Delhi District Court
Sc No. 8/11 State vs . Anil Kumar & Ors. on 31 January, 2014
SC No. 8/11 State Vs. Anil Kumar & Ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 8/11
ID No. 02403R0031322011
FIR No. 56/10
PS Special Cell
u/s 21/29 NDPS Act
State Vs. 1. Anil Kumar
S/o Sh. Tara Chand
R/o A522, Pratap Vihar,
Aman Vihar, Delhi
2. Sandeep Kumar
S/o Sh. Puran Mal
R/o H.No. T111, Mangol Puri
Delhi.
3. Taj Mohamed
S/o Sh. Sayyed Wafa
R/o U466, Mangol Puri Delhi
4. Sageer Khan
S/o Sh. Chand Khan
R/o 108, Gali no. 2, New
Mustafabad, PS Gokulpuri
Delhi
Date of Institution : 07.04.2011
Judgment reserved on : 17.01.2014
Date of pronouncement : 31.01.2014
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JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21 and section 29 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as "NDPS Act").
2. Briefly stated the allegations against the accused persons as contained in the chargesheet and as deposed by the prosecution witnesses are as follows:
(a) On 16.12.2010 at 10.30 AM, Inspector Satender Vashisht received a secret information that three persons namely Taj Mohamed, Anil and Sandeep are indulging in supply of heroin and would be coming at bus stand no. 908, Sultanpuri between 12:0001:00 PM on the said day itself and that if a raid is conducted, heroin can be recovered from them.
(b) The information was brought to the notice of Inspector Attar Singh and ACP Subhash Tandon who gave directions for necessary action to be taken. DD entry no. 11 was also lodged in this regard in the Special Cell and as per the directions of the senior officials, a raiding team comprising of Inspector Satender Vashisht, ASI Shamsher, HC Bijender, HC Suresh, HC Narender, Ct. Sandeep, ASI Keval Kishan and HC Dilawar and secret informer left the office in govt. vehicle no. DL 1CH 9796 and private Santro car bearing no. DL 4CS 2990 at about 11.15 AM FIR No.56/10 PS Special Cell Page 2 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
for the spot.
(c) On reaching the spot, IO Inspector Satender Vashisht requested 8 passersby, 4 bus drivers and two public persons namely Kamal and Ram Karan to join the raiding team but none of them agreed to do so. The members of the raiding team then positioned themselves near the spot and IO Inspector Satender Vashisht took position alongwith the informer at the north side of the bus stand.
(d) At about 12.05 PM, one person came at the bus stand from Jalebi Chowk side and stood on Pooth road and started waiting for someone and the said person was identified as the suspect Taj Mohamed by the secret informer. After 57 minutes, two more persons came from Pooth Road side and stood near Taj Mohamed and the said persons were identified as the suspect Anil and Sandeep by the secret informer. The accused Anil was then handing over a blue colour polythene to Taj Mohd and at that point of time, all the three were surrounded by the raiding team.
(e) The IO introduced himself and the members of the raiding team to them and on enquiry, the accused confirmed that their names were Taj Mohamed, Anil and Sandeep. Inspector Satender Vashisht disclosed the secret information to them and they were then informed about their legal rights and were issued notices u/s 50 of NDPS Act and were made to FIR No.56/10 PS Special Cell Page 3 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
understand that they have a legal right to be searched before the Magistrate or a Gazetted Officer. All the accused refused to exercise the said rights and their refusal was written on the notices by accused Anil and Sandeep themselves and refusal of accused Taj Mohamed was written on his notice by Inspector Satender Vashisht.
(f) Thereafter, Inspector Satender Vashisht conducted the search of the accused Taj Mohamed and one blue colour polythene packet was recovered from the left pocket of his leather jacket. The said packet was opened which in turn was found containing one transparent polythene having cream colour powder, which on testing with field testing kit, gave positive result for heroin. The recovered heroin was weighed and its total weight came out to be 300 grams. Two samples of 5 grams each were taken out from the recovered heroin and were put in two separate polythenes and were converted into cloth pullandas which were then given Mark S1 and S2. The remaining 290 grams heroin was also converted into a cloth pullanda and given Mark 'A'. All the pullandas were sealed by the IO with the seal of 'SV'. The FSL Form was filled and the impression of the seal was then affixed on the Form FSL. Seizure Memo was also prepared.
(g) Thereafter, Inspector Satender Vashisht conducted the search of the accused Sandeep and one transparent polythene having cream colour FIR No.56/10 PS Special Cell Page 4 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
powder was recovered from the right pocket of his pant, which on testing with field testing kit, gave positive result for heroin. The recovered heroin was weighed and its total weight came out to be 100 grams. Two samples of 5 grams each were taken out from the recovered heroin and were put in two separate polythenes and were converted into cloth pullandas which were then given Mark S3 and S4. The remaining 90 grams heroin was also converted into a cloth pullanda and given Mark 'B'. All the pullandas were sealed by the IO with the seal of 'SV'. The FSL Form was filled and the impression of the seal was then affixed on the Form FSL. Seizure Memo was also prepared. Accused Anil was also formally searched but no contraband was recovered during his search.
(h) The Rukka was prepared and was sent alongwith the all the pullandas, carbon copy of seizure memos and forms FSL through HC Bijender for registration of FIR. Further investigation was handed over to ASI Rakesh who came to the spot and prepared the site plan, arrested the accused persons and on interrogation the accused persons inter alia disclosed they used to take supply of heroin from one Sageer Khan of Karawal Nagar and on 16/12/2010 they all were to meet between 4:004:30 near Ganda Nala, Karawal Nagar to take delivery of more heroin from him and also to make payment to him for the heroin already taken by them from him.
