Delhi District Court
State vs . Rahul @ Ravan on 7 February, 2023
IN THE COURT OF SH. DEEPAK WASON:
SPL. JUDGE (NDPS): DWARKA COURTS: NEW DELHI
SC No. 321-2021
FIR No. 101-2021
U/s. 21 (b) & 25 NDPS Act
PS: Najafgarh
State vs. Rahul @ Ravan
Date of Institution of case:-23.04.2021
Date of arguments:-07.02.2023
Date on which Judgment pronounced:-07.02.2023
JUDGMENT
CNR No. :DLSW01-004598-2021
Date of commission of the offence :27.02.2021
Name of the complainant :SI Raghuveer Meena
Name and address of accused :Rahul @ Ravan
S/o Sh. Ram Asre
R/o H. No. RZ-113,
Nehru Garden,
New Roshanpura,
Najafgarh, Dwarka, Delhi
Offence complained of :21 (b) & 25 NDPS Act
Plea of accused :Pleaded not guilty
Date of order :07.02.2023
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 27.02.2021, Insp. Raghuveer was posted as SI at PS Najafgarh and on that day, Ct. Kulwant shared secret information with Duty Officer telephonically and thereafter, Insp. Raghuveer alongwith Ct. Somveer reached at the spot i.e. Jai Vihar Nala, Ghasipura Picket vide DD No.64A where Ct. Kulwant met them. Ct. Kulwant shared the secret information with them and they also met the secret informer. It is further the case of prosecution that thereafter, Insp. Raghuveer prepared a raiding party SC No. 3212021 State Vs. Rahul @ Ravan Page 1 of 26 consisting of secret informer, Ct. Kulwant and Ct. Somveer. It is further the case of prosecution that thereafter, they requested some passers by to join the investigation but all refused the same and left the spot without disclosing their names and addresses. It is further the case of prosecution that as per the direction of Insp. Raghuveer, members of the raiding party took their positions near Jai Vihar Nala, near Ghasipura Picket and at about 03.20 p.m, one boy was seen coming towards the spot on motorcycle bearing registration no. DL9SBT-6652 from the side of Jai Vihar, who was apprehended by them and the name of accused was revealed as Rahul @ Ravan and thereafter, Insp. Raghuveer shared the secret information with accused and informed through telephonically to the police station. It is further the case of prosecution that thereafter, ACP Najafgarh and SHO reached at the spot and in the presence of ACP, SHO and Insp. Raghuveer apprised the accused about his legal right that his search can be taken in the presence of any Magistrate or Gazetted officer. It is further the case of prosecution that the accused was also apprised before his search, he can take search of police party and police vehicles. It is further the case of prosecution that Insp. Raghuveer prepared notice under Section 50 NDPS Act and the notice under Section 50 NDPS Act was given to the accused in original and after going through the contents of the same, accused has given his reply, stating therein that he did not want himself to be searched in front Gazetted Officer and Magistrate and did not want to take search of police party. It is further the case of prosecution that Insp. Raghuveer produced the accused before ACP and took his search and during the search, one polythene was recovered from the right pocket of his capree/lower and the recovered substance physically appeared to be smack and the colour of recovered substance was Mehroon. It is SC No. 3212021 State Vs. Rahul @ Ravan Page 2 of 26 further the case of prosecution that thereafter, Insp. Raghuveer weighed recovered substance with the help of electronic weighing machine and the weight of recovered substance/smack was found 90 grams and thereafter, Insp. Raghuveer kept the recovered substance in same polythene and the said polythene was kept in a plastic box and the said box was converted into pullanda with the help of doctor tape and sealed with the seal of RM and it was marked as 'Mark A'. It is further the case of prosecution that thereafter, Insp. Raghuveer seized the case property and ACP Joginder Joon signed on the seizure memo and motorcycle bearing registration no.DL9SBT-6652 was also seized. It is further the case of prosecution that after use, seal was handed over to Ct. Somveer and thereafter, Insp. Raghuveer prepared tehrir under Section 21 NDPS Act and handed over the same to Ct. Somveer along with carbon copy of seizure memo of case property and sealed case property for registration of FIR and proceedings under Section 55 NDPS Act and Ct. Somveer went to police station.
