Delhi District Court
State vs . Ajay @ Sanjay on 27 August, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No. 141/14
FIR No. 161/12
P. S. Mangol Puri
U/S 20 NDPS Act
State
Vs.
Ajay @ Sanjay
s/o Vinod
R/o D513, Mangol Puri,
Delhi.
Date of institution of the case : 22.01.14
Date when final arguments concluded : 26.08.14
Date of pronouncement of judgment : 27.08.14
Appearances: Mr. Ashok Kumar, APP for the State.
Mr. Deepak Ghai, counsel for accused.
JUDGMENT
1. Accused has been forwarded by PS to face trial trial u/s 20 of NDPS Act for being in possession of 15 kg ganja.
2. Facts are that SI Jaspal Singh, Ct. Ampit and Ct.
State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 1 of23 Rajbir Singh were on patrolling duty on 28.04.12 and when they reached near Ramleela Ground, Mangol Puri, an informer gave them information that a person would come from the side of industrial area, Phase I, Mangol Puri after 3045 minutes and would go towards D Block with ganja. SI Jaspal Singh apprised the DO on telephone about the secret information and asked to tell SHO also. Thereafter, he asked 45 passers by to join the investigation but no one agreed and left the spot without disclosing their names and addresses. The police officials moved towards the destined spot i.e., Near MCD Park, Industrial Area, PhI and took position behind the wall. The informer pointed out towards a person at 8.10 pm coming from flyover side he was apprehended and he disclosed his identity as Ajay @ Sanjay. He was carrying a plastic katta on his head and another plastic katta was in his right hand. Notice u/s 50 of NDPS Act was served upon him but he reposed full faith in police. Ct. Ampit took the search of SI Jaspal Singh but nothing incriminating was recovered and thereafter, SI Jaspal Singh searched the kattas carried by the accused. The first katta was found State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 2 of23 containing 8 kg ganja and serial no.A was given to it and the second katta was containing 7 kg ganja and serial no. B was given to it. Two samples each of 500 gms were taken from the katta Mark A and katta Mark B and serial nos. C, D and E,F respectively were given to them. In the meantime SHO Gajender Kumar came to the spot and he also verified the facts from the accused. IO and SHO affixed their seals of JS and GK on all parcels and seal after use was handed over to Ct. Rajbir Singh. Case property and FSL form were seized and rukka was sent to PS through Ct. Ampit who got the FIR registered and further investigation was conducted by SI Sachin Mann. Sample parcels C & E were sent to the FSL and report Ex.EX that both were containing ganja.
3. Charge u/s 20 (b)(ii)(B) of NDPS Act was framed against the accused on 20.01.14 to which he claimed trial.
4. In order to substantiate the charge, prosecution examined 10 witnesses. Accused did not examine a single witness in his defence.
5. PW8 HC Desh Raj was doing the job of duty State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 3 of23 officer on 28.4.12. He deposed that on that day at 7.30 pm, he received information from SI Jaspal Singh on phone that he (SI Jaspal Singh) had received a secret information that a a person would come to industrial area, Phase I, Mangol Puri with ganja. On that information he registered DD NO. 34 A Ex.PW8/A and passed the information to SHO who instructed SI Jaspal Singh to proceed further. He further deposed that on the same day on 11.40 pm, he registered case FIR Ex.PW8/B on receipt of rukka brought by Ct. Ampit sent by SI Jaspal Singh and thereafter he registered DD NO. 37A regarding completion of process of registration of FIR.
PW5 Inspr. Gajender Kumar, SHO deposed that he was informed by DO on telephone on 29.04.12 at 7.40 pm that SI Jaspal Singh had received secret information that a person shall go to D Block via Industrial area Phase I with ganja. He instructed DO to ask SI Jaspal Singh to proceed further. He further deposed that he reached the spot near MCD Park PH.I at 9 pm where SI Jaspal Singh produced before him accused and two plastic kattas of ganja and he found State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 4 of23 the recovery genuine. Then he gave the description of the case property and samples separated. Sample and remnant ganja parcels and FSL form were sealed with the seal of JS by the first IO. Thereafter, PW5 further deposed, he fixed his own seal of GK on those articles which were taken into possession by SI Jaspal Singh vide memo Ex.PW3/B bearing his signatures at pt. B. He returned to PS with those articles, wrote FIR no. and case particulars on them and deposited in malkhana and registered DD NO.38A Ex.PW5/A. PW1 ACP Ved Prakash deposed that report Ex.PW1/A u/s 57 of NDPS Act regarding seizure of ganja from the accused Ajay @ Sanjay and his arrest was received in his office on 30.04.12 vide entry no. 2819 Ex.PW1/B. PW9 MHCM Mahavir deposed that Inspr.