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(i) Based on the said disclosures, all the accused persons were
taken to Ganda Nala, Karawal Nagar at 04:15 PM and accused Sageer was apprehended at about 04:30 PM near Ganda Nala, Karawal Nagar on the pointing out of Anil. After intercepting the accused Sageer, a notice u/s 50 of NDPS Act was served upon him and he was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. However he refused to exercise the said rights and his refusal was written on the notice by him. His cursory search was conducted in which a yellow colour polythene was recovered from his right hand. On opening, it was found containing two transparent polythenes which in turn were found containing cream colour and matiala colour powder. On testing the powder from both the said polythenes, by field testing kit, they gave positive result for heroin. The recovered substance was also weighed and polythene containing cream colour powder was found to be 200 grams and the polythene containing matiala colour powder was found to be 400 grams.
(j) Two samples of 5 grams each were taken out from both the recovered heroin and were put in separate polythenes and were converted into cloth pullandas which were then given Mark S5, S6, S7 and S8. The packets of remaining heroin were also converted into cloth pullandas and given Mark 'C' and 'D'. All the pullandas were sealed by the IO with FIR No.56/10 PS Special Cell Page 6 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
the seal of 'RK'. The FSL Form was filled and the impression of the seal was then affixed on the Form FSL. Seizure Memo was also prepared. Accused Sageer was also arrested.
(k) All the accused persons were then produced before SHO, PS Special Cell, Lodhi Colony and the case property was then deposited with the malkhana and statements of witnesses were recorded. Thereafter all the accused persons along with the members of the raiding team reached NR office, Rohini. Reports u/s 57 NDPS Act pertaining to the seizure and arrest of accused persons were submitted to the Reader of ACP.
(l) During the course of investigation, the sample pullandas of this case were sent to FSL, Rohini and after receiving the report from FSL, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed against all the accused persons for having entered into a conspiracy for sale and purchase of heroin and for having found in possession of the same and for thus having committed offences punishable u/s 21(b), 21(c) and section 29 of the NDPS Act.
4. In order to prove its case against the accused persons, the prosecution has examined 16 witnesses in all.
5. PW1 HC Suresh Kumar, PW7 ASI Bijender Singh and PW14 Inspector Satender Vashisht are members of the raiding team which had FIR No.56/10 PS Special Cell Page 7 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
apprehended the accused Taj Mohamed, Anil and Sandeep. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, DD No. 11, in which the secret information was reduced has been exhibited as Ex.PW14/A. The notices issued to the accused Taj Mohamed, Sandeep and Anil u/s 50 of the NDPS Act have been exhibited as Ex.PW1/A, Ex.PW1/B and Ex.PW1/C respectively and the refusal written on behalf of the accused persons on their respective notices have been exhibited as Ex.PW1/D, Ex.PW1/E and Ex.PW1/F. The seizure memos prepared with respect to the recovery of the heroin from accused Taj Mohamed and Sandeep have been exhibited as Ex.PW1/H and Ex.PW1/G respectively. The tehrir prepared at the spot has been exhibited as Ex.PW14/C.
6. PW2 HC Hawa Singh has interalia deposed that on 21/12/2010 on the directions of IO, he had gone to PS Special Cell, Lodhi Colony and had taken pullandas mark S1, S3, S5 and S6 along with two FSL forms from MHC(M) vide RC no. 174/21/10 and had got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M).
7. PW3 HC Manohar Lal, posted as Head Constable, Technical in MT workshop at Jamrudpur, has placed before this court, the log book of the vehicle no. DL1CH9796 Qualis. The relevant entry therein dated 16/12/2010 has been exhibited as Ex.PW3/A. FIR No.56/10 PS Special Cell Page 8 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
8. PW4 SI Gyan Chand has deposed that he is posted as SO ACP, Special Cell. As per the record produced by this witness, on 16/12/2010 DD no. 11 regarding secret information, report u/s 57 NDPS Act regarding seizure of heroin, prepared by SI Satender Vashisht and on 17/12/2010 report u/s 57 NDPS Act regarding arrest of all the accused persons, prepared by ASI Rakesh Kumar were received in the office of ACP 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.PW4/A to Ex.PW4/F.
9. PW5 Duty officer ASI Bhagwat Prasad has interalia deposed that he was the duty officer on 16/12/2010 and that on this date he had received the rukka of the present case through HC Bijender and had registered the FIR, Ex.PW5/A.
10.PW6 ASI Mathias Baxla has deposed that he was posted as MHC(M) at PS Special Cell on 16/12/2010 and that on this date, SHO of the said PS had deposited with him six sealed pullandas alongwith sample pullandas, sealed with the seal of SV and RSS and five sealed pullandas alongwith sample pullandas, sealed with the seal of RK and RSS and the said property was deposited by him in malkhana vide entry 1675, Ex.PW6/A and 1676, Ex.PW6/B. He has also deposed that on the same day ASI Rakesh Kumar had also deposited the articles of personal search of accused Anil, Taj Mohamed and Sageer with him and he has proved the FIR No.56/10 PS Special Cell Page 9 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
said entry at Sl. no. 1677 as Ex.PW6/C. According to his deposition, on 21/12/2010 he had also sent the samples to FSL Rohini through HC Hawa Singh vide RC no. 174/21/10, Ex.PW6/F and on 24/3/2011 Ct. Sandeep Singh had deposited fur pullandas sealed with the seal of FSL Rohini with him and he has proved the said entry at Sl. no. 1675 as Ex.PW6/E.
