Delhi District Court
Sc No. 33/11 State vs . Ashfak on 27 September, 2013
SC No. 33/11 State Vs. Ashfak
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 33/11
ID No. 02403R0061632011
FIR No. 122/11
PS Crime Branch
u/s 21 of NDPS Act
State Vs. Ashfak @ Baba
S/o Sh. Mushtak
R/o Ward No.2, Ambika Nagar,
Village Daloda, PS Bhab Nagar,
Distt. Mandsore, M.P.
Date of Institution : 10.08.2011
Judgment reserved on : 25.09.2013
Date of pronouncement : 27.09.2013
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act').
2. Briefly stated the allegations against the accused, as contained in the chargesheet and as culled out from the documents filed alongwith the chargesheet, are as follows:
FIR No.122/11 Page 1 of 27
SC No. 33/11 State Vs. Ashfak (a) On 08.05.2011 at about 12.40 PM, one secret informer came to
the office of SI Abdul Qadir at AATS, Nehru Place, Crime Branch and informed him that two persons namely Ashfak and Wasim, both residents of Mandsore, MP are indulging in supply of heron on behalf of one Guddu @ Lala and that Ashfak would be coming on 08.05.2011 between 02.0003.00 PM near Bangla Saheb Gurudwara, Connaught Place to supply heroin to one Mani R/o Vijay Nagar, Ghaziabad.
(b) The information was brought to the notice of senior officials who gave directions for necessary action to be taken. DD entry no. 4 was also lodged in this regard and as per the directions of the senior officials, a raiding team comprising of SI Abdul Qadir, HC Parwinder, PW2 Ct. Prithvi Raj, Ct. Sandeep, Ct. Jai Prakash, Ct. Rajender, Ct. Yoginder and the secret informer reached at Gurudwara Bangla Sahib, New Delhi at 02.00 PM.
(c) At the spot, the secret informer pointed out towards a thin man who was standing at T Point, Bangla Sahib carrying a black bag on his right shoulder and identified him as Ashfak. The said person appeared to be waiting for someone and when the said person started walking towards Connaught Place, the raiding team intercepted him.
(d) The IO introduced himself and the members of the raiding team to the said person and apprised him about the information within his FIR No.122/11 Page 2 of 27 SC No. 33/11 State Vs. Ashfak knowledge. On enquiry, the said person revealed his name as Ashfak. He was then issued a notice u/s 50 of NDPS Act and was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused however refused to exercise the said right and stated that he did not want the presence of a Gazetted Officer or a Magistrate and the police officials can take his search.
(e) Thereafter, the bag carried by Ashfak was searched and on opening the said bag, it was found containing a white colour polythene which in turn was found to contain another transparent thaili having brown colour powder. The said powder on testing with field testing kit gave positive result for heroin. The recovered heroin was weighed and its total weight came out to be 3 kg.
(f) Two samples of 5 grams each were then taken out from the heroin, put into separate transparent polythenes, were tied with the help of rubber band and converted into cloth pullandas and given mark A and B. Remaining heroin was kept in the same packet from which it was recovered and was converted into separate cloth parcel and the said parcel was given mark C. All the Pullandas were sealed by the IO with the seal of 'AQ'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared. Seal after use was handed over to HC Parwinder Singh.
FIR No.122/11 Page 3 of 27
SC No. 33/11 State Vs. Ashfak (g) The Rukka was prepared and the same alongwith the seizure
memos and sealed property was handed over to Ct. Prithvi Raj, who thereafter went to PS Special Cell and produces the case property before SHO, PS Special Cell and handed over the rukka to Duty Officer for registration of FIR. SHO affixed his seal on all the pullandas and documents and also put the FIR number on the carbon copy of seizure memos, FSL form and all the three pullandas with his signature and deposited the same with MHCM. Further investigation was handed over to SI Chander Prakash who came to the spot and he was narrated the facts of the case by SI Abdul Qadir and the accused and the documents prepared were handed over to him. He then prepared the site plan and arrested the accused. The raiding team then took the accused to PS Crime Branch and deposited the personal search articles of the accused in the Malkhana. Thereafter, the accused was produced before SHO. Special Reports U/s 57 of NDPS Act were prepared. The samples were sent to FSL Rohini for analysis and after receiving the FSL report, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed against the accused vide order dated 5/9/2011 for the offence punishable u/s 21 NDPS Act to which the accused pleaded not guilty and claimed trial. FIR No.122/11 Page 4 of 27
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4. In order to prove its case against the accused, the prosecution has examined 11 witnesses in all.