2. It is further the case of prosecution that ACP Sunil Kumar (the then SHO) went to police station and after some time, Ct. Somveer brought the rukka and one sealed pullanda duly sealed with the seal of RM with FSL form and carbon copy of seizure memo and rukka was handed over to the Duty Officer for the registration of the FIR and the sealed pullanda along with FSL form and carbon copy of seizure memo was produced before ACP Sunil Kumar and he counter sealed the same with the seal of SK and got deposited the same in the malkhana. It is further the case of prosecution that after registration of FIR, further investigation was marked to SI Udham Singh and thereafter ACP Sunil Kumar lodged DD No.114 A regarding compliance of Section 55 of the NDPS Act. It is further the case of SC No. 3212021 State Vs. Rahul @ Ravan Page 3 of 26 prosecution that ACP Sunil Kumar prepared inventory with regard to the recovery of smack dated 27.02.2021. It is further the case of prosecution that after registration of FIR, Ct. Somveer alongwith SI Udham Singh reached the spot and Insp. Raghuveer produced the accused and handed over the documents to SI Udham. SI Udham prepared site plan at his instance and thereafter, accused was arrested and his personal search was conducted and during the personal search of accused, notice under Section 50 NDPS Act, one blue colour mobile phone and key of motorcycle were recovered from the accused and thereafter, SI Uddham recorded the disclosure statement of accused. It is further the case of prosecution that thereafter, Insp. Raghuveer took the motorcycle of accused to the police station and on the same day, i.e. 27.02.2021, Insp. Raghuveer sent intimation u/s 57 NDPS Act to the ACP, same was forwarded by the SHO Najafgarh. It is further the case of prosecution that thereafter, SI Udham got conducted medical examination of accused at RTRM Hospital and after medical examination of accused, they tried to trace out the co- accused and thereafter, accused sent to JC. It is further the case of prosecution that on 27.02.2021, SI Udham sent intimation u/s 57 of NDPS Act to ACP Najafgarh through SHO, regarding the arrest of the accused Rahul @ Ravan and on 01.03.2021, SI Udham moved an application u/s 52A NDPS Act before Session Courts and the abovesaid application was marked to Ld. Duty MM, Dwarka and thereafter, SI Udham alongwith Ct. Bharat who brought the sealed case property from the malkhana and Ct. Eklavya reached at in the court of Sh. Deepak Vats, Ld. MM where Ld. MM carried out the proceedings u/s 57 NDPS Act. It is further the case of prosecution that after taking two samples by Ld. MM, all three sealed pulandas with the seal of DV and sample seal were handed over to SI Udham SC No. 3212021 State Vs. Rahul @ Ravan Page 4 of 26 and on his direction Ct. Bharat deposited the same at malkhana. It is further the case of prosecution that on 02.03.2021, on the direction of SI Udham, samples were sent to FSL Rohini vide RC no. 66/21/21 (Mark X) through Ct. Sumit and thereafter, SI Udham collected the ownership of motorcycle bearing no.DL9SBT-6652 from the Transport Department and thereafter, SI Udham prepared the charge- sheet and sent to Court.
3. Vide order dated 22.11.2022, the charge for the offence punishable under Section 21 (b) of the NDPS Act was framed against the accused on the allegations that accused was found in possession of 90 grams (containing chemicals 'Codeine', 'Morphine', 'Acetylcodeine', 'Monoacetylmorphine', 'Trimethoprim', 'Papaverine' and 'Caffeine') to which he pleaded not guilty and claimed trial. It is a matter of record that again on 17.12.2022 amended charge was framed against the accused for the offences punishable under Section 21 (b) and 25 of NDPS Act as accused was found in possession of heroin while transporting the same in motorcycle bearing registration no. DL9SBT 6652.
4. The prosecution examined 10 witnesses in support of its case who are as follows:-
5. PW-1 is HC Bharat Singh. He has deposed that on 01.03.2021, he was posted as Constable at PS Najafgarh and on that day, he joined the investigation along with IO and collected the case property from the malkhana vide road certificate. He has further deposed that thereafter, he alon gwith IO reached at Dwarka Court and Ct. Eklavya/photographer also joined them at Dwarka Court. He has SC No. 3212021 State Vs. Rahul @ Ravan Page 5 of 26 further deposed that after reaching Dwarka Court, he produced the case property before the Sessions Court from there application was sent to Ld. Duty Magistrate, Sh. Deepak Vats for withdrawal of samples and thereafter, sealed transparent plastic box/case property sealed with the seal of RM and SK produced before the Sh. Deepak Vats, Ld. MM, Dwarka from where Ld. MM took two samples marked as A1 and A2 from the transparent plastic box, marked A and both samples were separately kept in transparent plastic box and separately sealed and remaining substance i.e. 79.35 grams were kept in the same transparent plastic box. He has further deposed that all three transparent plastic box were sealed with the seal of doctor tape and converted into pulanda and all three plastic box are sealed with the seal of DV. He has further deposed that Ct. Eklavya/photographer took the photographs of proceedings of withdrawal of samples and thereafter, he took all three sealed pulandas and handed over to the MHC(M) and deposited in the malkhana and till the case property was in his custody, it was not tampered with. He has correctly identified the accused before the court. He has also correctly identified the case property which is from Ex.P1 to Ex.P3. This witness was cross- examined by the Ld. defence counsel.
6. PW-2 is Ct. Eklavya. He has deposed that On 01.03.2021, he was posted as Constable at DCP Office, Dwarka as a photographer and on that day, he reached at Dwarka Court, where Ct. Bharat and IO met him and after reaching Dwarka Court, Ct. Bharat and IO produced the case property alongwith application before the Sessions Court from where application was sent to Sh. Deepak Vats, Ld. Duty Magistrate, Dwarka for withdrawal of samples. He has further deposed that thereafter, sealed transparent plastic box/case SC No. 3212021 State Vs. Rahul @ Ravan Page 6 of 26 property sealed with the seal of RM and SK produced before the Sh. Deepak Vats, Ld. MM, Dwarka and thereafter, Ld. MM took two samples marked as A1 (weight 14.09 gram) and A2 (weight 14.28 gram) from the transparent plastic box, marked A and both samples were separately kept in transparent plastic box and separately sealed and remaining substance i.e. 79.35 grams were kept in the same transparent plastic box. He has further deposed that all three transparent plastic box were sealed with the seal of doctor tape and converted into pulanda and all three plastic box are sealed with the seal of DV and he took the photographs of proceedings of withdrawal of samples. He has further deposed that he cannot produce the photographs as same were not lying with him. This witness was also cross-examined by the Ld. defence counsel.