11.PW8 R.K. Singh, Nodal Officer from Bharti Airtel Ltd. has produced before the court, the call detail records of the telephone number 8527067331 for the period 16/10/2010 to 16/12/2010 and the same have been exhibited as Ex.PW8/A. The said witness has also produced the customer application form and copy of voter ID card with respect to the said number and as per the said documents Ex.PW8/C and Ex.PW8/D, the aforementioned phone was subscribed in the name of one Apharoj Khan s/o Chand Khan.
12.PW9 M.N. Vijayan, Nodal Officer from Tata Tele Services Ltd. has produced before the court, the call detail records of the telephone number 9211251656 for the period 16/10/2010 to 16/12/2010 and the same have been exhibited as Ex.PW9/A. The said witness has also produced the customer application form and copy of voter ID card with respect to the said number and as per the said documents Ex.PW9/C and Ex.PW9/D, the aforementioned phone was subscribed in the name of one Dinesh s/o Damodar.
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13.PW10 Inspector Rajender Sehrawat, has interalia deposed that on 16/12/2010, he was posted as SHO, PS Special Cell and on that day, HC Vijender Singh produced before him, six pullandas, one FSL Form and carbon copy of seizure memo. As per the deposition of this witness, he put the FIR number, his initials and his seal 'RSS' on all the pullandas and the FSL form and then got the said property deposited in the Malkhana by ASI M. Baxla MHC(M). He has further deposed that on the intervening night of 16/17 December, 2010 ASI Rakesh Kumar produced before him, five pullandas, one FSL Form and carbon copy of seizure memo. As per the deposition of this witness, he put the FIR number, his initials and his seal 'RSS' on all the pullandas and the FSL form and then got the said property deposited in the Malkhana by ASI M. Baxla MHC(M) and lodged DD no. 7A and 13A in this regard.
14.PW11 Sh. Dinesh Kumar has inter alia deposed that he was not using the mobile no. 9211251656 at any point of time and neither the CAF Ex.PW9/C was got deposited by him with the concerned mobile company nor are the details therein filled in his handwriting or on his instructions.
15.PW12 Dr. Kanaklata Verma, Senior Scientific Officer, FSL, Rohini has proved the report prepared by her with respect to the analysis conducted by her of the samples sent to FSL. The said report has been exhibited as FIR No.56/10 PS Special Cell Page 11 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
Ex. PW12/A and as per the said report, the samples mark S1,S3 and S5 were found to contain diacetylmorphine, paracetamol and phenobarbitone and sample mark S7 was found to contain diacetylmorphine and paracetamol and the percentage of diacetylmorphine were found therein to be 1.50%, 6.75%, 1.52% and 1.52% in Ex.S5, S7, S1 and S3 respectively.
16.PW13 SI Bhushan Kumar Azad has merely deposed that the investigation of this case was marked to him on 3/1/2011 and during investigation he had collected the attested copy of call detail records of accused Taj Mohamed, Sandeep and Sageer from Vodafone, Airtel and Tata Telecommunication, deposited the remnant samples with the MHCM Special Cell, Lodhi Colony and filed the charge sheet.
17.PW15 SI Rakesh Kumar is the second investigating officer of the present case who has inter alia deposed that he had reached the spot on 16/12/2010 and on reaching the spot he had met SI Satender Vashisht who had produced before him the accused Anil, Sandeep Kumar and Taj Mohamed and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW1/DA and had then interrogated the accused persons and thereafter pursuant to their disclosures had reached Karawal Nagar where accused Sageer was apprehended. He has also deposed that he had prepared the notice u/s 50 NDPS Act and had served it upon the accused Sageer. The said notice has been exhibited as FIR No.56/10 PS Special Cell Page 12 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
Ex.PW1/J. He has also specifically deposed that accused Sageer had refused to get himself searched before a Magistrate or a Gazetted Officer and the refusal asserted to have been given by the accused on the said notice has been exhibited as Ex.PW1/K. The seizure memo prepared with respect to the recovery of the heroin from accused Sageer has been exhibited as Ex.PW1/L. This witness has also inter alia proved the report prepared by him u/s 57 NDPS Act as Ex.PW15/F.
18.PW16 Anuj Bhatia, Nodal Officer from Vodafone Mobile Services Ltd. has produced before the court, the call detail records of the telephone number 9899181661 for the period 16/10/2010 to 16/12/2010 and the same have been exhibited as Ex.PW16/B. The said witness has also produced the customer application form and copy of voter ID card with respect to the said number and as per the said form Ex.PW16/D, the aforementioned phone was subscribed in the name of accused Sandeep only.