5. PW2 Ct.Prithvi Raj, PW3 HC Parwinder and PW8 SI Abdul Qadir, are members of the raiding team. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. PW8 SI Abdul Qadir is the main investigating and seizing officer. As per his deposition, DD No. 4, in which the secret information was reduced has been exhibited as Ex.PW6/A. The notice issued to the accused u/s 50 of the NDPS Act has been exhibited as Ex.PW2/A and the refusal asserted to have been given by the accused has been identified by this witness at point 'Z' in Ex.PW2/A. The seizure memo prepared with respect to the recovery of the heroin from accused has been exhibited as Ex.PW2/B. Report u/s 57 NDPS Act has been exhibited as Ex.PW4/D.
6. PW1 HC Jag Narain has deposed that he was posted as MHC(M) at PS Crime Branch on 8/5/2011 and that on this date, SHO of the said PS had deposited with him three pullandas sealed with the seal of AQ and KSY and the said property was deposited by him in the malkhana vide entry 1015, Ex.PW1/A. He has also deposed that on the same day SI Chander Prakash had also deposited the articles of personal search of the accused with him and he has proved the said entry at Sl. no. 1016 as Ex.PW1/B. According to his deposition, he had also sent the samples mark A to FSL Rohini through FIR No.122/11 Page 5 of 27 SC No. 33/11 State Vs. Ashfak Ct. Prithvi Raj vide RC no. 207/21, Ex.PW1/C. He has also deposed that on 20/6/2011 the result was deposited along with the remnant samples in the malkhana and he has proved the entry as Ex.PW1/E.
7. PW4 Dr. Lingraj Sahoo, SSO, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the sample sent to FSL. The said report has been exhibited as Ex. PW4/A and as per the said report, the sample Mark A was found to contain diacetylmorphine, paracetamol and caffeine and the percentage of diacetylmorphine was found therein to be 29.13%.
8. PW5 Duty officer HC Dalbir Singh has interalia deposed that he was the duty officer on 8/5/2011 and that on this date he had received the rukka of the present case through Ct. Prithvi Raj and had registered the FIR, Ex.PW5/A and had also recorded DD no. 5 and 7, Ex.PW5/B and Ex.PW5/C.
9. PW6 Insp. Kuldeep Singh has interalia deposed that on 8/5/2011, he was posted as SHO, PS Crime Branch and on that day SI Abdul Qadir along with secret informer came to his office and apprised him regarding the secret information. He has further deposed that he passed this information to ACP/AATS telephonically and forwarded the DD no. 4 prepared by SI Abdul Qadir to ACP/AATS which has been exhibited as Ex.PW6/A. According to this witness, at about 5:45 PM on the same day, Ct. Prithviraj FIR No.122/11 Page 6 of 27 SC No. 33/11 State Vs. Ashfak had produced before him, three pullandas, one FSL Form and one carbon copy of seizure memo. As per the deposition of this witness, he had put the FIR number, his initials and his seal 'KSY' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana by HC Jag Narain MHC(M) and lodged DD no. 6 in this regard which has been exhibited as Ex.PW6/B. He has further deposed that at about 9:15 PM the accused was produced before him by SI Chander Prakash and he had enquired from him regarding the recovery and his arrest. According to this witness SI Chander Prakash and SI Abdul Qadir submitted before him the Special Reports u/s 57 of NDPS Act.
10.PW7 HC Kirti Kumar, Reader to ACP, AATS Crime Branch has interalia deposed that as per the record produced by him, on 8/5/2011 DD no. 4 prepared by SI Abdul Qadir, reports u/s 57 NDPS Act prepared by SI Abdul Qadir and SI Chander Prakash were also received in the office of ACP regarding seizure and arrest of accused and that same reports were put before ACP. The reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW7/A, Ex.PW7/C and Ex.PW7/D.
