW10/B) and reached at Mohalla Clinic, in front of Red Cross Hospital, Dilshad Garden. PW2 asked passersby to join the raiding party after disclosing the information but none agreed and went away. The raiding party took position near Mohalla Clinic and Red Cross Hospital. At about 2.35 a.m., the raiding party apprehended the accused in front of Red Cross SC No.155/17 State Vs. Shahid @ Fatti etc. Page 2 of 38 Hospital. First IO apprised the accused about secret information and his right of being searched in presence of a Gazetted officer or a Magistrate or that any one of them could be called at the spot, if he wished, but the accused declined the said offer. The members of raiding party offered their search to the accused prior to his search; first IO gave original notice under Section 50 NDPS Act, Ex PW7/C to the accused but the accused stated himself to be illiterate; first IO read over and explained the notice to the accused. Reply of the accused was written on carbon copy of notice, Ex PW2/A which was signed by the accused.
3. The accused Shahid Fatti was having a polythene bag in his right hand and the said polythene bag was checked by first IO, which was found containing another transparent polythene bag tied with a rubber band having brownish powder and 17 paper pudiyas. First IO opened one of the pudiyas, which was also found containing brownish powder. The said brownish powder from the 17 pudiyas was collected in a small transparent polythene and marked as Mark A. Another transparent polythene with brownish powder was marked as Mark B. The powder from both the said polythenes was checked in fieldtesting kit and it was found to be Heroin.
4. First IO weighed the aforesaid polythenes: Mark A came to be 1.5 gm., whereas Mark B came to be 290 gms. First IO took SC No.155/17 State Vs. Shahid @ Fatti etc. Page 3 of 38 out two samples of 5 gm each from the transparent polythene Mark B containing 290 gms of brownish powder and samples were marked as B1 and B2. The remaining powder i.e. 280 gm brownish powder, was kept in the same transparent polythene and marked as B. All the transparent polythenes marked as A, B1, B2 and B were wrapped in white clothes separately and four pullandas were prepared and marked accordingly as A, B1, B2 and B. Papers of 17 pudiyas were wrapped in another white cloth and a pullanda was prepared which was marked as A1. All the five pullandas were sealed with the seal of BS and were taken into police possession vide seizure memo Ex.PW2/B. FSL form was filled at the spot. The seal after use was handed over by First IO SI Brijveer to Ct. Pradeep. First IO prepared a Tehrir, Ex.PW2/C and handed over the same along with FSL form, 5 sealed pullandas, carbon copy of seizure memo to Ct. Pradeep (PW4) with a direction to hand over the Tehrir to DO, PS Seemapuri and 5 sealed pullandas, FSL Form as well as carbon copy of seizure memo to SHO.
5. On 16.02.2017, at about 05.35 am, ASI Tahir Hussain (PW1), Duty Officer in PS Seemapuri received a rukka from Ct. Pradeep (PW4). ASI Tahir Hussain (PW1) made relevant entry in DD register vide DD No. 5A Ex.PW1/C; recorded FIR Ex. PW1/A in the present case and informed SHO in this regard. Duty Officer made the endorsement Ex.PW1/B on the rukka. Ct. Pradeep(PW4) SC No.155/17 State Vs. Shahid @ Fatti etc. Page 4 of 38 produced 5 pullandas alongwith FSL form and carbon copy of seizure memo to SHO Inspector Sanjeev Kumar (PW10), who after verifying the facts from Ct. Pradeep, counter sealed the pullandas with the seal of SK and also put his seal impression on FSL form. SHO Inspector Sanjeev Kumar (PW10) wrote particulars of the case on all the pullandas, relevant documents, signed the same and deposited entire case property alongwith carbon copy of seizure memo and FSL form in malkhana vide entry no.198/2117, Ex. PW6/A. SHO Inspector Sanjeev Kumar (PW10) also recorded DD no.6A dated 16.02.2017 regarding the proceedings conducted by him as Ex. PW10/C.
6. After registration of FIR, Ct. Pradeep (PW4) handed over copy of the FIR and rukka to SI Vishvendra (PW7), who was appointed as second IO. Second IO reached at the spot i.e. near Mohalla clinic in front of Red Cross Hospital, Dilshad Garden Delhi where first IO (PW2) alongwith other staff members met him. First IO (PW2) apprised second IO regarding facts of the case; second IO prepared site plan, Ex. PW7/A at the instance of first IO. First IO also handed over the accused, seizure memo in original and the carbon copy of the notice u/s. 50 NDPS Act to second IO and thereafter he left the spot.
7. Second IO put the details of FIR on both the documents i.e. seizure memo and carbon copy of notice; interrogated the accused SC No.155/17 State Vs. Shahid @ Fatti etc. Page 5 of 38 Shahid @ Fatti; arrested the accused vide arrest memo Ex. PW3/A and conducted his personal search vide memo Ex. PW3/B. From personal search of the accused, Rs. 84/ in cash and one notice u/s. 50 NDPS Act (Ex. PW7/C) were recovered. Disclosure statement of accused was recorded, which is Ex. PW3/C. Search for associates of accused Shahid @ Fatti was made but in vain.
8. On 17.02.2017, Second IO had sent intimation u/s. 57 NDPS Act, Ex. PW10/D regarding seizure and arrest of accused Shahid @ Fatti to the higher officials i.e. SHO/PW10 Inspector Sanjeev Kumar who forwarded the same to ACP. Ct. Jagbir (PW5) on the directions of second IO collected sealed pullandas from Malkhana PS Seemapuri vide RC No. 47/21/17, Ex. PW6/A1 and got deposited the same at FSL Rohini; collected the acknowledgement receipt and handed over the same to MHC(M), which is Ex. PW6/B (however, same appears to have been inadvertently not marked on the document).