19.The entire aforementioned incriminating evidence was put to all the accused persons and their statements u/s 313 Cr.P.C were recorded. All the accused persons in their statements tendered u/s 313 Cr.PC have inter alia stated that they have been falsely implicated in this case and that no contraband had been recovered from their possession or at their instance. In particular, accused Taj Mohamed has stated that he was not FIR No.56/10 PS Special Cell Page 13 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
apprehended by the police officials in the manner deposed by them but infact he was forcibly picked up by them on 16.12.2010 at about 09.30 AM from S block bus stand, Mangol Puri. Accused Sandeep has also similarly deposed that he was not apprehended in the manner put forward by the prosecution witnesses but that infact he was picked up from some office in Pathar market near Jaipur Golden Hospital where he had gone to meet a friend of his. According to the statement tendered by accused Anil Kumar, he was also not apprehended in the manner put forward by the prosecution witnesses and the stand taken by him in his statement u/s 313 Cr.PC is that he was picked up from his residence at about 10.3011.00 AM on 16.12.2010 by the police officials and was forcibly brought to the office of Special Cell. Accused Sageer has also similarly taken a stand that he was picked up from his residential premises by Inspector Attar Singh on 16.12.2010 at about 0304.00 PM. According to this accused, on this date, Inspector Attar Singh had come to his premises and had asked him whether he knew one Guddu and that when he informed Inspector Attar Singh that Guddu is his friend and had gone away to his native place, Inspector Attar Singh took him to the office of Special Cell and falsely implicated him in this case.
20.Three witnesses have been examined on behalf of the defence DW1 Pooja, the wife of accused Anil Kumar has stepped into the witness box FIR No.56/10 PS Special Cell Page 14 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
and has inter alia deposed that her husband Anil Kumar was picked up by the police officials from their residence on 16.12.2010 at about 1010.15 PM in her presence. DW2 Salman is a young boy of 1314 years who has testified that he had seen 56 persons coming to Sageer's house and taking him away in the evening of a day. DW3 ASI Dinesh Kumar was summoned by the accused Sandeep and this witness has verified that accused Sandeep had written an application under the RTI Act, Ex.PW3/Y to the RTI Cell, PS Model Town, Delhi and in reply thereto, the records containing the location of the PCR van were provided to him. The said documents, as per his deposition have been exhibited as Ex.DW3/X.
21.After the conclusion of defence evidence, Ld. Defence counsels Sh. R.S. Kundu, Sh. Dharmender Bhan and Legal Aid Counsel, Sh. Qazi advanced final arguments before this court and also filed written submissions. Though Ld. APP for the State, Sh. Rajiv Mohan could not advance oral arguments before this court, he also filed written submissions before this court. The main contention taken on behalf of the defence challenging the case put forward by the prosecution are inter alia that there has been a violation of section 42 and 50 NDPS Act and that the material on record makes it apparent that there has been a tampering of the case property. Detailed submissions in this regard will be discussed later on in this judgment. Ld. Defence counsels have also submitted that the entire case FIR No.56/10 PS Special Cell Page 15 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
put forward by the prosecution is false and concocted and that is the reason no public witnesses were joined by the investigating officials in the investigation of this case. Certain contradictions in the deposition of police officials and the mobile phone call records have also been pointed out to contend that the said contradictions show that the version put forward by the prosecution is false. Ld. Legal Aid Counsel Sh. Qazi has also additionally submitted that the deposition of DW2, an independent witness clearly proves that accused Sageer was not apprehended in the manner put forward by the prosecution. He has also submitted that the records produced by DW3 before the court makes it apparent that the deposition of PW14 that no PCR van had passed by the spot of the apprehension during the entire search and seizure proceedings. In support of their contentions, Ld. Defence counsels have relied upon the following judgments:
● Hashim Vs. State 2000 Cri.L.J. 1510.
● Radha Kishan Vs. State 87(2000) Delhi Law Times 106. ● Jagdish Prashad Vs. State 54(1994) Delhi Law Times 424. ● Mohd. Saleem Vs. State 1997 Drugs Cases 283.
● Safiullah Vs. State (Delhi Admn.) 1993(1) Crimes 204 (Del). ● John Bamidele Vs. State 1996 Cri.L.J. 3649 (Del).
22.In rebuttal to the written submissions filed on record by the defence, Ld. APP Sh. Rajiv Mohan, in his written submissions has inter alia contended FIR No.56/10 PS Special Cell Page 16 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
that there has been no violation of section 42 and 50 of the NDPS Act and that accused Anil was caught red handed while he was handing over the consignment of heroin to accused Taj Mohamed and that therefore the mere fact that no public witness agreed to join the raid is not a ground to disbelieve the prosecution witnesses. It has been submitted in the said written submissions that under the NDPS Act, once the prosecution has proved the factum of recovery, a presumption is to be made that the accused persons were in conscious possession of the contraband and that the burden lies upon the accused persons to rebut the said presumption and that since in the present case, the accused have not disclosed any reason for their false implication, it should be presumed by this court that the accused persons were found in conscious possession of the contraband recovered from them. He has also submitted that the evidence on record does not at all lead to the inference that the case property has been tampered with.