Gajender Kumar deposited with him on 28.04.12 six exhibits having seals of GK and JS alongwith FSL form having the same seals and he made entry no. 5999 Ex.PW9/A in the register no. 19. He further deposed that on 23.05.12 he handed over 2 sample parcels in sealed condition to Ct. Satender vide RC No. 26/21/12 State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 5 of23 Ex.PW9/B for depositing in FSL and after deposit Ct. Satender handed him over receipt acknowledgment Ex.PW9/C. Remnant samples and FSL result were brought in malkhana by Ct. Dara Singh on 26.06.12. PW2 Ct. Satender also asserted that he had taken 2 sample pullandas from MHCM on 23.05.12 and deposited the same in FSL on the same day. Both these witnesses did not tamper with the case property until it was in their possession.
PW4 Mr. Srinarayan is Asstt. Director (Chemistry) FSL Rohini. He deposed that 2 cloth parcels were received in the laboratory from PS Mangol Puri on 23.05.12 and both were marked to him for chemical examination. Both parcels were bearing Mark C and E. He further deposed that seals on parcels were tallying with the specimen seals. Parcel C had 6 seals of GK and 6 seals of JS. Parcel E had four seals of GK and 3 seals of JS. He examined them from 11.06.12 to 19.06.12 and prepared report Ex.PX on 19.06.12 to the effect that both parcels were containing ganja.
PW10 SI Sachin Mann is the second IO to whom further investigation was assigned after registration of State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 6 of23 FIR. He deposed that on 29.04.12 at 12.15 - 12.30 am, Ct. Ampit handed him over in PS original rukka Ex.PW6/B and copy of FIR Ex.PW8/B and he alongwith Ct. Ampit reached the spot where he found SI Jaspal Singh, Ct. Rajbir Singh and accused Ajay. SI Jaspal Singh handed him over custody of relevant documents and accused and he prepared rough site plan Ex.PW3/C at the instance of SI Jaspal Singh. After interrogation he arrested the accused vide arrest memo Ex.PW3/D. Original notice Ex.P1 u/s 50 of NDPS Act was recovered in folded condition from his personal search and personal search memo Ex.PW3/E was prepared. Accused was sent for medical examination in the company of both constables. He further deposed that accused was interrogated in PS and his disclosure statement Ex.PW3/F was written. He prepared report Ex.PW1/A u/s 57 of NDPS Act on 29.04.12, sent it to ACP office after getting it forwarded from SHO. He recorded the statements of SHO, Ct. Ampit, Ct. Rajbir and SI Jaspal Singh. After dispatch of sample parcels to FSL he recorded the statements of MHCM and pullanda carrier. He tendered in evidence FSL report as Ex.PX.
State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 7 of23
6. PW3 Ct. Rajbir and PW7 Ct. Ampit are recovery witnesses. They were headed by PW6 SI Jaspal Singh who deposed that he alongwith those 2 constables was on patrolling duty on 28.04.12 vide DD no. 58B ExPW6/A. When they were present near Kala Mandir Cinema, Mangol Puri at 7.20 pm he received a tipoff from a sneaker that a person would go to D Block via industrial area Phase I with ganja. He further deposed that SHO was informed about the information and he formed a raiding party comprising of himself, secret informer, Ct. Ampit and Ct. Rajbir Singh on the instructions of SHO. Thereafter, he asked 45 persons to join the proceedings but none agreed and left the spot without disclosing their names and addresses. They proceeded towards MCD Park. The accused came from the side of Mangol Puri Flyover at 8.15 pm with two kattas one was on his head and other in his right hand. They tried to apprehend him at the instance of informer but seeing them coming towards him, he took "U" turn and tried to run away but he was overpowered. He further deposed that 45 public persons were requested to participate in the search State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 8 of23 procedure but they did not agree. Then he told the accused about the secret information, served and interpreted notice u/s 50 of NDPS Act that he had a legal right to be searched in the presence of Gazetted Officer or magistrate and if he wanted he can be searched in the presence of such officer. Carbon copy Ex.PW3/A of the notice was retained by him. The accused answered that he wanted to be searched by the police party. His refusal reply Ex.PW3/B was written by him. It is next stated on oath that Ct. Ampit took his search but nothing was recovered and hence, non seizure personal search memo Ex.PW3/G was prepared by Ct. Ampit Kumar. After that search he deposed, he searched both bags which were found containing ganja. The first bag was weighing 8 kg and second bag was 7 kg. The first bag was Marked A and second as B. 2 samples of 500 gm each were taken out from Mark A and B and serial nos. C,D and E,F were given. Proceedings of weighing and sample separation were done in the presence of SHO who had reached there at 9.10 pm. He further deposed that after filling up the FSL form, he fixed the seal of JS on all pullandas and State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 9 of23 FSL form. SHO fixed his seal of GK on them. Seals after use were handed over to Ct. Rajbir Singh. Case property was taken to PS by PW5 Inspr. Gajender Kumar. He prepared rukka Ex.PW6/B, sent Ct. Ampit to PS who got the case FIR registered. Ct. Ampit and PW10 SI Sachin Mann came to the spot at 1 am on 29.04.12 and he handed over custody of accused and relevant documents to 2nd IO who prepared rough site plan Ex.PW3/C on his pointing.