9. On 02.03.2017, second IO (PW7) rescued two Drug Addict Juveniles namely Mehtab and Irfan; he examined them and recorded their separate statement. Both of them disclosed name of accused Shahid@Fatti, Salauddin @ Chaudhary, Sarafat and Naeem Chira as the sellers of Heroin to them. Both of them were produced in CWC, Dilshad Garden where their version was recorded. Their SC No.155/17 State Vs. Shahid @ Fatti etc. Page 6 of 38 medical examination was conducted at GTB Hospital and both of them were sent to SPYM.
10. On 02.03.2017, accused Salauddin @ Chaudhary was arrested on the basis of secret information; whereas Sharafat was arrested on 11.03.2017. On 18.05.2017, accused Naeem Cheera was also apprehended and arrested at the instance of secret informer. However, supplementary challan qua the said accused was not filed before this court. Section 29 NDPS Act and Section 77 of JJ Act were added. Statements of witnesses were recorded and on completion of investigation, chargesheet was filed in the Court.
11. After hearing Ld. counsel for accused persons and Ld. Addl PP for the State, charge U/s 21 NDPS Act,1985 was framed against accused Shahid@Fatti, whereas separate charge under Section 77 of Juvenile Justice Act (Care & Protection of Children) Act, 2015 was framed against accused Salauddin @ Chaudhary and Sharafat to which they pleaded not guilty and claimed trial.
12. In order to prove its case, prosecution has examined as many as 10 witnesses.
Formal evidence:
13. PW1 ASI Tahir Hussain was working as Duty Officer on 16.02.2017 from 12.00 a.m./midnight to 8.00 a.m. He had recorded FIR No. 84/17 and proved copy of the FIR as Ex.PW1/A. He made SC No.155/17 State Vs. Shahid @ Fatti etc. Page 7 of 38 endorsement Ex.PW1/B on the Rukka. He also lodged DD entry no. 5A in the DD register in this regard and proved the same as Ex PW 1/C. PW5 Ct. Jagbir Singh had collected Pulandas on 17.02.2017 and deposited the same at FSL Rohini.
14. PW6 HC Rohtash was working as MHCM at PS Seema Puri at the relevant time. On 16.02.2017, SHO Insp. Sanjeev Kumar called him to his office and handed over 5 sealed Pulandas with seal of BS and SK, FSL form and carbon copy of seizure memo; he deposited the same and made entry from point X to X1 in register No. 19 Ex.PW6/A. Next day, he handed over 3 sealed Pulandas along with Road Certificate Ex.PW6/A1 to Ct. Jagbir and made entry from point Y to Y1 in register no. 19 Ex.PW6/A. Ct. Jagbir handed over acknowledgement of case acceptance, which is Ex.PW6/B(not marked on the document). On 15.09.2017, result of FSL was received and he made entry from point Z to Z1 in register no. 19 Ex.PW6/A.
15. PW10 Insp. Sanjeev Kumar was the SHO, PS Seema Puri at the relevant time. He deposed that on 15.02.2017 at about 11.50 p.m., SI Brijveer came to his office along with a secret informer, who disclosed about secret information; he on being satisfied transmitted the information to ACP, who directed him to proceed in the matter. First IO SI Brijveer recorded the said information vide DD No. 114B SC No.155/17 State Vs. Shahid @ Fatti etc. Page 8 of 38 Ex PW10/A and produced the copy thereof before him. SI Brijveer along with HC Latafat and Ct. Pradeep left the PS with IO kit, field testing kit for necessary action vide DD no. 3B Ex.PW10/B. At about 6.15 a.m., Ct. Pradeep came and produced 5 sealed Pulandas along with FSL form and carbon copy of seizure memo. He put his counter seal of SK on the Pulandas, FSL form and got deposited the same in the Malkhana. He lodged DD no. 6A Ex.PW10/C regarding the proceedings conducted by him. Later, on the same day, he had received report under Section 57 of the NDPS Act, which is Ex.PW10/D.
16. PW8 Ct. Prince is a witness to arrest of accused Salauddin @ Chaudhary. He testified that on 02.03.2017, he joined investigation with SI Vishvendra, who had received a secret information about arrival of coaccused. He along with IO and secret informer reached DLF Mor from where coaccused Salauddin was arrested vide memo Ex.PW7/A, his personal search was conducted vide memo Ex.PW7/B and disclosure statement of coaccused Salauddin was recorded vide memo Ex.PW7/C. PW9 Ct. Mohit had joined investigation with SI Vishvendra and a secret informer on 11.03.2017 and coaccused Sharafat was arrested from near Jama Masjid, Old Seema Puri at the pointing out of secret informer. Co accused Sharafat was arrested vide memo Ex.PW9/A, his personal SC No.155/17 State Vs. Shahid @ Fatti etc. Page 9 of 38 search was conducted vide memo Ex.PW9/B and his disclosure statement was recorded vide memo Ex.PW9/C. MATERIAL/RECOVERY WITNESSES:
17. PW2 SI Brijveer Singh is the first IO in the instant case.
PW3 HC Latafat Ali and PW4 Ct Pradeep Sharma were part of the raiding party with PW2. The examination in chief of PW1 SI Brijveer is not being repeated herein as he deposed on the line of story of prosecution, which has been narrated hereinabove.