7. PW-3 is SI Udham. He has deposed that on 27.02.2021, he was posted as SI at PS Najafgarh and on that day, after the registration of FIR, the present case was marked to him by the order of SHO and he reached at the spot i.e. Jai Vihar Nala, near Ghasipura Picket, Najafgarh, where SI Raghubir along with raiding party members and accused Rahul @ Ravan met him. He has further deposed that IO/SI Raghubir handed over all the documents and custody of accused to him and thereafter, he prepared site plan at the instance of SI Raghubir, same was exhibited as Ex. PW-3/A, bearing his signature at point A and thereafter, SI Raghubir took the motorcycle bearing no.DL-9SBT-6652 of the accused and went to police station. He has further deposed that after that, he interrogated the accused and after interrogation, accused was arrested vide arrest memo Ex. PW-3/B, bearing his signature at point A. He has further deposed that thereafter, he took the personal search of accused vide SC No. 3212021 State Vs. Rahul @ Ravan Page 7 of 26 memo, same was Ex. PW-3/C, bearing his signature at point A and during the personal search of accused, notice under Section 50 NDPS Act and key of motorcycle and one blue colour mobile phone make Lava were recovered. He has further deposed that he recorded disclosure statement of accused, same was Ex. PW-3/D, bearing his signature at point A. He has further deposed that thereafter, he got conducted medical examination of accused at RTRM Hospital and after medical examination of accused, they tried to trace out the co- accused and thereafter, accused sent to JC. He has further deposed that on 27.02.2021, he sent intimation under Section 57 of NDPS Act to ACP Najafgarh through SHO, same was Ex.PW3/E, bearing his signature at point A, regarding the arrest of the accused Rahul @ Ravan. He has further deposed that on 01.03.2021, he moved an application under Section 52A NDPS Act before Session Courts, same was Ex.PW3/F bearing his signature at point A. He has further deposed that the abovesaid application was marked to Ld. Duty MM, Dwarka and deposed about the proceedings conducted before Sh. Deepak Vats, Ld. Duty MM, Dwarka. He has further deposed that he collected the ownership of motorcycle bearing no.DL9SBT-6652 from the Transport Department, certified copy of above said motorcycle documents are Mark X1 and thereafter, he prepared the charge-sheet and sent to Court. He has correctly identified the accused before the court. He has also correctly identified the motorcycle bearing no. DL9SBT 6652 which is Ex.P4. This witness was also cross-examined by the Ld. defence counsel.
8. PW-4 is Ct. Kulwant. He was on patrolling duty and has deposed on the lines of PW-3 SI Udham and Insp. Raghuveer. This witness was also cross-examined by the Ld. Defence Counsel.
SC No. 3212021 State Vs. Rahul @ Ravan Page 8 of 269. PW-5 is ASI Rajneesh. He has deposed that on 27.02.2021, he was posted as MHC(M) at PS Najafgarh, New Delhi and on that day, he was called by SHO/Inspectopr Sunil Kumar and he deposited one sealed pullanda, FSL form and carbon copy of seizure memo with him and he made entry in register no. 19. He has further deposed that the aforesaid pullanda was having seals of RM and SK and the FSL form was also having the same seals and the relevant entry in register No. 19 is at serial No.3495 and the copy of the same was Ex.PW-5/A. He has further deposed that on the same day, IO/SI Raghubir deposited one motorcycle bearing registration no.DL9SBT- 6652 and on 01.03.2021, sealed pulanda was handed over to Ct. Bharat for withdrawal of samples at Dwarka, Court and after proceedings of withdrawal of samples, Ct. Bharat handed over to him three sealed pulandas sealed with the seal of DV marked as A, A1 and A2. He has further deposed that on 02.03.2021, one sealed pullanda Mark A1 pertaining to this case was sent to FSL Rohini through Ct. Sumit vide RC No.66/21/21 and copy of the same was already Ex.P/D/5, now Ex.PW5/B and after returning from FSL, Ct. Sumit handed over him the receipt of the FSL and copy of the same was already Ex.P/D/6 now Ex.PW5/C. He has further deposed that till the case property and FSL form remained in his custody the same were not tampered with. This witness was also cross-examined by the Ld. defence counsel.