11.PW9 SI Chandra Prakash is the second investigating officer of the present case who has deposed that on reaching the spot he had met SI Abdul Qadir and he had produced before him the accused and documents FIR No.122/11 Page 7 of 27 SC No. 33/11 State Vs. Ashfak prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW8/A and had arrested accused Ashfak vide arrest memo, Ex.PW3/B. According to this witness he had recorded disclosure statement of accused vide Ex.PW9/A. The arrival entry and departure entry have been exhibited as Ex.PW9/C and Ex.PW9/D respectively.
12.PW10 Amar Pal Singh, Assistant Director, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him with respect to the sample sent to FSL by this Court. The said report has been exhibited as Ex. PW10/A and as per the said report, the sample Mark 'CA' was found to contain 'diacetylmorphine, 6monoacetylmorphine, acetyl codeine, caffeine and acetaminophen and the percentage of diacetylmorphine was found therein to be 12.4% in Ex.CA.
13.PW11 ACP Bir Singh, has interalia deposed that on 8/5/2011, he was posted as ACP, AATS, Crime Branch and on that day he received a call from Sh. Kuldeep Singh, SHO regarding secret information received by SI Abdul Qadir, pursuant to which he gave directions for the conduct of a raid as per law. He has further deposed that between 2:00 PM and 3:00 PM he again received a call from Insp. Kuldeep Singh regarding apprehension of accused Ashfak along with 3 kg. of heroin. According to this witness, he then, at about 10.00 PM, received DD no. 4 and reports u/s 57 NDPS Act which after endorsement he forwarded to Additional DCP, Crime Branch. FIR No.122/11 Page 8 of 27
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14.The entire aforementioned evidence was put to the accused and his submission was recorded u/s 313 Cr.PC. In the said statement, the accused has inter alia stated before this court that he was apprehended in Jaipur and not in Delhi and further that no contraband was recovered from him. According to the accused, one Wasim who is a resident of the same village as the accused had requested him on 06.05.2011 to accompany him to Jaipur to purchase clothes for his business. The accused has stated that both he and Wasim left MP in the morning on 06.05.2011 and reached Jaipur bus stand and while they were standing at the main Jaipur bus stand, one person came in plain clothes and started talking to Wasim and thereafter Wasim told him that that they had to accompany the said person as he will take them to the seller of clothes. This accused has further submitted that both he and Wasim were made to sit in a Toyota car and were brought to Delhi and were then locked up in separate rooms in an office in Delhi. According to the accused, he was beaten up by the police officials and was forced to sign many documents and that he had only later on came to know that the police officials had allowed Wasim to go and had planted 3 Kg heroin on the present accused. No defence evidence was however led by the accused.
15.Both the Ld. APP and the Ld. Defence counsel Sh. R.S. Kundu have advanced final arguments before this court on 16.09.2013. FIR No.122/11 Page 9 of 27
SC No. 33/11 State Vs. Ashfak
16. On behalf of the State, Ld. APP has submitted that the deposition of the prosecution witnesses and the documentary evidence proved on record sufficiently prove that the accused was apprehended and heroin was recovered in the manner as alleged by the prosecution.
17.On the other hand, Ld. Defence counsel has submitted that none of the members of the raiding team have been able to depose consistent facts about the alleged proceedings conducted at the spot and according to him the detailed crossexamination of the main investigating officer SI Abdul Quadir in fact proves that no search and seizure proceedings were done in the manner put forward by the prosecution. He has pointed out that the said investigating officer could not even tell the contents of section 50 NDPS Act notice purportedly issued by him to the accused. He has further pointed out that the said witness has admitted in his crossexamination that the report u/s 57 NDPS Act was not even prepared in his presence. It is also the contention of Ld. Defence counsel that the production of the case property before this court has proved that the samples that were purportedly sent to the FSL were not drawn out from the substance allegedly recovered from the accused. The submission of the Ld. Defence counsel is that in the present case where no public witnesses were joined in the investigation and admittedly the investigating officer has not complied with the provisions of section 50 and section 57 of the NDPS Act, the accused is entitled to be FIR No.122/11 Page 10 of 27 SC No. 33/11 State Vs. Ashfak acquitted. In support of his contentions, Ld. Defence counsel has relied upon the following judgments:
● Dilip & Anr. Vs. State of M.P. 2006 Drugs Cases (Narcotics) 635. ● Ritesh Chakarvarti Vs. State of M.P. 2006 Drugs Cases (Narcotics)
420.