18. PW3 HC Latafat Ali and PW4 Ct Pradeep Sharma though deposed on the line of prosecution but did not disclose the complete facts, which they admitted only upon being asked by Ld. Addl. PP for the State. Their testimony is not being repeated herein for the sake of brevity. However, their admission of facts upon being asked by ld. Addl PP for the State is being narrated in brief. Both, PW3 HC Latafat Ali and PW4 Pradeep Sharma admitted that first IO SI Brijveer Singh (PW2) had taken IO kit, weighing machine, field testing kit when they had left for the spot alongwith secret informer. It was further admitted that public persons were asked to join the raiding party after disclosing the secret information to them. It was further admitted that accused was holding polythene bag in his right hand when he was coming from the side of GTB road; the SC No.155/17 State Vs. Shahid @ Fatti etc. Page 10 of 38 proceedings were conducted by the first IO regarding apprising the accused of his right under section 50 NDPS Act; refusal by the accused; writing of refusal on carbon copy of notice by the First IO; signing of reply by the accused; marking of transparent polythene having material from 17 pudiyas as Mark A; drawing of samples and preparation of pullandas as Mark B1 and B2; another polythene having 280 gm heroine was marked as Mark B.
19. PW4 Ct Pradeep Sharma further admitted upon being asked by Ld. Addl PP for the State that FSL form was filled at the spot; seal impression of BS was also affixed on FSL form; sealed pullandas were taken into police possession vide seizure memo Ex PW2/B; SI Brijveer handed over the tehrir along with FSL form, 5 sealed pullandas, carbon copy of seizure memo to him with a direction to hand over the Tehrir to DO, PS Seemapuri and 5 sealed pullandas, FSL Form as well as carbon copy of seizure memo to SHO; site plan Ex. PW7/A was prepared by the second IO; first IO left the spot; thereafter second IO put the details of FIR on both the documents i.e. seizure memo and carbon copy of notice; notice u/s. 50 NDPS Act (Ex. PW7/C) was recovered from personal search of the accused; disclosure statement of accused Ex PW3/C was recorded; search for associates of accused Shahid @ Fatti was made but none of them was apprehended.
SC No.155/17 State Vs. Shahid @ Fatti etc. Page 11 of 3820. The crossexamination of material witnesses and the formal witnesses shall be discussed while dealing with rival contentions of the parties.
ARGUMENTS RAISED BY SH. R.K. KOCCHAR, LD.
COUNSEL FOR THE ACCUSED SHAHID@FATTI AND SHARAFAT; SH. RIZWAN LD. COUNSEL FOR ACCUSED SALAUDDIN AND SH. VIKAS KUMAR, LD. ADDL. PP FOR THE STATE
21. Ld. counsel for the accused has argued that there was no compliance of section 50 of the NDPS Act; public witnesses were present at the spot but no effort was made to join them in the raid or recovery; FSL form was not sent to FSL, Rohini along with Pulandas; number of pulandas sent to FSL is also not clear and entry is register no. 19 regarding deposit of pulandas and FSL form is repetition of seizure memo. He further argued that no handing over or taking over memo of the seal was prepared; no separate DD entry regarding weighing machine and field testing kit was made; PW10 Inspector Sanjeev Kumar admitted that field testing kit was not available in the PS on the intervening night of 15/16.02.2017 and volunteered that it was borrowed from Narcotic Cell, Crime Branch by the IO whereas as per testimony of First IO, he got it issued from the Malkhana. He further argued that the secret informer was not produced before ACP;
SC No.155/17 State Vs. Shahid @ Fatti etc. Page 12 of 38accused Shahid @ Fatti was known to first IO and there was no necessity of secret informer identifying the accused; there are contradictions in the testimony of recovery witnesses, which demolish the case of prosecution. It is further argued that juveniles, at whose instance other coaccused persons were arrested, have not been examined by the prosecution. It is thus urged that accused are entitled for the acquittal thereof.
22. On the other hand, Ld. Addl PP for the State has submitted that evidence of the recovery witnesses is coherent as well as cogent and no material contradictions have crept in the same; there was due compliance of provisions of NDPS Act, 1985; accused are drug peddler by profession against whom prosecution has succeeded in proving its case.
I. COMPLIANCE OF NOTICE U/S 50 OF NDPS ACT
23. It is submission of ld. Counsel for the accused that the prosecution has not complied with the requirement of Section 50 of NDPS Act, 1985. On the other side, Ld. Addl. PP for State submitted that recovery of Heroin was made from the polythene, which the accused Shahid @ Fatti was carrying, therefore, compliance of Section 50 of NDPS Act, 1985 was not mandatory.
SC No.155/17 State Vs. Shahid @ Fatti etc. Page 13 of 3824. Before proceeding further, it is necessary to consider whether compliance of Section 50 NDPS Act, 1985 was required to be done in case of recovery of contraband from the bag and not from the person of the accused.
25. In State of Himachal Pradesh v Pawan Kumar 1 (2005) 4 SCC 350, a three judge Bench of Hon'ble Apex Court held that the search of an article, which was being carried by a person in his hand, or on his shoulder or head, etc., would not attract Section 50 of NDPS Act, 1985.
26. With regard to compliance of Section 50 NDPS , the Hon'ble Apex Court in "State of Rajasthan v. Parmanand", (2014) 5 SCC 345, has observed as under: "12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand's bag was searched.
From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted.
Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
SC No.155/17 State Vs. Shahid @ Fatti etc. Page 14 of 3827. It is explicit from the reading of the aforesaid judgments that noncompliance of Section 50 of NDPS Act has to be ignored in cases where recovery of contraband was not effected from person of the accused. It appears at the first blush that compliance of Section 50 of NDPS Act, 1985 is not mandatory in the instant case as it was a case of chance recovery and the contraband was recovered from the polythene carried by the accused in his hand. Undoubtedly, the polythene would not be included within the ambit of "person" used in Section 50 NDPS Act, 1985. In other words, the compliance of Section 50 NDPS Act, 1985 is not required if the person of the accused is not searched at all. However, in the instant case, testimony of IO SI Brijveer Singh(PW2) is that he disclosed the secret information to the accused and stated that his search was required. He further stated that accused had refused for his search before GO or Magistrate and asked him to take the search. Even PW3 HC Latafat Ali testified that SI Brijveer offered search of the raiding party to the accused prior to search of the accused. Upon being asked by Ld. Addl. PP for the State, PW3 further admitted that SI Brijveer stated to the accused that he was having Heroin in his possession and for the said reason his personal search was required. PW4 Ct. Pradeep Sharma, another recovery witness, stated that accused was searched SC No.155/17 State Vs. Shahid @ Fatti etc. Page 15 of 38 and he was having a Panni (polythene) in his right hand. Testimonies of PW2, PW3 & PW4 make it abundantly clear that personal search of the accused was conducted before recovery of Heroin from him. Therefore, compliance of Section 50 of NDPS Act, 1985 was mandatory in the instant case.
28. In Sikodh Mahto vs. Prabhu Mahto 262 (2019) DLT 74, the Hon'ble High Court of Delhi has held that even where accused declined offer under Section 50 of the NDPS Act to get his search conducted in presence of a Magistrate or Gazetted Officer, raiding team was required to have search of the accused conducted in presence of Magistrate or Gazetted Officer and this failure on the part of raiding team vitiates very search and seizure of the said material and accused is entitled for acquittal. In the said case, reliance was placed on "Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609 and Arif Khan vs. State of Uttrakhand IV (2018) SLT 32.
29. In the statement under Section 313 Cr.PC, the accused stated that though notice under Section 50 NDPS Act Ex.PW2/A bears his signature at point B, nevertheless his signatures were obtained by the police on the blank paper in the PS.
30. As per first IO (PW2), search of the accused was not con ducted in presence of a G.O. or a Magistrate as he had refused. Per SC No.155/17 State Vs. Shahid @ Fatti etc. Page 16 of 38 tinently, case of the prosecution itself is that the accused claimed him self to be less literate and knew to put his signature only. In this sce nario, to ensure fair investigation visavis right of the accused, it was desirable, which is also the mandate of the aforesaid judgments that search of the accused ought to have been carried out in the pres ence of GO or Magistrate.
31. It is also relevant to note that there is overwriting of DD No. 3B as well as its date on the notice under section 50 NDPS Act. In crossexamination dated 22.01.2019, PW3 HC Latafat Ali admitted that there is overwriting at point X1 and X2 in the notice u/s 50 NDPS Act and seizure memo. No explanation has been offered by the prosecution for the said overwriting on the notice u/s 50 NDPS Act. The said overwriting is also not initialed by the First IO.
32. From the above discussion, it is clear that compliance of Section 50 of the NDPS Act has not been done, which is fatal to the case of prosecution.
II. RECORDING OF DD ENTRY 3B DATED 16.02.2017, Ex PW10/B.
33. Ld. counsel for the accused has stated that there is manipulation in entry no. 3B, which is with regard to departure of the raiding party from PS to the spot with electronic weighing machine, SC No.155/17 State Vs. Shahid @ Fatti etc. Page 17 of 38 field testing kit and IO kit as duty officer has denied that first IO made said DD entry in his presence, which raises doubt upon the case of the prosecution. It is further submitted that there is overwriting of DD no. 3B on the notice under section 50 NDPS Act Ex.PW7/C and its carbon copy Ex PW2/A, seizure memo Ex. PW2/B, which smells foul play in the case of the prosecution.
34. Vide DD No. 3B Ex.PW10/B, SI Brijveer, Ct. Pradeep, HC Latafat and secret informer left the Police Station along with IO kit, Field Testing Kit and Electronic Weighing Machine to the spot. Duty Officer/PW1 ASI Tahir Hussain in his crossexamination stated that he had not made DD entry regarding departure of HC Latafat Ali, Ct. Pradeep and SI Brijveer and that he could not recall when SI Brijveer had done arrival or departure entry. In his further cross examination, PW1 stated that SI Brijveer and HC Latafat Ali had not come to police station in his presence. He could not recall the name of MHCM posted on 16.02.2017. However, in reexamination by Ld. Addl PP, after seeing DD No. 3B dated 16.02.2017, he admitted that the entry was made by SI Brijveer but stated that the said entry was not made by SI Brijveer in his presence. He further stated that SI Brijveer had left the PS alongwith Ct. Pradeep and HC Latafat.
35. Testimony of Duty Officer/PW1 ASI Tahir Hussain envisage that in reexamination, he has improved upon his statement SC No.155/17 State Vs. Shahid @ Fatti etc. Page 18 of 38 made with respect to departure entry no. 3B. It is really strange that the DO in crossexamination stated that SI Brijveer, HC Latafat had not come to PS during his duty hours and, in the same breath, stated otherwise in reexamination that they had left the PS on that day. It also does not appear to be plausible that the DD entry 3B was made by SI Brijveer in his absence when he was the only duty officer present on that day and DD registers were obviously under his control. Further, explanation given by PW1 ASI Tahir Hussain in re examination that he stated otherwise in cross examination due to some confusion does not inspire confidence. In addition, overwriting on notice under section 50 NDPS Act and seizure memo regarding mentioning of DD No. 3B as well as its date also raise suspicion about the manner and mode of recording of aforesaid DD Entry. Therefore, manipulation in recording of departure entry cannot be ruled out.
III. NON JOINING OF PUBLIC PERSONS IN THE INVESTIGATION
36. It is submission of Ld. Counsel for the accused that non joining of public person in the investigation is fatal to the case of prosecution. On the other side, Ld. Addl. PP for the State submitted that sincere efforts were made to join public persons SC No.155/17 State Vs. Shahid @ Fatti etc. Page 19 of 38 preapprehension of accused but none agreed to join. It is also submitted that mere nonjoining of independent witnesses is no ground to discard the testimony of members of the raiding team, who were discharging their duties.