10. PW-6 is ACP Sunil Kumar. He has deposed that on 27.02.2021, he was posted as SHO PS Najafgarh and on that day, he was present in the police station and at that time, Ct. Kulwant shared a secret information with him regarding Narcotic substance and after satisfaction, the secret information was shared by him with ACP upon SC No. 3212021 State Vs. Rahul @ Ravan Page 9 of 26 which, ACP Dabri ordered for raid on which, SI Raghubir constituted a raiding party consisting of Ct. Somveer and Ct. Kulwant. He has further deposed that thereafter, at about 03:25 p.m, SI Raghubir informed him telephonically regarding the apprehension of the accused and thereafter, he reached the spot where ACP was already found present along with SI Raghubir, Ct. Somveer, Ct. Kulwant and accused Rahul @ Ravan. He has further deposed that in his presence as well as in the presence of ACP, SI Raghubir apprised the accused about his legal right that his search can be taken in the presence of any Magistrate or Gazetted officer and the accused was also apprised before his search, he can take search of police party and police vehicles. He has further deposed that SI Raghubir prepared notice under Section 50 NDPS Act and the notice under Section 50 NDPS Act was given to the accused in original and after going through the contents of the same, he has given his reply, stating therein that he did not want himself to be searched in front Gazetted Officer and Magistrate and did not want to take search of police party, the carbon copy of notice under Section 50 NDPS Act is already Ex.PW4/A and the reply of the accused is already Ex.PW4/B. He has further deposed that thereafter, SI Raghubir produced the accused before ACP and took his search and during the search, one polythene was recovered from the right pocket of his capree / lower and the recovered substance physically appeared to be smack and the colour of recovered substance was Mehroon. He has further deposed that thereafter, SI Raghubir weighed the recovered substance with the help of electronic weighing machine and the weight of recovered substance/smack was found 90 grams and thereafter, SI Raghubir kept the recovered substance in the same polythene and the said polythene was kept in a plastic box and the said box was converted into pullanda SC No. 3212021 State Vs. Rahul @ Ravan Page 10 of 26 with the help of doctor tape and sealed with the seal of RM and it was marked as 'Mark A'. He has further deposed that thereafter, SI Raghubir seized the case property vide seizure memo Ex.PW4/C, ACP Joginder Joon signed on the seizure memo and thereafter, SI Raghubir filled FSL form at the spot having the seal impression of RM, motorcycle no.DL9SBT-6652 was seized vide memo Ex.PW4/D. He has further deposed that thereafter, ACP and he left the spot. He has further deposed that he went to police station and after some time, Ct. Somveer brought the rukka and one sealed pullanda duly sealed with the seal of RM with FSL form and carbon copy of seizure memo, rukka was handed over to the Duty Officer for the registration of the FIR and the sealed pullanda along with FSL form and carbon copy of seizure memo was produced before him. He has further deposed that he counter sealed the same with the seal of SK and got deposited the same in the malkhana and after registration of FIR, further investigation was marked to SI Udham Singh and thereafter, he lodged DD No.114 A regarding compliance of Section 55 of the NDPS Act and prepared inventory with regard to the recovery of smack dated 27.02.2021, same was Ex. PW-6/A, bearing his signature at point A. He has correctly identified the accused before the court. He has also correctly identified the case property which is from Ex.P-1 to Ex.P-4. This witness was cross-examined by the Ld. defence counsel.
11. PW-7 is HC Sumit Kumar. He has deposed that on 01.03.2021, he was posted at PS Najafgarh as Constable and on that day, IO/SI Uddham alongwith Ct. Bharat came at the malkhana PS Najafgarh and collected the case property from the malkhana and on the same day, after withdrawal of samples, Ct. Bharat deposited three sealed pulandas duly sealed with the seal of 'DV' and marked as Mark SC No. 3212021 State Vs. Rahul @ Ravan Page 11 of 26 A, A1 and A2. He has further deposed that on 02.03.2021, he collected sealed sample Mark A1 sealed with the seal of A1 from the malkhana, Najafgarh vide RC No. 66/21/21, same was already Ex.P/D/5 and PW-5/B bearing his signature at point A for depositing at FSL, Rohini and after depositing the sample at FSL, Rohini, he handed over the acknowledgement to the MHC(M), same is Ex.P/D/6 and already Ex.PW-5/C. He has further deposed that till the case property was under his custody no tempering was carried out with it. This witness was also cross-examined by the Ld. Defence Counsel.
12. PW-8 is Ct. Somveer. He has deposed on the lines of PW-3 SI Udham and Insp. Raghuveer. This witness was also cross- examined by the Ld. defence counsel.
13. PW-9 is ACP Joginder Joon. This witness has gone to the spot and has deposed on the same lines as deposed by PW-6 ACP Sunil Kumar. This witness was cross-examined by the Ld. defence counsel.