Ct. Rajbir Singh deposed that after recovery of contraband from accused SHO Gajender Kumar had also came to the spot and process of weighing, sample separation and sealing were done in his presence. He made it clear that first IO and SHO handed him over their seals. All pullandas and FSL form were seized vide memo Ex.PW3/B1.
PW7 Ct. Ampit deposed that rukka Ex.PW6/B was handed over to him by SI Jaspal Singh and he got the case FIR registered and returned to the spot with SI Sachin Mann at 1 am on 29.04.12. He is also witness to the arrest, personal search and disclosure statement of the accused.
State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 10 of23
7. Ld. defence counsel assailed the prosecution case on the ground of non joining of public witnesses, non filling of FSL form at the spot and non sending of FSL form to the laboratory. He argued that there are major contradictions in the statement of recovery witnesses and hence, they cannot be believed. He expressed apprehension that samples might have been tampered because seals were returned by Ct. Rajbir Singh to first IO and SHO on the next day whereas sample parcels were sent to FSL after a month. Last argument is that DD No. 58B has been written on notice u/s 50 of NDPS Act and personal search memo of SI Jaspal Singh prepared by Ct. Ampit but that DD number has not been mentioned on the seizure memo and instead FIR is mentioned probalising that seizure memo was prepared after registration of FIR.
8. PUBLIC WITNESSS PW5 SHO Gajender Kumar deposed in cross examination at page no. 5 that he was posted in that area since November'2010 and that he used to conduct meetings of RWA members and other residents to know their law and order problems and also to check the State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 11 of23 crime. He admitted that he was having the names, addresses and telephone numbers of respectable persons and volunteers of the area. He did not call any of those persons to become witnesses to the proceedings. PW6 deposed in cross examination at page no.9 that he did not give notice to passersby who refused to join the investigation. He admitted it correct that Ramleela Maidan is near Kalamandir Cinema. Shops were open at that time. He did not make any effort to call anyone from residential area and shops to join investigation. He further admitted that he did not call any person from Kalamandir Cinema. Rough site plan Ex.PW3/C shows that the recovery was effected from in front of a park. The recovery time is about 8.10 pm and that was high time for the strollers. But non joining of public witness is not fatal to the prosecution case as was held by the Apex Court in Ajmer Singh Vs. State of Haryana (2010)(3), SCC 746, "20. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 12 of23 police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.
Moreover, non joining of public witnesses is not fatal to the prosecution case as it was held by Apex Court in State of U. P. Vs. Anil Singh 1988 SUPP SCC 686 that the public at large are generally reluctant to come forward to depose before the court, therefore, the prosecution case cannot be doubted for nonjoining of independent witnesses. In State (Govt. of NCT of Delhi) Vs. Sunil & Ors. (2001) I SCC 652 Hon'ble Supreme Court held :
"We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post independent years but it is time now to start placing at least initial trust on the actions and the documents made State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 13 of23 by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
In Ramjee Rai & Ors. Vs. State of Bihar, State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 14 of23 (2006) 13 SCC 229 the Apex Court held that it is now well settled that what is necessary for proving the prosecution case is not the quantity but the quality of evidence. The Court cannot overlook the changes in value system in the Society. When an offence is committed in a village owing to land, dispute the independent witnesses may not come forward.