37. Before considering the rival contentions of the parties, it is apt to peruse the testimony of recovery witnesses in this regard.
38. PW2 SI Brijveer in his crossexamination stated that gate of Red Cross Hospital was open at that time but no person was present on the outer gate of hospital; no person from the Hospital was called to join the investigation; there is a petrol pump situated at a distance of 200 meters from the spot; Gauri Shankar Temple was at a distance of 100 meters from the spot; Mohalla clinic is situated opposite Red Cross Hospital; Residential buildings are situated at a distance of 250 meter from the spot; and had not called any public persons from the aforesaid places to join the investigation as nobody was present at that time. Similarly, PW3 HC Latafat Ali in his crossexamination stated that distance between Gauri Shankar Mandir and spot is 10 steps and spot is in front of Gate of Red Cross Hospital, which was open at that time; public persons were not called from the Gauri Shankar Mandir or from J & K Pocket, Dilshad Garden to join the raiding party;
SC No.155/17 State Vs. Shahid @ Fatti etc. Page 20 of 38Chowkidar of the Hospital was standing in the inner gate and IO had not called him to join the raiding party.
39. PW4 Ct. Pradeep Sharma in his crossexamination stated that Red Cross Hospital was opened; IO had not called any person from the Hospital nor did he obtain their signatures on any document regarding recovery and arrest of the accused; IO had not given any notice to the aforesaid persons in his presence, who did not join the investigation; name and address of such persons were not noted by the IO. He further testified that the raiding team had reached at the spot at about 1.00 a.m. and remained there upto 1011.00 a.m.
40. As per settled law, it is not proper to reject the case of prosecution for want of corroboration by independent witnesses, if the case made out, is otherwise true and acceptable. It has been held by the Hon'ble Apex Court in "Ajmer Singh Vs. State of Haryana", (2010) 3 SCC 746 that nonjoining of independent witness is not fatal to the prosecution case particularly when efforts were made by the investigating party to join public witness but none was willing. The Hon'ble Apex Court in the judgment, reported as "Kashmiri Lal Vs. State of Haryana" Manu/SC/0568/2013, has observed that ordinarily, the public at large show their disinclination to come forward to become witnesses but if the testimony of the police officer is found to SC No.155/17 State Vs. Shahid @ Fatti etc. Page 21 of 38 be reliable and trustworthy, the court can definitely act upon the same. It is further observed that if in the course of scrutinizing the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him. This is also based on the principle that quality of the evidence weighs over the quantity of evidence, which is required for conviction and that can be based even on the testimony of sole eye witness.
41. Reference is also made to the judgment of "Mohd. Masoom Vs. State of NCT of Delhi", Criminal Appeal 1404/11, decided by Hon'ble Delhi High Court on 09.04.2015 regarding the nonjoining of public witnesses as : "11. In the instant case, despite availability of independent public witnesses, no genuine and sincere efforts were made by the Investigating Officer to associate them. The explanation offered by the Investigating Officer does not inspire confidence. Secret information was received at around 09.30 a.m. at Crime Branch, Chanakyapuri.
Allegedly, A2 was to receive a huge consignment of Heroin / smack at IGI Airport from Afghan Nationals who were to arrive in India by Afghan National flight at about 12.30 p.m. or thereafter. Apparently, the police officials had sufficient time to make sincere efforts to associate independent public witnesses in the raiding team. However, nothing was done. For the first time, SC No.155/17 State Vs. Shahid @ Fatti etc. Page 22 of 38 when the raiding team reached Lajpat Nagar at about 11.30 a.m., some passersby were allegedly asked to join the raiding party. They purportedly declined to participate taking the plea that they were busy in their own work. It has come on record that there were number of shops at Lajpat Nagar, where the police party had followed A2s car. None of the shopkeepers was requested to be a part of the raiding team. Again, at 06.30 p.m., an attempt was allegedly made at the airport to join some public persons in the raiding team but none was willing and they left without disclosing their names and addresses. It is a matter of record that the raiding team remained at the spot till 03.00 a.m. It is strange that for about thirteen hours the Investigating Agency was not able to associate even a single independent public witness at any stage of the investigation. Admitted position is that there were number of police officials, government / private employees, Traffic Police Control Room, Prepaid Taxi booth, CISF officials and shopkeepers, etc. at the crowded and busy airport. It is not explained as to why only the passersby were requested to join the investigation. Even their names or addresses were not recorded and no action whatsoever was taken for their refusal to assist in the investigation. Apparently, the Investigating Agency were not interested to make any independent witness to be a part of the raiding team."
42. Adverting to the facts of the present case, the IO/ PW2 SI Brijveer admittedly did not make any sincere efforts to join any SC No.155/17 State Vs. Shahid @ Fatti etc. Page 23 of 38 public witness in the recovery or arrest of accused. Even the second IO did not call any public person to witness the proceedings conducted by him. The fact cannot be overlooked that the spot is in front of Red Cross Hospital; Mohalla clinic is on opposite side of Red cross Hospital; Gauri Shankar Mandir was situated around 100 meters from the spot; Petrol pump was within the distance of 200 meters from the spot, and despite that, the IO did not try to call any person either from Red Cross Hospital, Mohalla Clinic, Gauri Shankar Mandir or Petrol Pump to join the investigation process in preapprehension as well as postapprehension of the accused. As per case of the prosecution, accused Shahid @ Fatti was apprehended by the first IO at 2.35 a.m.; second IO SI Vishwender reached the spot at about 8.00 a.m. and remained there till 12.30 p.m., thus entire proceedings continued for about 10 hours , but no efforts were made either by first IO or second IO to join public person in the investigation except asking passersby and that too only once i.e. prior to apprehension of the accused. The second IO/PW7 Vishwender testified in cross examination that he did not record statement of any person at the spot or that from Red Cross Hospital or that he had not obtained signature of any public person on the personal search, arrest memo, site plan and disclosure statement of the accused. There appears to be lack of diligence on the part of first as well as second IO to join the public SC No.155/17 State Vs. Shahid @ Fatti etc. Page 24 of 38 person in the proceedings conducted by them. The entire process continued for about 10 hours, IOs ought to have made efforts for joining of public witnesses in the investigation from the Red Cross Hospital or Mohalla clinic or Gauri Shankar Mandir, during the investigation process. It appears that no genuine and sincere efforts were made by the Investigating Officer to associate independent public witnesses in the investigation process. The probability that the investigating agency was not inclined to join the public witness in the investigation cannot be ruled out.