18.In rebuttal, Ld. APP has submitted that the compliance of section 50 NDPS Act was not required to be done in this case for the contraband had not been recovered from the person of the accused but from a packet which the accused was holding in his hand. He has further submitted that very recently, the Hon'ble Supreme Court as in two of its judgments pronounced in NDPS cases has observed that when public persons refuse to join the raiding team despite request made to them, the court must not treat the testimony of the police officials with suspicion and in case the testimony of the police officials are found to be reliable and trustworthy, the court should rely upon the same. The said judgments relied upon by the Ld. APP are as follows:
● Ram Swaroop Vs. State 2013 Crl. L.J. 2997. ● Kashmiri Lal Vs. State of Haryana 2013 Crl. L.J. 3036.
19.I have carefully considered the submissions made by both the Ld. Counsels and have gone through the record carefully. No doubt as contended by Ld. APP for State the testimony of the police officials cannot be treated with suspicion, only because no public witnesses were joined in the FIR No.122/11 Page 11 of 27 SC No. 33/11 State Vs. Ashfak investigation. As pointed out by Ld. APP, the Hon'ble Supreme Court in two of its recent judgments pronounced in NDPS cases and relied upon by Ld. APP, has observed that ordinarily the public at large show their disinclination to come forward to become witnesses and that even in the absence of independent witnesses, the court can, on the sole testimony of the police officials believe the prosecution's case to be true. However in the very two judgments, the Apex court has also made it clear that if a court has any good reason to suspect the truthfulness of the records produced by the police officials, the court can certainly take into account the fact that no other independent person was present at the time of recovery and that therefore an accused cannot be held guilty only on the basis of the suspect records produced by the police officials. Thus the caution given by the Hon'ble Supreme Court is that if in the course of scrutinizing the evidence, the court finds the evidence of the police officials as unreliable and untrustworthy, the court may disbelieve them but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. In the present case, after going through the entire evidence on record brought by the police officials, this court is of the considered opinion that the said evidence is infact unreliable and untrustworthy.
FIR No.122/11 Page 12 of 27
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20.As narrated hereinabove, the version put forward by the prosecution is that they had received a secret information that two persons namely Wasim and Ashfak will be delivering heroin to one Mani near Gurudwara Bangla Saheb on 08.05.2011 and that at about 02.00 PM on the said day accused Ashfak was apprehended near Gurudwara Bangla Saheb at the pointing out of the secret informer and 3 Kg of heroin were recovered from a bag being carried by him. It was also the case of the prosecution that after his apprehension, accused Ashfak disclosed to them that Wasim had also come with him and had gone to make a call to Mani, to whom the delivery of the contraband was to be made. On the other hand, the defence taken by the accused right from the date of filing of the chargesheet has been that the bag shown to have been recovered from him was infact recovered from Wasim and that Wasim was also apprehended alongwith him while they were standing at a bus stand in Jaipur. It is a matter of record that the chargesheet in the present case was filed on 10.08.2011 and on the same date, the accused had submitted a handwritten application before this court wherein he had stated that one Wasim who was of the same village as his, had asked him to accompany him on the pretext that he would make him tour places and that both he and Wasim were apprehended on 05.05.2011 from a bus stand at Jaipur and brought to Delhi by police officials. In the said application, he had also stated that from the possession of accused FIR No.122/11 Page 13 of 27 SC No. 33/11 State Vs. Ashfak Wasim, about 1.3 Kg of some substance had been recovered and that the police let go off Wasim and falsely implicated him in this case by not only increasing the weight of substance to 3 Kg but also planting the said substance on him. He also narrated in the said application that Rs.1 Lac was demanded from him by the police officials but that he could not give the same. A copy of the said application was supplied to the prosecution and the accused was made to understand by this court that he will have to prove his allegations during trial. Now when the investigating officer PW8 Abdul Qadir was examined during prosecution's evidence, it was categorically put to him that he had apprehended Wasim in Rajasthan and that after bringing him and the accused to Delhi, he had let Wasim off and had implicated the accused in this case. The said suggestion was vehemently denied by the said IO. On the contrary, the said IO and infact PW6 Inspector Kuldeep Singh during their deposition took a stand that on 10.05.2011, after obtaining the police custody of the accused, a team under the supervision of Inspector Kuldeep Singh and SI Abdul Qadir had gone to Madhya Pradesh and Rajasthan and despite their best efforts, none of the persons about whom the accused had disclosed in his statement could be traced out.