To the same effect was the observation of Hon'ble Supreme Court in case of Ram Swaroop Vs. State (Govt. of NCT of Delhi) in Cr. Appl. No. 1327/10 decided by Hon'ble Supreme Court on 21.05.13.
9. FSL FORM Ld. defence counsel argued that FSL forms were not filled up at the spot. These were not deposited in the malkhana and hence not sent to the FSL. Moreover, deposit of case property by SHO in malkhana is also in dispute.
PW5 SHO deposed at page no. 4 of cross examination that two FSL forms were prepared - one was original and the other was carbon copy of the original. He means to say that only one FSL form was prepared. PW6 deposed at page no.6 of cross State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 15 of23 examination only one FSL form was prepared and that form was not having any carbon copy. PW7 deposed at page no.6 of cross examination that only one FSL form was prepared at the spot. PW3 also deposed that only one FSL form was prepared and it was not having a carbon copy. So evidence of PW3,6 and 7 about the FSL form is against the testimony of PW5.
PW2 Ct. Satender had taken the sample parcels to FSL. He deposed in cross examination that FSL form was in an envelope and envelope was having seals of JS and GK. He is contradicted by PW5 by deposing that when he took FSL form from the spot to PS it was in open condition and that it was not in any envelope. PW6, first IO SI Jaspal Singh deposed that he handed over FSL form to SHO in open condition and that it was not kept in an envelope. PW9 MHCM also deposed that FSL form was in open condition and was not in any envelope. So, the evidence of PW5, PW6 and PW9 is in variance with the testimony of PW2 on the issue of FSL form. The heaviest blow to the prosecution case has been caused by PW9 while deposing in cross examination that IO had sent FSL form to him on State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 16 of23 23.05.12 with a direction to send sample parcels to FSL. Version of PW9 is that FSL form was not deposited with him on the day of recovery i.e., on 28.04.12 and rather it was sent to him by the IO on the day when sample parcels were to be sent to FSL.
It is not written in register no. 19 Ex.PW9/A at point X that FSL form was also handed over to PW2. That fact has also not been mentioned in RC Ex.PW9/B. So, there are divergent versions of the recovery witnesses regarding number of pages of FSL form and the condition in which it was deposited in the malkhana. Evidence of PW9 MHCM is totally in contradiction to the evidence of remaining witnesses as he deposed that FSL form was sent to him by the IO on 23.05.12. If the FSL form was deposited with him on 23.05.12, there is every possibility that seals might have been tampered on that form.
10. PRESENCE OF SHO AT THE SPOT DOUBTFUL It is mentioned in rukka Ex.PW6/B that SHO left the spot with case property pullandas and thereafter, rukka was sent. Time of sending of rukak is mentioned as 11.25 pm. PW7 also deposed at page no.6 of cross State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 17 of23 examination that SHO had left the spot at 11.30 pm. But PW5 deposed in cross examination at page no.6 that except seizure memo and FSL form, no other document was prepared in his presence. It means that rukka was not written in his presence but PW7 deposed at page 8 of cross examination that he left the spot with rukka in the presence of SHO and that rukka was prepared in the presence of SHO.
PW3 deposed that he and PW7 signed seizure memo but he is not aware who else signed that memo. It is pertinent to mention that seizure memo has been signed by the SHO also. Had seizure memo been signed by SHO at the spot that fact would have been in the knowledge of PW3. His ignorance about that fact shows that PW5 did not sign seizure memo at the spot.
PW5 and PW6 deposed that SHO did not sign FSL form and only offixed his seal on the FSL form. Version of PW7 is that SHO had signed the FSL form at the spot. Had PW5 SHO affixed his seal on the case property at the spot that fact should have been in the knowledge of PW7.
Case of the prosecution is and it has been deposed State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 18 of23 by PW5 also that process of weighing and separation of samples were done in his presence. He further deposed that he left the spot with case property and deposited the same with the MHCM. Second IO PW10 SI Sachin Mann had come to the spot after departure of SHO. It means that there was no parcel available at the spot when PW10 SI Sachin Mann reached there. But it has been deposed by PW3 in cross examination that FIR number on pullands A,B,C, D & E was written by SI Sachin Mann. It means that these parcels were at the spot when PW10 came there after registration of FIR. It falsifies the evidence of PW5 SHO that he came to the spot and took the case property to the PS and deposited the same in malkhana. In view of above discussion, evidence of PW5 is discarded.