IV. ISSUANCE OF ELECTRONIC WEIGHING MACHINE AND FIELDTESTING KIT.
43. It is the submission of Ld. counsel for the accused that the testimonies of the prosecution witnesses regarding Field Testing Kit and electronic weighing machine are full of contradictions and put dent in the story of prosecution. In this regard, one may peruse the testimony of relevant prosecution witnesses. PW2 SI Brijveer deposed in his examinationinchief that he along with other police staff and IO kit, weighing machine and fieldtesting kit left the PS. In his cross examination, he stated that field testing kit was issued to him from the Malkhana, PS Seema Puri. He further stated that field testing kit was in IO bag. He could not tell when he kept field testing kit in the bag.
SC No.155/17 State Vs. Shahid @ Fatti etc. Page 25 of 38He could not tell the make and expiry date of fieldtesting kit. He stated that he is not aware as to from where the fieldtesting kit was procured and kept in the malkhana. He further stated that weighing machine was in the IO kit but he denied awareness about make of the weighing machine or that when the weighing machine was procured at PS. He further testified that he had not deposited the fieldtesting kit and weighing machine in the Malkhana.
44. PW3 HC Latafat Ali and PW4 Ct Pradeep Sharma admitted upon being asked specifically by Ld. Addl PP that SI Brijveer had taken IO kit, field testing kit and electronic weighing machine while leaving the PS for the spot. PW4 Ct. Pradeep Sharma in his crossexamination stated that in his presence, IO had not taken the fieldtesting kit and weighing machine from the Malkhana. He stated that field testing kit was of glass but the next moment he added that he did not remember. He could not tell the size, make or description of fieldtesting kit. He did not remember as to how many rows and columns were there in the fieldtesting kit. He did not remember as to from where IO procured the field testing kit. He did not remember whether IO had deposited the fieldtesting kit in the malkhana after it was used at the spot. PW7 SI Vishwender (second IO) in his crossexamination stated that he had not collected any details as to when the fieldtesting kit and weighing machine were SC No.155/17 State Vs. Shahid @ Fatti etc. Page 26 of 38 issued by the MHCM and that he had not recorded the statement of first IO in that regard.
45. PW10 Insp. Sanjeev Kumar, SHO PS Seema Puri, altogether introduced a new story by stating that the fieldtesting kit was not available in the PS on 15/16.02.2017. He added that field testing kit was borrowed from Narcotic Cell, Crime Branch by the IO. He stated that he has not confirmed whether SI Brijveer procured it from Narcotics Cell or not. He is not aware when IO got issued the fieldtesting kit from Narcotics Cell.
46. The aforesaid testimonies of the members of raiding team and SHO creates more confusion than clarity as to whether the Field testing Kit and Electronic weighing machine were in IO Bag, if so, when and from where the IO got them issued or that Fieldtesting Kit and Electronic weighing machine were got issued from Malkhana PS or that the said items were procured from Narcotic Cell. No clear picture is depicted from the testimony of aforesaid witnesses. Had field testing kit been issued from the Malkhana, MHCM would have definitely made entry in his register. No such entry has been brought on record by the MHCM, PS Seema Puri. If the same had been borrowed from Narcotics Cell, there could have been some entry in that regard, which has also not been placed on record. PW2 has contradicted SHO PS Seema Puri by saying that field testing kit was in SC No.155/17 State Vs. Shahid @ Fatti etc. Page 27 of 38 the IO bag, whereas SHO stated that it was borrowed by the IO from Narcotics cell. Even the IO had not deposited the fieldtesting kit and weighing machine in the Malkhana after using the same. Apparently, DD No. 3B Ex.PW10/B records that SI Brajveer, Ct. Pradeep, HC Latafat and secret informer left the Police Station along with IO kit, Field Testing Kit and Electronic Weighing Machine to the spot. Meaning thereby, the said fieldtesting kit and electronic weighing machine were not part of IO Kit. As stated hereinabove, the manipulation in the said DD Entry 3B can also be not ruled out. It remains a mystery as to from where these two items were procured by the IO, which raises doubt about the case of prosecution.
V. HANDING AND TAKING OVER MEMO OF SEAL
47. PW2 SI Brijveer stated that after use, he handed over the seal to PW4 Ct. Pradeep Sharma. PW4 Ct. Pradeep Sharma also testified that seal after use was handed over to him. PW2 SI Brijveer in his crossexamination recorded on dated 11.03.2019 stated that seal was returned to him by Ct. Pradeep in the evening of 16.02.2017 but he had neither made any entry in that regard nor prepared any handing over memo of seal. He denied the suggestion that seal was neither SC No.155/17 State Vs. Shahid @ Fatti etc. Page 28 of 38 handed over to Ct. Pradeep nor returned to him. Meaning thereby, no handing /taking over memo of seal was prepared, which creates doubt over the prosecution case. In the absence of any handing over/ taking over memo of seal, tampering with the case property cannot be ruled out.