21.This case was initially fixed for pronouncement of judgment by this court for 21.09.2013 and while the undersigned, on 20.09.2013, was going FIR No.122/11 Page 14 of 27 SC No. 33/11 State Vs. Ashfak through the file to prepare the judgment, it came to the notice of this court that none of the prosecution witnesses/members of the raiding team had deposed any facts before this court with respect to the apprehension of Wasim at any point of the investigation, though in the last sheet containing the brief facts appended with the chargesheet, it had been mentioned by SI Chandra Prakash (author of the chargesheet) that when the accused was taken on police remand, he had pointed out to Wasim's residence in village Daloda and that Wasim was interrogated by the investigating officer SI Abdul Qadir and that he had inter alia informed the investigating team that though he had accompanied Ashfak to New Delhi, he did not have the knowledge that Ashfak used to deal in drugs and that on the fateful day, he had gone to drink water and when he came back, he saw accused being held by police officials and therefore he got scared and ran away from the spot. As per the averments in the said sheet of brief facts, the investigating officer found the said statement of Wasim as believable and therefore did not arrest him. This court then vide a detailed order dated 20.09.2013, recalled PW6 Kuldeep Singh, PW8 Abdul Qadir and PW9 SI Chandra Prakash by exercising its jurisdiction u/s 311 Cr.PC, for this court wanted to arrive at the truth with respect to the role of the suspect Wasim and also wanted to know from the police investigating officials as to why none of them had deposed about the investigation carried out by them with respect FIR No.122/11 Page 15 of 27 SC No. 33/11 State Vs. Ashfak to the suspect Wasim. In the said reexamination, PW6 Inspector Kuldeep Singh has given a categorical statement before this court that under his supervision a raiding team consisting of SI Abdul Qadir, HC Parwinder, Ct. Sandeep and Ct. Jai Kumar had visited the village of both accused and Wasim i.e. village Daloda on 11.05.2011 but Wasim could not be apprehended as he was found unavailable at his residence. This witness has categorically deposed before this court that when the raiding team alongwith Ashfak reached the residence of Wasim in village Daloda, there was a family function taking place at the said residence and the investigating team met the parents and many other relatives of Wasim and that the parents and the relatives of Wasim were thoroughly interrogated by SI Abdul Qadir in his presence. He has further deposed that the parents and the relatives of Wasim informed him and SI Abdul Qadir that Wasim had never left the village and had not gone to Jaipur or Delhi but they also did not specifically inform him where he was on 11.05.2011. This Inspector also stated that though he insisted that the whereabouts of Wasim be disclosed to the police team, the parents of Wasim merely told them that he was away to a relatives' place. On a specific query by this court, he stated that the police team, did not, at any point of time caught hold of Wasim. He further specifically stated that had Wasim been apprehended, he would have arrested him surely because his name had been disclosed in the secret FIR No.122/11 Page 16 of 27 SC No. 33/11 State Vs. Ashfak information and also by the accused Ashfak. The said witness was then pointed out the portion of the chargesheet wherein the apprehension of Wasim on 11.05.2011 had been mentioned. The said Inspector/SHO then informed this court that the said facts written in the chargesheet were completely false and that he was not the SHO who had forwarded the said chargesheet as he already stood transferred by the time the chargesheet was filed. Completely contrary to the said deposition, is the deposition of the investigating official PW8 SI Abdul Qadir. Though this police official also initially stated before the court on oath that during the period 11.05.2011 to 14.05.2011, he being the member of the raiding team which had gone to Madhya Pradesh alongwith accused Ashfak in police custody, had not met Wasim or gone to him house or interrogated his parents or his relatives, on being confronted with two statements of Ct. Sandeep and HC Parwinder u/s 161 Cr.PC, mark PW8/CW1 and mark PW8/CW2 respectively, which as per record were the statements recorded by this official on 14.05.2011 and which inter alia recorded that Wasim had been interrogated in the presence of the said officials by him, then admitted that he infact had interrogated Wasim. On being asked as to what the said interrogation resulted in, he stated that he had forgotten what facts did Wasim disclose in his interrogation but according to him, the disclosure must have been such that did not call for the arrest of Wasim and that he FIR No.122/11 Page 17 of 27 SC No. 33/11 State Vs. Ashfak would have recorded the interrogation done in his case diary. On request of