23.I have carefully considered the written submissions filed on record by all the Ld. Counsels and have also considered the judicial dicta filed on record by the Ld. Defence counsels. After going through the entire evidence on record in this case, this court is of the considered opinion that taking into consideration the evidence that has come on record, the accused persons are entitled to be granted the benefit of doubt. In the FIR No.56/10 PS Special Cell Page 17 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
present case, first of all, the call detail records of the mobiles allegedly recovered from the accused persons, filed and proved on record by the prosecution itself create a grave doubt on the case of the prosecution. As narrated hereinabove, according to the version put forward by the investigating agency, the three accused persons Taj Mohamed, Sandeep and Anil were apprehended at about 12.15 PM and a mobile bearing no. 9211251656 was recovered from accused Taj Mohamed, a mobile bearing no. 9899181661 was recovered from accused Sandeep and after the apprehension of accused Sageer, a mobile bearing no. 8527067331 was recovered from him. The call detail records of the said three mobiles have been placed on record by PW9 Sh. M.N. Vijayan, Nodal Officer, Tata Tele Services Limited, PW16 Anuj Bhatia, Nodal Officer, Vodafone and PW8 R.K. Singh, Nodal Officer, Bharti Airtel Limited and exhibited as Ex.PW9/A, PW16/B and Ex.PW8/A respectively. The call records of mobile phones assertedly recovered from both Taj Mohamed and Sandeep show that outgoing calls were made from their mobiles even after their apprehension at 12.15 PM. Infact, the mobile records, Ex.PW16/B reveal that a call was made from number 9899181661 (the mobile assertedly recovered from accused Sandee) to 9211251656 (the mobile assertedly recovered from accused Taj Mohamed) at 12.55 PM. In other words, if the version of the prosecution with respect to the time and manner of the FIR No.56/10 PS Special Cell Page 18 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
apprehension of Taj Mohamed and Sandeep is to be believed then despite being in the custody of the police officials, accused Sandeep was making a call to accused Taj Mohamed. Now when the main investigating official PW14 Inspector Satender Vashisht was crossexamined specifically in this respect, he has deposed in his crossexamination that no call was made by accused Sandeep from his mobile number at 12.55 PM to the mobile of the other coaccused. Further, he has also deposed before this court that after the apprehension of accused Taj Mohamed, Anil and Sandeep and their subsequent arrest by the second investigating official ASI Rakesh, the said second investigating official had made accused Sandeep, Anil and Taj Mohamed talk to accused Sageer from their respective mobile phones while going from the place of their apprehension to Karawal Nagar. On the other hand when PW15 SI Rakesh Kumar is questioned in this regard, he specifically has deposed before this court that the mobile phones were in the custody of accused Sandeep, Taj Mohamed and Anil when he had reached the spot and that the said phones were on switch on mode and that Inspector Vashisht had told him that he had advised the accused persons to keep the mobiles on, so that the incoming calls could be monitored but that in his presence no calls were made by the accused persons at all from the said mobiles. Not only are these depositions of PW14 and PW15 entirely inconsistent with each other, the same are not even FIR No.56/10 PS Special Cell Page 19 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
corroborated by the call detail records of the mobile phones allegedly recovered from the accused persons at the spot. The call detail records of 9211251656, Ex.PW9/A and 9899181661, Ex.PW16/B show that no calls were made from the said mobile to mobile no. 8527067331 belonging to accused Sageer. On the other hand, as narrated hereinabove, Ex.PW9/A, the CDR of the phone allegedly recovered from accused Taj Mohamed shows that four outgoing calls were made from this number after the alleged apprehension of this accused at 12.15 PM. Further though both PW14 and PW15 have referred to all the accused persons having mobile phones in their possession and PW1 has specifically deposed that one mobile Spice phone was recovered from accused Anil, the personal search memo Ex.PW1/R does not at all reflect the recovery of any mobile from this accused. The aforementioned discrepancies, in particular the discrepancies in the call detail records of the mobile numbers in question have not at all been explained by the prosecution. The only submission made by Ld. APP in this regard is that since the accused persons have been found in possession of the contraband, they are to be presumed to be guilty of the offences that they have been charged with. I am afraid that the Ld. APP for State has not rightly appreciated the contentions made by the defence According to the version of the defence, the accused persons were not apprehended in the manner and at the time alleged by the FIR No.56/10 PS Special Cell Page 20 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
prosecution and they have been able to point out that the call detail records proved on record by the prosecution itself falsifies their version. In other words, the defence has been able to raise grave doubt about the alleged apprehension of the accused persons at the time asserted by the prosecution and therefore it cannot be at all stated that the prosecution has been able to prove that the recovery of contraband had been made from the accused persons in the manner alleged by it and therefore no presumption can be drawn that the accused persons are guilty in the present case or it has been upon them to explain the discrepancies in the call detail records and their presence at the spot.
24.There is yet another circumstance on record which creates a doubt with respect to the case put forward by the prosecution and the same is with respect to the disclosures assertedly given by accused Taj Mohamed, Sandeep and Anil, which allegedly led to the apprehension of accused Sageer. The first witness examined by the prosecution HC Suresh Kumar, PW1 in his examination in chief itself has deposed on oath that after ASI Rakesh, the second investigating officer came to the spot, he made enquiries from the three accused persons who had already been apprehended and it was accused Taj Mohamed who gave a disclosure Ex.PW1/I in pursuance of which the police party left the spot and reached Karawal Nagar at 04.15 PM and thereafter at the pointing out of accused FIR No.56/10 PS Special Cell Page 21 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
Taj Mohamed accused Sageer was apprehended. Now when this witness was crossexamined he stated that the disclosure statement of the accused Ex.PW1/I was recorded at the office of Special Cell on 16.12.2010 at about 09.30 PM by ASI Rakesh. In other words he contradicted himself in the crossexamination, for as per his examination in chief, the said disclosure should have been recorded before 03.30 PM. Further contrary to the deposition of this witness, both PW14 SI Satender Vashisht and PW1 SI Rakesh Kumar in their examination in chief have narrated that accused Sageer had been infact pointed out by accused Anil. Perhaps realising that the deposition of PW1 that the disclosure statement PW1/I was recorded at the spot itself and his contrary statement in the cross examination that the said statement was recorded in the Special Cell at 09.30 PM, i.e. after the conclusion of all proceedings, PW15 SI Rakesh Kumar, the investigating official who assertedly arrested the three accused persons Sandeep, Taj Mohamed and Anil narrated in his examination in chief that he did not record the aforementioned disclosures of the accused persons in writing at the spot itself due to paucity of time. He has inter alia deposed that after reaching the spot he had made enquiries from the said three accused persons about the heroin recovered from them and that all of them had disclosed that they used to take their supply of heroin from one Sageer Khan of Karawal Nagar and that on 16.12.2010 they were to meet FIR No.56/10 PS Special Cell Page 22 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
him between 0404.30 PM near Ganda Nala, Karawal Nagar to take delivery of more heroin from him and also to make payment to him for the heroin already taken by them from him and that since it was already 03.30 PM and that Karawal Nagar was at a distance, the raiding party immediately left for Karawal Nagar and it was only later in the Special Cell that he had recorded the said disclosures in writing. Now when this witness was crossexamined in this respect, he has deposed that he had made rough notes with respect to the disclosures given by each of the accused persons but admitted that the said rough notes are neither a part of the case diary nor of the judicial record. Yet again the prosecution has not come forward with any explanation as to where the said rough notes disappeared if they were actually made at the spot by PW15. Further the prosecution has not even bothered to explain the discrepancy between the deposition of PW1 namely that it was accused Anil who had pointed out to Sageer and the depositions of PW14 and 15, other the other hand, according to which it was not Taj Mohamed but Anil who had pointed out to accused Sageer.