VI. FSL FORM AND SEALED PULANDAS SENT TO FSL, ROHINI
48. It has been argued that entry in register no. 19 is repetition of seizure memo; FSL form and sealed pulandas were not deposited in malkhana; there is discrepancy in the sending of number of Pulandas to the FSL, Rohini and there is no record of sending of FSL form alongwith sealed pulandas to FSL, Rohini. On the other side, Ld. Addl. PP for the State has argued that FSL result has been admitted as Ex A1 and thus, the aforesaid contentions have no significance.
49. In this regard, one may peruse the testimony of PW5 Ct. Jagbir Singh who deposed that he had collected 5 sealed pulandas on 17.02.2017 from the Malkhana PS Seema Puri on the directions of IO in the present case and deposited the same at FSL, Rohini vide Road Certificate. However, on being specifically asked by Ld. Addl PP for the State, he admitted that he had deposited 3 sealed pulandas vide RC No. 47/21/17 along with FSL form at FSL, Rohini. In cross SC No.155/17 State Vs. Shahid @ Fatti etc. Page 29 of 38 examination by Ld. defence counsel, he stated that he had not stated to the IO regarding deposit of FSL form along with Pulandas. He also could not tell about the seal impressions, which were on the Pulandas. He stated that he had not taken any document with Pulandas and road certificate. Even in reexamination by Ld. Addl PP for the State, he reiterated that he had collected sealed Pulandas only along with road certificate. Upon putting specific question to the witness as to which of the two aforesaid statements is correct i.e. collecting FSL form along with sealed Pulandas which he admitted in examination by Addl PP or otherwise which he stated in crossexamination by defence counsel. He again reaffirmed that he had collected sealed pulandas and road certificate only. He denied the suggestion that he is giving incorrect version regarding FSL in order to save the accused. He was also further crossexamined by defence counsel whereby he admitted his statement U/s 161 Cr.P.C. dated 17.02.2017 as Ex.PW5/DA. He admitted the suggestion that he had made said statement to SI Vishwendra on 17.02.2017 wherein it is stated that he had taken 5 pulandas from MHCM on 17.02.2017.
50. Perusal of the testimony of PW5 Ct. Jagbir Singh shows that he had not taken FSL form along with the Pulandas. Further, his testimony is not in tune with the road certificate Ex.PW6/A1 inasmuch as he is stated to have taken 5 sealed pulandas from MHCM, whereas SC No.155/17 State Vs. Shahid @ Fatti etc. Page 30 of 38 road certificate mentions about 3 sealed pulandas only. There is no mention of taking FSL along with sealed pulandas even in the Road certificate. In this regard, one may also peruse the testimony of MHCM HC Rohtash, who was examined as PW6 by the prosecution. He testified that 3 sealed pulandas along with road certificate were handed over to Ct. Jagbir to deposit at FSL, Rohini vide Road Certificate Ex.PW6/A1, bearing his signature at point A. MHCM also did not whisper anything about sending of FSL form along with sealed pulandas vide road certificate.
51. It is pertinent to mention herein that road certificate also bears signature of Ct. Jagbir (PW5). However, PW5 Ct. Jagbir in his crossexamination by ld. defence counsel stated that MHCM had not obtained his signature on the road certificate. Said testimony of PW5 Ct. Jagbir is again not in consonance with the road certificate, Ex.PW6/A1. Even entry at point Y to Y1 on the Malkhana register no. 19 Ex.PW6/A vide which samples were sent to FSL through PW5 Ct. Jagbir also does not mention about sending of FSL form along with sealed pulandas.
52. Thus, it becomes crystal clear from the testimony of PW 5 Ct. Jagbir Singh and MHCM/PW6 HC Rohtash read in conjunction with road certificate that PW5 had not collected FSL Form alongwith sealed pulandas. Further, number of pulandas sent to FSL is also not SC No.155/17 State Vs. Shahid @ Fatti etc. Page 31 of 38 clear, which as per PW5 Ct. Jagbir Singh were 5, whereas as per MHCM/PW6 HC Rohtash, road certificate and FSL result, number of pulandas sent to FSL were 3. Even the entry regarding deposit of Pulandas at Sl No. 198/2117 in the Malkhana register is reproduction of the seizure memo and it doesn't mention about the deposit of any pullanda, FSL form and copy of seizure memo. It is well settled law that in case FSL form is not deposited in the Malkhana or with the FSL, the case of the prosecution will be highly doubtful. In the case of Radha Kishna Vs. State, 87(2000) DLT 106, High Court has explained the importance of ensuring that the FSL form is duly sent with sample for testing. In para '26' of the Judgment, it was explained as: It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central Forensic Science Laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instance case, this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of SC No.155/17 State Vs. Shahid @ Fatti etc. Page 32 of 38 tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/police station".
In Radha Kishan, after referring to Delhi High Court Rules, Part III Chapter 18B, regarding proper proof of custody of articles, it was held by this Court that the evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched. To the same effect are the judgments in Moolchand and Phool Kumar. Further, it has been held in Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT 577, that oral evidence which is contrary to the documentary evidence ought not to be relied upon. In the instant case, despite the prosecution witnesses asserting that the FSL form was prepared, not only is the FSL form unavailable SC No.155/17 State Vs. Shahid @ Fatti etc. Page 33 of 38 on the record but the photocopies of the store room register and road certificate throw considerable doubts whether the FSL form was in fact prepared and dispatched. These documents are unreliable. For the above reasons, it is held that in the instant case the noncompliance with the mandatory requirement of preparation and dispatch of the FSL form with the sample sent for testing is fatal to the case of the prosecution.