Ld. APP, the said official was then allowed to go through the case diary prepared by him and after he read his case diary of the relevant date, he then deposed that Wasim on 11.05.2011 infact had told him and Inspector Kuldeep that he was present with accused Ashfak in New Delhi on the day Ashfak was apprehended but that he did not have the knowledge that accused Ashfak was having contraband in his possession. He then further went on to depose that both he and Inspector Kuldeep found the statement of Wasim believable and therefore did not arrest him. He further stated that he did not tell the entire said facts initially because he had forgotten them though he admitted that present is the only case in which a suspect whose name was mentioned in the secret information, was not arrested despite being apprehended. The aforementioned diagrammatically opposite statements given by the said two officials make it apparent that an attempt has been made to mislead the court by giving false statements on oath. Though Ld. APP did try to contend that SI Chandra Prakash had mentioned the facts in the portion X to X of the chargesheet based on the case diary prepared by SI Abdul Qadir, he was at pains to explain which of the two police officials namely Inspector Kuldeep Singh and SI Abdul Qadir had lied blatantly before this court. If the Ld. PP wishes this court to believe that Kuldeep Singh has spoken the true facts before this court, then clearly FIR No.122/11 Page 18 of 27 SC No. 33/11 State Vs. Ashfak SI Abdul Qadir has manipulated the case diary and the statements of HC Parwinder and Ct. Sandeep recorded u/s 161 Cr.PC. On the other hand it it is taken that no police official would manipulate documents to such an extent then clearly Inspector Kuldeep Singh did not want this court to be made aware that Wasim had infact been apprehended and therefore this witness has given a false deposition before this court. This court is infact pained to observe that present is a case where the police officials have without any burden on their conscience chosen to speak false facts before this court. Despite the aforementioned conduct of the police officials, Ld. APP for State has still sought to contend that even if the said police officials have deposed falsely with respect to the suspect Wasim, the same is not itself sufficient for this court to draw an inference that the investigation and documents prepared by them with respect to the apprehension and search and seizure of contraband from accused Ashfak are manipulated and false. His contention is that the evidence led before this court particularly the depositions of PW6 and PW8 are not sufficient at all to conclusively hold that accused Ashfak was right in contending that police officials had taken bribe from Wasim and had let him off.
22.With respect to the said contention of the Ld. APP, it will be relevant to point out that even the proceedings conducted and documents prepared by SI Abdul Qadir with respect to the asserted search and seizure proceedings FIR No.122/11 Page 19 of 27 SC No. 33/11 State Vs. Ashfak conducted with respect to accused Ashfak are fraught with doubt. In his examination in chief itself, this official, who was assertedly the main investigating officer in the present case, could not depose correctly about the contents of the section 50 NDPS Act notice purportedly issued to the accused Ashfak and even failed to depose about the reduction into writing of the secret information assertedly received by him and preparation of any report u/s 57 NDPS Act or its submission to any superior officials. It is only when the Ld. APP sought the permission of this court to crossexamine him and thereafter put all suggestions to him namely that he had infact informed the accused that he has a legal right to be searched before a Magistrate and that infact he had also prepared a report u/s 57 NDPS Act and further that he had also reduced the secret information into writing did the said witness say 'yes' in answer to all the suggestions put to him. He could not also then stand the test of crossexamination. It was pointed out by Ld. Defence counsel during the crossexamination of this witness that the notice purportedly prepared by him u/s 50 NDPS Act Ex.PW2/A, the ink in which the contents of the said notice are written is completely different from the ink in which this witness has signed thereon at point X. It was put to this witness in his crossexamination that though his name 'SI Abdul Qadir' is written in the same ink in which the other contents of the notice are written, his signature which is above his name, is in completely different ink. This FIR No.122/11 Page 20 of 27 SC No. 33/11 State Vs. Ashfak witness then took a stand that he used two pens at the spot but on being specifically asked as to what prompted him to use a different pen to only sign on the said notice, he merely kept quiet. Ld. Defence counsel then made a request to this court that in view of the said answers given by