14. PW-10 is Insp. Raghuveer. He has deposed that on 27.02.2020, he was posted as SI at PS Najafgarh and on that day, Ct. Kulwant shared secret information with Duty Officer telephonically and thereafter, he alongwith Ct. Somveer reached at the spot i.e. Jai Vihar Nala, Ghasipura Picket vide DD No.64A, same was already Ex.P/D/3 where Ct. Kulwant met them. He has further deposed that Ct. Kulwant shared the secret information with them and they also met the secret informer. He has further deposed that thereafter, he prepared a raiding party consisting of secret informer, Ct. Kulwant and Ct. Somveer and thereafter, they requested some passers by to join the SC No. 3212021 State Vs. Rahul @ Ravan Page 12 of 26 investigation but all refused the same and left the spot without disclosing their names and addresses. He has further deposed that as per his direction, members of the raiding party took their positions near Jai Vihar Nala, near Ghasipura Picket and at about 03.20 p.m, one boy was seen coming towards the spot on motorcycle bearing registration no.DL9SBT-6652 from the side of Jai Vihar, who was apprehended by them and the name of accused was revealed as Rahul @ Ravan and thereafter, he shared the secret information with accused. He has further deposed that he informed through telephonically to the police station and thereafter, ACP Najafgarh and SHO reached at the spot and in the presence of ACP, SHO and he apprised the accused about his legal right that his search can be taken in the presence of any Magistrate or Gazetted officer. He has further deposed that the accused was also apprised before his search, he can take search of police party and police vehicles and he prepared notice under Section 50 NDPS Act. He has further deposed that the notice under Section 50 NDPS Act was given to the accused in original and after going through the contents of the same, he has given his reply, stating therein that he did not want himself to be searched in front Gazetted Officer and Magistrate and did not want to take search of police party, the carbon copy of notice under Section 50 NDPS Act was already Ex.PW4/A bearing his signature at point Y and the reply of the accused was already Ex.PW4/B. He has further deposed that he produced the accused before ACP and took his search and during the search, one polythene was recovered from the right pocket of his capree/lower and the recovered substance physically appeared to be smack and the colour of recovered substance was Mehroon. He has further deposed that thereafter, he weighed recovered substance with the help of electronic weighing machine and the weight of recovered SC No. 3212021 State Vs. Rahul @ Ravan Page 13 of 26 substance/smack was found 90 grams and thereafter, he kept the recovered substance in same polythene and the said polythene was kept in a plastic box and the said box was converted into pullanda with the help of doctor tape and sealed with the seal of RM and it was marked as 'Mark A'. He has further deposed that thereafter, he seized the case property vide seizure memo already Ex.PW-4/C, bearing his signature at point D. He has further deposed that ACP Joginder Joon signed on the seizure memo, motorcycle no. DL9SBT-6652 was seized vide memo already Ex.PW4/D bearing his signature at point C. He has further deposed that after use, seal was handed over to Ct. Somveer and thereafter, he prepared tehrir under Section 21 NDPS Act, same was Ex.PW-10/A bearing his signature at point A and handed over the same to Ct. Somveer along with carbon copy of seizure memo of case property and sealed case property for registration of FIR and proceedings under Section 55 NDPS Act and thereafter, Ct. Somveer went to police station. He has further deposed that after registration of FIR, Ct. Somveer alongwith SI Udham Singh reached the spot and he produced the accused and handed over the documents to SI Udham. He has further deposed that SI Udham prepared site plan at his instance, same is already Ex.PW3/A bearing his signature at point C and thereafter, accused was arrested vide arrest memo already Ex.PW3/B and his personal search was conducted vide memo already Ex. PW3/C. He has further deposed that during the personal search of accused, notice under Section 50 NDPS Act, one blue colour mobile phone and key of motorcycle were recovered from the accused and thereafter, SI Udham recorded the disclosure statement of accused vide memo already Ex.PW3/D. He has further deposed that thereafter, he took the motorcycle of accused to the police station and on the same day, i.e. 27.02.2021, he sent intimation SC No. 3212021 State Vs. Rahul @ Ravan Page 14 of 26 u/s 57 NDPS Act to the ACP, same was forwarded by the SHO Najafgarh, same was Ex.PW-10/B bearing his signature at point A. He has correctly identified the accused before the court. He has also correctly identified the case property which is from Ex.P1 to Ex.P4. This witness was cross-examined by the Ld. defence counsel.
15. It is a matter of record that on 19.12.2022, statement of accused was recorded under Section 294 Cr.P.C. wherein accused admitted the genuineness of certain documents i.e. Ex.P/D/1 to Ex.P/D/6. It is also matter of record that again on 01.02.2023, additional statement under Section 294 Cr.P.C. of accused was recorded wherein accused again admitted the genuineness of certain documents i.e. Ex.P/D/7 and Ex.P/D/8. It is also matter of record that during the trial, prosecution evidence was closed vide order dated 01.02.2023 and on 07.02.2023 i.e. today, statement of accused under Section 313 Cr.P.C was recorded whereby all the incriminating evidence was put to the accused to which he stated that he is innocent and has been falsely implicated in the present case. During the recording of the statement, the accused did not wish to lead defence evidence and matter was posted for final arguments.
16. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
FINDINGS:
17. The records of the present case reveal that the accused stands charged for the possession of an intermediate quantity of contraband i.e 90 grams of 'Codeine', 'Morphine', 'Acetylcodeine', 'Monoacetylmorphine', 'Trimethoprim', 'Papaverine' and 'Caffeine' SC No. 3212021 State Vs. Rahul @ Ravan Page 15 of 26 while transporting the same on a motorcycle bearing registration no. DL9SBT-6652. The stringent provisions are provided under the law qua the punishment, especially in the NDPS cases. The scheme of the NDPS Act and its objects and reasons mandate that the prosecution must prove compliance with various safeguards ensured under the Act. The NDPS Act prescribes stringent punishment and therefore, the balance must be struck between the need for the law and the enforcement of such law on one hand and the protection of the citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on the exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband. In the present case, the accused was apprehended at Jai Vihar Nala, near Ghasipura Picket, Najafgarh, New Delhi, and was found in possession of an intermediate quantity of 90 grams of 'Codeine', 'Morphine', 'Acetylcodeine', 'Monoacetylmorphine', 'Trimethoprim', 'Papaverine' and 'Caffeine'. Hence, it has to be proved that the accused was found in possession of the contraband. The record reveals that no independent public person was joined in the proceedings.