25.At this stage itself, it will be relevant to take note of that accused Sageer in support of his defence had summoned one Salman as a defence witness. This accused in his statement tendered u/s 313 Cr.PC had narrated before this court that before his apprehension, he used to do the work of resham FIR No.56/10 PS Special Cell Page 23 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
and thread in his tenanted premises at H.No. 108, Gali no.2, New Mustafabad, Gokulpuri and that three persons namely Salman, Amir and Sambha also used to do the same work in the same tenanted premises and that it was in the presence of the said persons that he was picked up by the police from the tenanted premises on 16.12.2010. The said accused had also informed this court that since he has been in custody for the last two and half years, it is not in his knowledge whether the said three persons namely Amir, Salman and Sambha are still available in the premises where they used to reside before his arrest and he prayed that summons be sent by this court to them. It is a matter of record that this accused has been represented by Legal Aid Counsel Sh. Qazi and on an application filed by Sh. Qazi on behalf of this accused, summons had been sent to the aforementioned three persons. Though in pursuance of the summons issued by this court, both Salman and Amir had appeared in this court on 11.07.2013, it was only Salman, a young boy of 13 years, who stepped into the witness box (Ld. Counsel Sh. Qazi had pointed out that though the younger brother of this witness namely Amir was also present in the court, he (Ld. Defence Counsel) was not putting him in the witness box, as the said witness Amir being only 11 years old was feeling very uncomfortable in court). This court, before administering oath and examining Salman, had put certain general questions with respect to his educational FIR No.56/10 PS Special Cell Page 24 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
qualifications and his understanding of the court's proceedings and on being satisfied that the witness understands the sanctity of oath and the nature of proceedings, the court had proceeded to examine him as a witness. This witness in his deposition has narrated that his family consists of his parents, his brothers and his sisters and that all of them reside at H.No.108, Gali no.2, New Mustafabad, Delhi and that accused Sageer used to reside on the ground floor of the said house 23 years back. He also deposed that he had seen accused Sageer doing resham work in his premises and that he used to meet him while going to school and after coming back from school and tuitions. He has also inter alia deposed that on the evening of one day, the date of which he does not remember, he was playing alongwith his friends and his younger brother Amir in the Gali in front of his house when he saw that 56 persons came to the house of Sageer and took him away. On being specifically asked by Ld. APP, this witness, in his crossexamination stated that when the said 56 persons had come, Sageer was in his house and he that he had not come alongwith the said 56 persons. He has further denied the suggestion put by Ld. APP that being the neighbour of the accused, he had deposed falsely at his instance and on being pressurized by the relatives of the accused. This witness had stated before this court that he was on Roza and the contention being made by Sh. Qazi is that in the month of Ramzan, this FIR No.56/10 PS Special Cell Page 25 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
young boy would not have deposed false facts before this court and that being an independent public witness, would not have deposed false facts only to save an accused who was his mere neighbour. He has stressed that a child of such tender years would not have chosen to appear in court to give false deposition.
26.This court completely agrees with the submission of Ld. Counsel Sh. Qazi and wishes to record that at the stage of examining the witness itself, this court had found that the deposition of this witness had a ring of truth about it. The simple manner in which he had narrated what he had witnessed does support the version of accused Sageer that he was picked up from his residence by the police officials and was not apprehended by them near Ganda Nala, Karawal Nagar. It did not appear at all to this court that this child witness had been tutored to depose in a particular manner. In a case titled as Dudhnath Pandey Vs. State of UP AIR 1981 Supreme Court 911, Hon'ble Supreme Court has held that the defence witnesses are entitled to equal treatment with those of the prosecution and the courts ought to overcome their traditional, instinctive disbelief in the defence witnesses. In the present case, this court does not find any reason to discard the testimony of DW2 who is a young independent witness and is not related to the accused, and cannot be therefore stated to be interested in his acquittal and his testimony has inspired much confidence FIR No.56/10 PS Special Cell Page 26 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
in the mind of this court. On the other hand, it is also to be borne in mind that one of the own star witness of the prosecution PW1 could not even rightly identify the accused Sandeep and Sageer at the first instance. Though this witness in his examination in chief deposed that it was he who had caught hold of accused Sandeep, he was unable to rightly identify accused Sandeep and infact pointed out accused Sageer as Sandeep. No doubt, a prosecution witness is not expected to have a photographic memory of the proceedings of the raid, the least that is expected is that when PW1 has himself stated that he had apprehended accused Sandeep, he should have able to identify him rightly.