the witness, he has serious doubts whether the said notice was prepared by himself at the spot or not and he therefore then sought the permission of this court to ask the witness to again write the contents of the notice u/s 50 NDPS Act on a separate sheet of paper before the court. Looking into the vague answers that were being made by this witness, the said request was allowed by this court and thereafter the witness then wrote certain lines on a sheet of paper which for the purposes of identification was given Ex.PW8/D1 and after perusing the same it becomes very doubtful whether the notice u/s 50 NDPS Act was written by this IO at the spot on his own, as deposed by him. It will also not be out of place to mention herein that the carbon copy of this notice which is shown to have been handed over to the accused and thereafter recovered from his possession does not bear the signature of HC Parwinder though the original notice Ex.PW2/A bears the said signature. Though Ld. APP put a suggestion to HC Parwinder that his signature do not appear on the carbon copy because perhaps he did not press the pen hard enough, the said explanation is not at all acceptable keeping in view that all the other contents of the notice with the same FIR No.122/11 Page 21 of 27 SC No. 33/11 State Vs. Ashfak amount of pressure were copied by the carbon. In such view of the matter, the contention of the Ld. Defence counsel that HC Parwinder was not at all present at the spot and that all the documents were prepared at the police station and the signatures of the police officials were taken thereon at the police station, cannot be brushed aside lightly, more so when both HC Parwinder and Ct. Sandeep could not correctly point out the correct exact place of the apprehension of the accused or the place where the section 50 NDPS Act notice was prepared.
23.Another document the preparation of which is doubtful is the purported report u/s 57 NDPS Act prepared by the IO SI Abdul Qadir. When PW8 was asked in his crossexamination about the said report, he deposed that the same was prepared by him at the spot itself. However when it was pointed out to him that the said report is a typed report, he took a stand that he had got it typed from someone at the spot itself. On being questioned as to which police official had been sent to get the said report typed, he evasively deposed that he does not remember which police official had he sent and to where to get the said report. Now admittedly, none of the other members of the raiding team have deposed anything about the preparation of the report u/s 57 NDPS Act at the spot or any of them being sent to get it typed and therefore it is apparent that this witness has even deposed incorrectly even with respect to the preparation of this document. FIR No.122/11 Page 22 of 27
SC No. 33/11 State Vs. Ashfak
24.Further though this witness has categorically stated that he had prepared the FSL form in duplicate by using a carbon but apart from the FSL form which was first produced before the SHO and then deposited by the SHO with the MCHM, there is no other FSL form about which any of the other witnesses have deposed.
25.There are yet two other discrepancies on record with respect to the evidence led by the prosecution and the same are with respect to the forwarding of DD no.4 and the reports u/s 57 NDPS Act to the office of ACP and with respect to the samples drawn and sent for examination. With regard to the forwarding of the DD and the reports u/s 57 NDPS Act, there is absolutely no consistency between the deposition of PW7 HC Kirti Kumar, Reader in the ACP office and PW11 ACP Bir Singh himself. Though according to PW7 HC Kirti Kumar, he was present in the ACP office on 08.05.2011, which was a Sunday and he himself had received the aforementioned documents in the office of the ACP, on 08.05.2011 itself, it is the categorical deposition of ACP Bir Singh that his Reader was not present in his office on 08.05.2011 which was a Sunday and that he (i.e. the ACP) himself had received the aforementioned documents at 10.00 PM on the said day and that he had handed over the said reports to his Reader only on 09.05.2011. The said inconsistency is material for when the Reader to FIR No.122/11 Page 23 of 27 SC No. 33/11 State Vs. Ashfak the ACP was examined in court, it was pointed out by the Defence that though the aforementioned documents were bearing the signatures of the ACP on 08.05.2011 i.e. a Sunday, the entry in the register of the Reader to ACP with respect to the receipt of the documents was of 09.05.2011. When the said discrepancy was shown to PW7, the Reader, he had merely kept quiet. In the considered opinion of this court, it is therefore being rightly contended by the Ld. Defence counsel that the ACP has taken a stand that he was present in his office on a Sunday till 10.00 PM only to cover the discrepancy that came to the fore between the documents placed on record and the register maintained by the Reader to the ACP.