11. CONTRADICTIONS
(i) About the help of IO in weighing process, PW3 deposed that nobody helped him in that process. PW5 deposed that all police officials helped IO in weighing the contraband. Version of PW6 is that only Ct. Ampit helped him in weighing process. It has been deposed by PW7 that he did not help SI Jaspal Singh in weighing State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 19 of23 process.
(ii) About the weighing process, PW3 deposed that first bag Mark A was weighed by SI Jaspal Singh by using weights of dominations of 8kg in one go. He could not recollect how many weights were of 1kg, 2kg, 3 kg, 4 kg or 5kg. PW5 deposed that ganja was weighed in lots of ½ kg. He further deposed that weighing scale being used by IO was quiet small and it permitted the weighing of only ½ kg ganja at one time.
(iii) About writing work PW7 deposed that no document was prepared by SI Sachin Mann in the presence of SI Jaspal Singh. He further clarified that all documents prepared by SI Sachin Mann were prepared after departure of SI Jaspal Singh. That testimony is totally against the prosecution case that SI Sachin Mann came to the spot and first document he prepared was rough site plan at the instance of SI Jaspal Singh.
(iv) About the seizure memo PW7 deposed at page 6 of cross examination that only one copy of memo was prepared and that there was no carbon copy. If that evidence is taken true, it belies the evidence of PW5 that he took to PS a copy of seizure memo also.
State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 20 of23
(v) Prosecution case is that first IO flashed secret information to DO at 7.20 pm and DO intimated the SHO and SHO directed DO to ask first IO to proceed further. But it has been deposed by PW6 at page 1 of examination in chief itself that he intimated both i.e., DO and SHO about the secret information and SHO asked him to proceed further.
(vi) Rough site plan Ex.PW3/C shows that raiding team members had taken position behind a wall and that wall is situated inside the MCD park but PW3 deposed at page 8 of cross examination that the wall was situated outside the park.
12. POSSIBILITY OF TAMPERING OF SAMPLES.
Contraband was recovered from the accused on 28.04.12 and it was sent to FSL on 23.05.12 i.e., after a delay of 25 days. Prosecution did not furnish any explanation for inordinate delay. Seal after use was handed over to PW3 Ct. Rajbir by the First IO and SHO. It has been deposed by PW3 that he returned the seals to both officials next day i.e., 29.04.12. Returning of seal next day to the officials to whom it belonged raises possibility of tampering with the case property State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 21 of23 and samples. Moreover, it has been deposed by MHCM that IO gave him FSL form on 23.05.12, so, till 23.05.12 the FSL form and seal were available with the first IO.
13. PREPARATION OF SEIZURE MEMO AFTER REGISTRATION OF FIR.
The police team comprising of PW3 Ct. Rajbir Singh, PW7 Ct. Ampit and PW5 SI Jaspal Singh had left the PS. On 28.04.12 at 6.45pm vide departure DD no. 58B Ex.PW6/A. That DD no. has been mentioned on notice u/s 50 of NDPS Act and personal search memo of SI Jaspal Singh but it is quiet strange that FIR number is mentioned on seizure memo Ex.PW3/A of the ganja. Prosecution case is that rukka was prepared by PW6 and he handed it over to Ct. Ampit and he got the FIR registered. It means that FIR was registered after seizure of contraband but that fact has been falsified by writing of FIR number on seizure memo. Had seizure memo been prepared before registration of FIR, it would have been bearing DD no. 58B as is mentioned on notice and personal search memo of SI Jaspal Singh.
14. CONCLUSION State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 22 of23 Prosecution has failed to prove that FSL form was prepared at the spot. There are divergent claims that the FSL form was in open condition or it was kept in an envelope. Presence of SHO at the spot and of his taking case property pullandas to PS is also doubtful. There are various irreconcilable contradictions in the statements of witnesses. Possibility of tampering of sample parcels and FSL form is there.
15. Taking into account all these facts, Taking accused is acquitted of the charge levelled against him. His Bail Bond, if any, stands cancelled. Surety, if any, is discharged. Endorsement, if any, be cancelled. Case property be confiscated to State after the period of appeal. File be consigned to Record Room. Announced in the Open Court On day of 27th August, 2014 (UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North Distt: Rohini Courts: Delhi State vs. Ajay @ Sanjay (FIR no.447/11 PS Sultanpuri) 23 of23