27.In the considered opinion of this court in view of the discussion hereinabove it is clear that the prosecution has not come forward with the true narration of the manner of apprehension of the accused persons. Their failure to explain the discrepancy in the mobile call records and the discrepancies in the testimony of their witnesses with respect to the recording of the disclosure statements and pointing out of accused Sageer, cannot be brushed aside lightly. In a criminal case where no public independent witnesses are joined in the investigation, an accused has no other way to show that a false case has been foisted on him except to show that the witnesses examined by the prosecution are not telling the truth when they are making discrepant statements on material aspects of the FIR No.56/10 PS Special Cell Page 27 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
case. In a judgment pronounced by the Hon'ble Delhi High Court in Gurcharan Singh Vs. State 1993(2) Crimes 229, it has been clearly held by the Hon'ble High Court that a condition precedent for the prosecution to prove the guilt of the accused is to first prove that its case is a true narration of facts and that it did happen in the way and manner as it is asserted to have taken place. The Hon'ble Delhi High Court has categorically held that in case the prosecution fails in this primary duty, the courts need not go any further and need not make any more enquiry in as much as the said case is liable to be dismissed on this short ground alone. The Hon'ble Supreme Court also, in its judgment pronounced in case titled as Premchand Vs. Union of India reported in 1981 SCC(Crl.) 239, has insisted that in the administration of criminal law, the means that the prosecution agency adopts to secure the conviction of a criminal must also be as good as the ends.
28.At this stage it will also be relevant to discuss herein two other major discrepancies, which shake the credibility of the prosecution witnesses and create a reasonable doubt with respect to the compliance of the provisions of NDPS Act by the investigating agency during the search and seizure proceedings. The first of the same is with respect to the FSL forms prepared by the investigating officials during the search and seizure FIR No.56/10 PS Special Cell Page 28 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
proceedings. Though as per the case put forward by the investigating officials, two FSL forms were prepared by them with respect to the two separate recoveries that were made by them on 16.12.2010, the FSL expert PW12 Dr. Kanak Lata Verma, Senior Scientific Officer, FSL, Rohini has placed before this court only one FSL from Ex.PW12/B. Right from the date that the Ld. Defence counsels have filed written submissions on record i.e. 25.07.2013, the defence has been taking a particular contention namely the fact that this Chemical Examiner has filed on record only one form shows that all the investigating officials including the SHO have deposed falsely that two FSL forms were prepared at the spot. It has been the contention of the Ld. Defence counsels that there has been a tampering of the case property and that the MHCM register filed on record does not show that two FSL forms were either deposited or were taken to the FSL alongwith pullandas and this according to them shows that the possibility of tampering with the evidence cannot be ruled out. The State despite being aware of the said contention of the defence did not choose to recall PW12 Dr. Kanak Lata Verma at all but merely took a stand in the written submissions that the testimony of PW12 to the effect that only the FSL form Ex.PW12/B was received at the FSL should not be read to draw any adverse inference against the prosecution. In the considered opinion of this court, if the contention of the State was that the FIR No.56/10 PS Special Cell Page 29 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
said witness PW12 inadvertently did not place both the FSL forms on record and that infact both the forms were sent to FSL then the easiest course of action for the prosecution would have been to recall this witness and seek a clarification from her in this regard. Neither any clarification in this regard was sought from her on the date that she was examined nor any effort has been made by the prosecution to recall this witness in the last 78 months that this case is fixed for final arguments. In such circumstances, it is to be inferred that the prosecution was apprehensive that the said witness may not support its assertion that inadvertently she had not deposed about two FSL forms being deposited with FSL and placing their copies on record. Further the prosecution has also not bothered to explain as to why the MHCM register filed on record does not show that two FSL forms were deposited with the MHCM and two were taken to the FSL alongwith pullandas. The net effect of the said lapse is that the prosecution has failed to prove the necessary link evidence to show that there was no possibility of the case property being tampered with. It is also to be borne in mind that as per the testimony of PW14 SI Satender Vashisht and PW15 SI Rakesh Kumar, the seal used by PW15 for sealing the pullandas prepared after the asserted recovery from accused Sageer was handed over by him to PW14. In other words the seal remained with one of the investigating officers himself and was not even FIR No.56/10 PS Special Cell Page 30 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
handed over to an independent official. In Jagan Nath Vs. State of Punjab 1997 Crl. L.J 606, Paramjeet Singh Vs. State of Haryana 2005 (3) RCR (criminal) and State of Punjab Vs. Nachhattar Singh @ Banta 2007 (3) RCR (criminal), the Hon'ble Punjab High Court has held that when it cannot be held that the parcel received at the office of Chemical Examiner was the same that was deposited in the malkhana, the possibility of tampering cannot be ruled out. The Hon'ble High Court also took note that where the seal remains with an official subordinate to the Investigating Officer, reasonable doubt does arise with respect to its tampering. In the judgment of the Hon'ble Delhi High Court pronounced in Safiullah's case (supra a judgment relied upon by the defence) also, it has been observed that when the evidence on record does not prove that the FSL form was deposited with the malkhana moharrar and the seal used was not handed over to an independent witness but remained with the police officials, the possibility of interference or the tampering of seal cannot be ruled out. In the present case also, as narrated hereinabove the record produced by the MHCM including the road certificate does not at all reflect about the deposit of any FSL form with the MHCM or its taking away to the FSL respectively.