26.As regards the analysis of the samples that were assertedly taken out from the recovered substance and sent to FSL, it is a matter of record that when PW4 Dr. Lingraj Sahoo, Senior Scientific Officer, FSL Rohini was examined in this court during trial, he was shown both the brown colour powdery substance i.e. the case property mark C and the samples A and B which were dark brown semi solid substance and asked to explain the variation in the colours of the same. The said expert could not really explain the said variation and merely stated that in case the main case property and its representative samples were kept in similar conditions like exposure to air, environment then all the three would have undergone identical changes. On a specific query of this court, he had stated that he FIR No.122/11 Page 24 of 27 SC No. 33/11 State Vs. Ashfak cannot opine if the brownish colour powder mark A could have converted due to any chemical changes including moisturisation with the passage of time into dark brown semi solid paste like substance. Based on the said deposition of the expert, on an application filed by the accused, retesting of the case property was allowed by this court and a fresh sample from the case property was again sent for examination to the FSL. This time, the said sample was examined by PW10 Amar Pal Singh, Assistant Director, FSL. Now the variations in the two FSL reports filed on record are that though as per the first FSL report Ex.PW4/A, the sample drawn out assertedly from the recovered substance was found to contain diacetylmorphine only to the extent of 29.13%, the second time, the sample was found to contain diacetylmorphine to the extent of 12.4%. Further though as per the first report, the expert had not reported that the sample was also containing acetylcodeine, the second expert did opine that the second sample was found to contain acetylcodeine.
27.Though Ld. APP has sought to contend that the variation in two reports with respect to its constituents is because of the different instruments used by the two experts, suffice is to state that the deposition given by the first FSL expert, PW4 discussed hereinabove itself creates a doubt whether the samples sent to FSL were from the same substance that was allegedly recovered from the accused.
FIR No.122/11 Page 25 of 27
SC No. 33/11 State Vs. Ashfak
28.The entire aforementioned discussion hereinabove makes it quite apparent that the depositions of the police officials who assertedly conducted the search and seizure proceedings with respect to accused Ashfak are not at all reliable and trustworthy and therefore in the absence of any independent public witness, the said depositions cannot at all be made the basis for holding the accused guilty of the offences that he has been charged of. This court is of the considered opinion that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt and therefore the accused is hereby acquitted of the charges framed against him.
29.This court at this stage, is also of the considered opinion that taking into consideration the entire material that has come on record with respect to the asserted apprehension of the suspect Wasim it is the bounden duty of this court to get the conduct of Inspector Kuldeep Singh and SI Abdul Qadir inquired into. In a judgment pronounced in the case titled as National Human Rights Commission Vs. State of Gujarat (2009) 6SCC 767, the Hon'ble Supreme Court has laid down that the courts have an overriding duty to maintain public confidence in the administration of justice and due administration of justice is a continuous process, not confined to determination of a particular case and the court is to protect its ability to function as a court of law in the future as in the case before it. The Hon'ble FIR No.122/11 Page 26 of 27 SC No. 33/11 State Vs. Ashfak Supreme Court in the said case has also observed that the courts administering criminal justice should not turn blind eye to vexatious or oppressive conduct that may have occurred in relation to the proceedings.
30.Keeping in view the said judicial dicta and the material that has come on record before this court, it is hereby deemed fit to direct the Commissioner of Police, New Delhi to hold an inquiry against Inspector Kuldeep Singh and SI Abdul Qadir and determine which of the said two officials has manipulated facts/documents pertaining to the apprehension of suspect Wasim in this case and has deposed falsely before this court. Copy of this judgment be sent to the Commissioner of Police, New Delhi immediately. It is also made clear that an action taken report should be filed before this court within two weeks of receipt of this judgment.
Announced in open Court on this 27th day of September, 2013 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No.122/11 Page 27 of 27