18. It is to be kept in mind that the non-joining of public witnesses itself cannot become a ground for acquittal if the case of the prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution cannot be held to be vulnerable to non-examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution SC No. 3212021 State Vs. Rahul @ Ravan Page 16 of 26 cannot be disbelieved. The proposition is not disputed but the balance has to be maintained if some doubt is created regarding the involvement of the accused. Each case has its own facts and circumstances.
19. Accordingly, it is trite that mere failure to associate public witnesses in search and seizure proceedings is not fatal to the case of the prosecution. However, in such a case, the burden lies heavily on the prosecution to prove two things. Firstly, a genuine and sincere effort was made by the investigating officer to join independent persons in the proceedings and secondly, the evidence of the official witnesses does not suffer from any infirmity.
20. In the present case, as per the story of the prosecution, on 27.02.2020, on receiving secret information, Inspector Raghuveer along with Ct. Somveer reached the spot i.e Jai Vihar Nala, Ghasipura Picket vide DD No.64A and apprehended the accused with illegal contraband. Though in the present case, it has been tried to be brought on record from the testimony of prosecution witnesses that sincere efforts were made to join the public witnesses but none of them were inclined to join.
21. The testimonies of the members of the raiding team suffer from contradictions and it is evident therefrom that the witnesses have remained evasive on material aspects. As far as the testimonies of witnesses about the joining of independent witnesses are concerned, PW-3 SI Udham has deposed in his cross-examination that there was one Nala near the spot along with one main road and some vehicles were passing through the spot, however, he had not called any public SC No. 3212021 State Vs. Rahul @ Ravan Page 17 of 26 persons to join the proceedings. PW-4 Ct. Kulwant has deposed in his cross-examination that it was a busy road and various vehicles were passing through the road and SI Raghubir requested few public persons to join the proceedings but all of them refused, however, no legal action / notice was given to them. PW-6 ACP Sunil Kumar (the then SHO) has deposed in his cross-examination that he remained at the spot for about half an hour and traffic was passing near the picket. He has further deposed that during this proceedings, no public witness was joined by the IO. PW-8 Ct. Somveer has deposed in his cross- examination that it was a busy road and various vehicles were passing through the spot and various public persons were also passing through the road and SI Raghubir requested few public persons to join the proceedings but all of them refused, however, no legal action / notice was given to them. PW-9 ACP Joginder Joon has deposed in his cross- examination that it was a busy road and various public persons were passing through the spot and SI Raghubir had not called any public person in his presence. PW-10 Inspector Raghubir has deposed in his cross-examination that it was a busy road and some vehicles were passing through the spot and he requested 4-5 public persons to join the proceedings but all of them refused, however, no legal action / notice was given to them. Hence, from the examination of the above witnesses, it is evident that the public persons were present at the spot but the perusal of the cross-examination of the witnesses shows that neither any sincere efforts have been made by the IO to join any public person in the investigation nor served any notice to them for non-joining the investigation despite remaining at the spot for a considerable period.
22. Admittedly, the police officials remained on the spot for a SC No. 3212021 State Vs. Rahul @ Ravan Page 18 of 26 considerable time and the IO had ample time to join the independent person in the proceedings. It is the case of the prosecution that public persons were requested to join the proceedings but they declined. It is a quite surprising fact that despite the availability of public witnesses, the investigating agency could not associate even a single public witness at any stage of the investigation. It has been stated casually and routinely that the public persons, who were asked to join the investigation, declined to do so and went away without disclosing their names and addresses. Sub-section (8) of Section 100 Cr.P.C clearly states that if a public witness refuses or neglects to attend a search without reasonable cause despite an order in writing, he shall be deemed to have committed an offence under Section 187 IPC. There is nothing on record to indicate that the investigating officer had served or even attempted to serve any order in writing upon any public witness. So much so, neither the names nor the addresses of the persons who refused to join the proceedings have been given. All the above leads to the inevitable inference that the investigating agency was not interested to make any public witness a part of the raiding team and thus there has been a deliberate disregard of the statutory safeguards relating to search and seizure on its part which renders the recovery proceedings unworthy of credence. Hence, all these facts give some doubt to the story of the prosecution.
23. Apart from this, PW-6 ACP Anil Kumar (the then SHO) has deposed in his cross-examination that he reached the spot at about 3:40 p.m in a government vehicle. Even, PW-9 ACP Joginder Joon has deposed in his cross-examination that he reached the spot in a government vehicle i.e Innova. The prosecution has also failed to produce either the log book of the official vehicle used by the ACP or SC No. 3212021 State Vs. Rahul @ Ravan Page 19 of 26 SHO at the relevant time. Since the log books are maintained for recording the movement of the official vehicles, there should have been no difficulty at all in producing such evidence if indeed the ACP & SHO had moved to the spot from their office in a government vehicle. PW-9 has admitted as correct that whenever the government vehicle is used, logbook is being maintained by the driver of the vehicle and the driver must have maintained the logbook on the said date. Even, PW-6 has admitted as correct in his cross-examination that the logbook was maintained for the government vehicle, however, he could not tell whether the IO had obtained the copy of logbook from his office or not. Hence, it creates a grave suspicion regarding the truthfulness of the case of the prosecution and presence of PW-6 and PW-9 at the spot.