FIR No.56/10 PS Special Cell Page 31 of 36
SC No. 8/11 State Vs. Anil Kumar & Ors.
29.Thus in the considered opinion of this court, the discrepancy in the evidence put forward by the prosecution with respect to the FSL forms cannot be brushed aside lightly, more so in the context of the doubt successfully proved by the defence with respect to the apprehension of accused Sageer and also taking into consideration the minuscule percentage of diacetylmorphine found in the substance allegedly recovered. As per the report of the FSL on record, the four samples in question were found to have diacetylmorphine only to the extent 1.5%, 6.75%, 1.52% and 1.52%. No doubt, in view of the notification dated 18.11.2009, issued by the Central Government, this court is not to consider the pure drug content of the diacetylmorphine alone in the mixture of the contraband assertedly recovered, but the very small percentage of diacetylmorphine found to be present in the substances allegedly recovered from the accused persons is a fact which is being rightly relied upon by the defence in the present case to support their contention that the possibility of the investigating officials of manipulating the recoveries made in order to rope in all the four accused persons, cannot be ruled out, more so when the main investigating official PW14 Satender Vashisht has not been able to explain various discrepancies on record with respect to certain documents assertedly prepared by him. It has been pointed out by the Ld. Defence counsels that FIR No.56/10 PS Special Cell Page 32 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
this witness has been unable to explain satisfactorily the compliance of section 42 and 50 of the NDPS Act. Admittedly accused Taj Mohamed is an illiterate person and therefore could not have read the section 50 notice assertedly issued to him and as per the testimony of PW14 he had himself written the asserted refusal of Taj Mohamed on the said notice. Now when this witness in his crossexamination was asked to explain the manner in which he had served the said notice upon the accused, he narrated that he had first prepared the notice in duplicate using a carbon, had then served the carbon copy of the notice to the accused Taj Mohamed and had thereafter taken his receiving on the original notice u/s 50 NDPS Act, Ex.PW1/A. He was then confronted with the carbon copy of the said notice and asked to explain as to how were then the signature of accused Taj Mohamed appearing on the said carbon copy, when the said copy was in the possession of the accused and he had been asked to give his receiving on the original notice Ex.PW1/A only. All that this witness stated was that he does not wish to say anything about the same. This witness also was unable to explain where the original paper on which he had assertedly written the secret information disappeared. As per the statement given by this witness in his crossexamination, after receiving the secret information he had not only reduced the same in the daily diary but had also noted it on a separate page and had then sent the said separate FIR No.56/10 PS Special Cell Page 33 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
page in original to the concerned ACP, in compliance of section 42 of the NDPS Act. However when this witness was asked to point out the said page on judicial record he was unable to do so. Infact as per the deposition of the SO to ACP no such original paper containing the secret information was ever received in the office of the ACP and it was only a copy of the daily diary that was received in the said office. This witness also chose to depose in his crossexamination that no PCR van passed by the spot during the entire search and seizure proceedings which lasted more than 3 hours. The said statement made by this witness also stands falsified by the records produced before this court by DW3 ASI Dinesh Kumar, an official summoned by the defence to prove the records of the PCR van that was on duty in the area from where the accused persons were allegedly picked up. The said records Ex.DW3/X do reveal that the PCR van would have passed the spot atleast on one or two occasions during the entire search and seizure proceedings. This main investigating officer also chose to evade the questions put to him with respect to the asserted disclosures given by the accused Taj Mohamed, Anil and Sandeep, to ASI Rakesh in his presence. He has evasively deposed that he does not remember whether ASI Rakesh had made notings in respect of the facts disclosed by each of the accused persons on their interrogation or not. His statements given with respect to the asserted disclosure given by accused FIR No.56/10 PS Special Cell Page 34 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
Anil also do not tally with the disclosure of this accused exhibited on record by the other witnesses.
30.To summarise, in the present case the scientific evidence in the nature of call detail records, the discrepancies in the deposition of the prosecution witnesses with respect to the asserted disclosures given by the accused persons leading to the apprehension of accused Sageer, the testimony of DW2 that Sageer was picked up from his house, the discrepancy in the record of the prosecution with respect to the two FSL forms and the uninspiring testimony of the IO, all taken cumulatively create a reasonable doubt with respect to the manner of apprehension of the accused persons and the asserted recoveries made from them. It has been repeatedly reiterated by the Hon'ble Supreme Court in its various judgments that it must be borne in mind that severer the punishment, greater has to be the care taken to be seen that the case of the prosecution is proved beyond all reasonable doubt. In State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed". The Apex Court in the case of Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its FIR No.56/10 PS Special Cell Page 35 of 36 SC No. 8/11 State Vs. Anil Kumar & Ors.
wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act.
31.In view of the discussion hereinabove, this court is of the considered opinion that the evidence placed on record cannot be stated to be sufficient to convict the accused persons of the serious offences that they have been charged under the NDPS Act and that they are therefore entitled to be acquitted. Accordingly, the accused persons stand acquitted of the charges for which they have faced trial.
Announced in open Court on this 31st day of January, 2014 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No.56/10 PS Special Cell Page 36 of 36