53. In the instant case also, there is considerable doubt as to whether the FSL form was prepared and sent to FSL with the sample for testing, which is fatal to the case of prosecution. Notwithstanding that FSL result is admitted document as Ex A1, same does not rule out the possibility of tampering of case property sent to FSL for examination as there is discrepancy in oral testimony of PW5 Ct. Jagbir Singh and MHCM/PW6 HC Rohtash read in conjunction with road certificate and Register No. 19. Further, one of the recovery witnesses, namely, PW4 Ct. Pradeep Sharma stated in his cross examination that samples were also taken out from the contents of 17 Puriyas by the IO but the other recovery witnesses including first IO (PW2) did not state anything about the samples drawn from the said 17 Puriyas. In other words, first IO PW2 SI Brijveer and PW3 HC Latafat Ali are silent on this aspect. In addition, FSL Result shows the different weight of sample than the quantity seized by the IO, which SC No.155/17 State Vs. Shahid @ Fatti etc. Page 34 of 38 has not been explained by the prosecution. As per the case of prosecution, Mark B1 was weighing 5 gm whereas as per FSL result, it was 5.73 gm approx. with polythene and rubber band. Similarly, Mark A was weighing 1.5 gm while as per FSL result, it was 1.28 gm approx. with zip lock polythene bag and rubber band.
54. The aforesaid contradiction in the testimony of prosecution witnesses coupled with the other discussed parameters hereinabove, shows the shoddy manner of carrying out the investigation.
Evidence qua accused Salauddin @ Chaudhary and Sharafat:
55. Charge under Section 77 of Juvenile Justice (Care & Protection of Children) Act, 2015 was separately framed against these two accused persons to the effect that they had given or caused to be given Narcotic Drug (Smack) to children.
56. Second IO PW7 SI Vishwendra has testified that on 02.03.2017, he rescued two Drug Addicts Juveniles, namely, Mehtab and Irfan and recorded their statement. Both the juveniles disclosed the name of accused Shahid @ Fatti, Salauddin @ Chaudhary, Sharafat and Naeem Chira as seller of Heroin to them. PW8 Ct. Prince is a witness to arrest of accused Salauddin @ SC No.155/17 State Vs. Shahid @ Fatti etc. Page 35 of 38 Chaudhary. He testified that on 02.03.2017, he joined investigation with SI Vishvendra, who had received a secret information about arrival of coaccused. He along with IO and secret informer reached DLF Mor from where coaccused Salauddin was arrested vide memo Ex.PW7/A, his personal search was conducted vide memo Ex.PW7/B and disclosure statement of coaccused Salauddin was recorded vide memo Ex.PW7/C. PW9 Ct. Mohit had joined investigation with SI Vishvendra and a secret informer on 11.03.2017 and coaccused Sharafat was arrested vide memo Ex.PW9/A from near Jama Masjid, Old Seema Puri at the pointing out of secret informer. His personal search was conducted vide memo Ex.PW9/B and his disclosure statement was recorded vide memo Ex.PW9/C. Both the rescued juveniles, namely, Mehtab and Irfan were not produced before the Court as witnesses. It is admitted case of the prosecution that at the time of arrest of coaccused Salauddin and Sharafat, nothing incriminating was recovered from them. Hence, there is no material or evidence on record to connect them with the charge levelled against them.
PRESUMPTION
57. From the conjoint reading of the provisions of Section 35 & 54 of NDPS Act, 1985, it becomes clear that if the accused is found SC No.155/17 State Vs. Shahid @ Fatti etc. Page 36 of 38 to be in possession of the contraband article, he is presumed to have committed the offence under the relevant provisions of the NDPS Act until the contrary is proved. According to Section 35 of the NDPS Act, the court shall presume the existence of mental state for commission of an offence and it is for the accused to prove otherwise. Of course, such presumption would only arise once the initial burden of establishing a link of the accused with the offence has been established.
58. The Hon'ble Apex Court in Noor Aga Vs. State of Punjab and Anr. (2008) 16 SCC 417 while upholding the constitutional validity of Section 35 observed that as this Section imposed a heavy reverse burden on an accused, the condition for the applicability of this and other related sections would have to be spelt out on facts and it was only after the prosecution had discharged the initial burden to prove the foundational facts that Section 35 would come in to play.
59. Applying the ratio of the aforesaid judgment to the facts of the present case, it is apparent that the prosecution has failed in discharging its initial burden of proving the link of the accused persons with the charges levelled against them, as such, the presumption under Section 35 NDPS Act would not arise.
SC No.155/17 State Vs. Shahid @ Fatti etc. Page 37 of 38CONCLUSION
60. In the instant case, it stands proved on record that there was no compliance of Section 50 of NDPS Act; no diligent efforts were made to join the public persons in the investigation; contradictions have crept in the testimony of prosecution witnesses as mentioned hereinabove regarding the material documents placed on record against the accused Shahid@Fatti. In view of the foregoing discussion, this Court is of the firm view that case of the prosecution against the accused Shahid@Fatti is highly doubtful. It is well settled law that benefit of doubt is always given to the accused. Further, there is no evidence against other two coaccused, namely, Salauddin @ Chaudhary and Sharafat. In view thereof, all the three accused namely Salauddin @ Chaudhary, Sharafat and Shahid @ Fatti are acquitted of charges levelled against them. File be consigned to record room after due compliance of Section 437A CrPC.
Digitally signed by MANJUSHA WADHWAMANJUSHA Location: Shahdara District, Karkardooma WADHWA Courts, Delhi Date: 2019.10.14 12:30:03 +0530 Announced in the open Court (MANJUSHA WADHWA) Dated: 11.10.2019 ASJ/Special Judge(NDPS)(Shahdara) Karkardooma Courts, Delhi SC No.155/17 State Vs. Shahid @ Fatti etc. Page 38 of 38