24. Further, as per the prosecution story, the accused was apprehended with the illegal contraband while transporting the same on a motorcycle bearing registration no. DL9SBT-6652. PW-10 Inspector Raghuveer i.e the IO of the case has deposed in his cross- examination that he had not mentioned about the key in the recovery memo of the motorcycle i.e Ex. PW-4/D. Although, PW-8 Ct. Somveer has admitted as correct in his cross-examination that the key has not been mentioned in the recovery memo of motorcycle i.e Ex. PW-4/D. The perusal of Ex. PW-4/D shows that the fact regarding the recovery of the key of the motorcycle has not been mentioned. It is a very surprising fact that if no key was recovered then how the motorcycle was being driven by the accused.
25. Further, as per the cross-examination of PW-4 Ct. Kulwant, Ct. Somvir went to the police station for registration of FIR SC No. 3212021 State Vs. Rahul @ Ravan Page 20 of 26 at 4:30 p.m and came back at the spot at about 6:00 p.m along with SI Udham and both were in a private car which is in contrast to the deposition of PW-8 Ct. Somveer who has deposed in his cross- examination that he went to the police station in a bike for registration of the FIR at about 6:05 p.m and came back at the spot after 7:00 p.m along with SI Udham in his car.
26. Furthermore, PW-6 ACP Sunil Kumar & PW-9 ACP Joginder Joon has deposed in his cross-examination that the proceedings were conducted while sitting in a picket. On the contrary, PW-4 Ct. Kulwant has deposed in his cross-examination that all the proceedings were conducted while sitting in a police booth which is in total contrast to the deposition of PW-10 Inspector Raghuveer who has deposed in his cross-examination that he conducted all the proceedings while sitting on a nala and SI Udham also conducted all the proceedings on the same nala.
27. Further, PW-3 SI Udham has deposed in his cross- examination that Ct. Sombir and Ct. Kulwant took the accused in a private car of Ct. Kulwant for his medical examination whereas PW-8 Ct. Somveer has deposed in his cross-examination that he and Ct. Kulwant left the spot along with accused for his medical examination in a private car which is in contrast to the deposition of PW-4 Ct. Kulwant who has deposed in his cross-examination that one government gypsy was called at the spot and accused was taken in the said gypsy for his medical examination.
28. Further, PW-3 SI Udham has deposed in his cross- examination that they finally left the spot at around 8:45 p.m whereas SC No. 3212021 State Vs. Rahul @ Ravan Page 21 of 26 PW-4 Ct. Kulwant has deposed in his cross-examination that they all including SI Raghubir left the spot at around 7:00 p.m. It is a matter of record that the accused was arrested at the spot itself and it is evident from the record that the arrest memo Ex. PW-3/B bears the signatures of Ct. Kulwant at point B which was prepared at 8:15 p.m. It is quite a surprising fact that when PW-4 Ct. Kulwant had left the spot at about 7:00 p.m after completion of investigation then how the arrest memo of the accused which was prepared at 8:15 p.m and that too having the signatures of Ct. Kulwant. From the perusal of the testimonies of above witness show that there is a great variation with regard to the timings.
29. Further, PW-10 Inspector Raghuveer has deposed in his cross-examination that ACP & SHO came at the spot at 3:42 p.m and they both left the spot at about 5:15 p.m. On the contrary, PW-9 ACP Joginder Joon has deposed in his cross-examination that SHO came at the spot at around 3:45 p.m and left the spot after leaving the spot by him.
30. Further, as per the cross-examination of PW-6 ACP Sunil Kumar (the then SHO), the recovery memo and notice under Section 50 of the NDPS Act were prepared in his presence, however, he admitted as correct that neither the recovery memo nor notice under Section 50 NDPS Act bear his signatures. However, PW-8 Ct. Somveer has deposed in his cross-examination that only notice under Section 50 NDPS Act was prepared in the presence of ACP which is again in contrast to the deposition of PW-4 Ct. Kulwant who has deposed in his cross-examination that notice under Section 50 of the NDPS Act, recovery memo and memo of motorcycle were prepared in SC No. 3212021 State Vs. Rahul @ Ravan Page 22 of 26 the presence of ACP and ACP signed all the said three documents. Rather, PW-9 ACP Joginder Joon has deposed in his cross- examination that SI Raghubir prepared seizure memo, notice under Section 50 of the NDPS Act and besides this, no other document was prepared by SI Raghubir. He has further deposed that he did not remember whether SHO had signed any document whereas PW-10 Inspector Raghuveer has deposed in his cross-examination that only notice under Section 50 NDPS Act and seizure memo were prepared in the presence of ACP. He has further deposed that he only prepared notice under Section 50 of the NDPS Act and recovery memo in the presence of SHO, however, SHO had not signed any of the document. He has further deposed that there is no document on record which was prepared on the spot to show that SHO visited the spot. The perusal of record shows that Ex. PW-4/A i.e notice under Section 50 NDPS Act and Ex. PW-4/D i.e memo of motorcycle do not bear the signatures of ACP Joginder Joon. The perusal of record further shows that Ex. PW- 4/C i.e recovery memo bears the signatures of ACP Joginder Joon at point C. The perusal of record further shows that none of the documents bear the signatures of SHO although, he remained at the spot for a considerable time. There would have been no difficulty in obtaining the signatures of SHO on the documents to secure his presence at the spot. The above-said lacunas are fatal to the case of the prosecution and cast serious doubt in the story of prosecution.
31. Further, PW-3 SI Udham has deposed in his cross- examination that he only prepared site plan in the presence of Raghubir and took personal search of the accused in the presence of SI Raghubir, however, SI Raghubir had not signed the personal search memo whereas PW-8 Ct. Somveer has deposed in his cross-
SC No. 3212021 State Vs. Rahul @ Ravan Page 23 of 26examination that SI Udham prepared site plan, arrest memo, disclosure statement and personal search memo in the presence of SI Raghubir and SI Raghubir signed all the said documents. On the contrary, PW-4 Ct. Kulwant has deposed in his cross-examination that SI Udham prepared site plan, arrest memo and personal search memo in the presence of SI Raghubir, however, he did not remember whether SI Raghubir signed the said documents which is again in contrast to the deposition of PW-10 Inspector Raghuveer who has deposed in his cross-examination that SI Udham prepared site plan, arrest memo, disclosure statement and personal search memo in his presence. However, the perusal of record shows that only Ex. PW-3/A i.e site plan bears the signatures of SI Raghuveer at point C and except this document, none of the other documents i.e arrest memo, personal search memo and disclosure statement of the accused (as stated by the above said witnesses) bear the signatures of SI Raghuveer.
32. The record reveals that as per personal search memo i.e Ex. PW-3/C, the accused was also having one blue colour LAVA mobile phone. Further, if the accused was apprehended with contraband then the same was to be delivered to somebody and he must have called the person before leaving his house to whom it was to be sold or supplied. Further, in this regard, call details of the accused should have been checked and verified but the same has not been done in this case which shows that IO has not made any sincere efforts.
The attention of the court is drawn to the judgment titled Masoom & Ors. Vs. State of NCT of Delhi, 2015 III AD (CRI) (DHC) 349 passed by Hon'ble High Court of Delhi wherein it was held that "23. The prosecution has not given any explanation as to why cellular evidence was not brought on record. It has come on record that A-2 had a conversation on a mobile in his possession at IGI Airport. A personal search memo shows a recovery of two Nokia mobiles, with Vodafone SC No. 3212021 State Vs. Rahul @ Ravan Page 24 of 26 and Idea Chips. Similarly, on the personal search of A-1, one mobile makes Fashion with two SIMs was recovered. The Investigation Officer did not attempt to collect call details records about these mobile phones to ascertain as to whom, at what time, and place the appellants were in regular and constant touch. Call Details Records were relevant to ascertain appellant's location at the relevant time and their nexus with themselves and others". It is clear from the testimony of witnesses that no sincere efforts have been made to apprehend the source of contraband and recipient of same despite taking police custody to the remand of the accused in the present matter.
33. Further, PW-5 ASI Rajneesh has deposed in his cross- examination that SHO/Inspector Sunil Kumar called him and deposited the sealed pullanda, FSL form and carbon copy of seizure memo upon which PW-5 made entry at serial no.3495 in register no. 19 as Ex. PW-5/A. However, PW-5 has admitted as correct in his cross-examination that the name of the depositor in register no. 19 is SI Raghubir and the said fact has also been admitted as correct by PW- 6 ACP Anil Kumar in his cross-examination. Hence in these circumstances, tampering with case property cannot be ruled out and it creates a serious doubt in the story of the prosecution.
34. Hence, the above-said contradictions cast grave doubt on the presence of witnesses on the spot. From the above discussion of testimonies of prosecution witnesses, it is clear that the witnesses have also created a dent in the case of the prosecution as all the witnesses are giving different versions though all were present at the same time together and were members of the investigation team.
35. Hence, from the above discussion, it is observed that there are major contradictions in the deposition of the prosecution witnesses, the statement of official witnesses without corroboration from independent sources cannot be believed to base conviction on SC No. 3212021 State Vs. Rahul @ Ravan Page 25 of 26 stringent provisions of the NDPS Act. From the above-mentioned facts and circumstances and other discussions detailed above, it becomes very clear that the present case is not such a case where the complexity of the accused has been proved beyond a reasonable doubt. From the testimony of the witnesses and the above discussions, it is crystal clear that there is a shadow of doubt upon the accused regarding the commission of charged offence framed against him. Thus accused is required to be acquitted in the present case by giving him the benefit of doubt. Thus on all counts, the guilt of the accused has not been duly proved.
36. Hence, considering the overall facts and circumstances of the present and given the above observations, accused Rahul @ Ravan is acquitted of the offences punishable under Section 21 (b) & 25 of the NDPS Act by giving him the benefit of doubt.
37. At the request of the accused, his previous bail bonds are extended in terms of Section 437A Cr.P.C and shall remain in force for six months from today.
38. Case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of, as per rules. File be consigned to Record Room, after due compliance. DEEPAK Digitally signed by DEEPAK WASON WASON Date: 2023.02.07 14:20:16 +0530 Pronounced in the open court (Deepak Wason) today i.e 07th February, 2023 Special Judge (NDPS): SW District Dwarka Courts: New Delhi SC No. 3212021 State Vs. Rahul @ Ravan Page 26 of 26