Delhi District Court
Case Of Parminder Singh vs State Of Haryana, 2007 (2) on 1 July, 2010
1
IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS)
DISTRICT NORTH, DELHI
SC NO. 14/09
STATE
versus
BALBIR KAUR @ TOSHI
W/o PISHORA SINGH
R/o H.No. 308, VIDHWA COLONY,
VIVEK VIHAR,
DELHI
FIR No. : 118/08
Police Station : Narcotics Branch
Offence Under Section :21 NDPS Act
Date of institution:24.02.09
Date of taking up the matter for the first time:28.05.09
Date of conclusion of arguments:03.06.10
Date of judgment:01.07.10
Counsel for State: Sh. I U H Siddiqui, Additional Public Prosecutor
Amicus curiae for Accused: Sh. Vikram Sharma, Advocate
SC NO. 14/09 Page 1 of 24 pages
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JUDGMENT
1. Prosecution case is as follows. On 25.12.08 at about 06:30am secret informer came to police station Narcotics Branch and informed ASI Paramjeet Singh, the first investigating officer (IO) that one Toshi, who resides in Vidhwa colony, Delhi and supplies smack in Delhi and Punjab would go from exit gate of ISBT Kashmere Gate between 08:00am and 09:00am to Punjab by bus for supply of smack. The first IO after satisfying himself produced the secret informer before SHO Narcotics Branch at about 06:45am, who after satisfying himself telephonically conveyed the secret information to the ACP N&CP and the ACP directed conduct of immediate raid. The first IO reduced the secret information into writing vide DD No.4A at 07:00am and submitted a copy thereof to the SHO for onward transmission to superior officers.
2. Under the directions of the SHO, the first IO constituted a raiding party consisting of himself, HC Rani Reddy and Ct. Sanjeev Kumar after sharing secret information with them. Carrying with him the IO bag, field testing kit and electronic weighing scale the first IO alongwith raiding team and secret informer proceeded to the spot on SC NO. 14/09 Page 2 of 24 pages 3 official vehicle No.DL1CJ 3481 driven by HC Rajbir vide DD NO.5A at 07:30am.
3. At about 08:00am the raiding team reached the spot near exit gate of ISBT Kashmere Gate. On way to the spot, the first IO got the official vehicle stopped outside the police station and at cremation grounds Geeta Colony and asked 23 passersby at each place to join the raid but all of them went away expressing their personal difficulty. The first IO got the official vehicle parked under the iron bridge and instructed the driver to wait for the signal.
4. The entire raiding team took position at the exit gate of ISBT and started waiting for the accused. At about 09:00am one lady wearing red shawl and spectacles was seen coming from the side of entry gate of ISBT while carrying one blue bag in her left hand. From a distance of about 1012 steps the secret informer identified the said lady as the accused Toshi and went away. When the accused reached near exit gate, the first IO with the help of staff apprehended her at 09:00am and signaled the driver of the official vehicle. The first IO introduced himself and members of the raiding party, whereafter the accused identified herself as Toshi @ Balbir Kaur.
SC NO. 14/09 Page 3 of 24 pages 4
5. After sharing the secret information with the accused, the first IO apprised her with her legal right to get herself searched in the presence of some gazetted officer or magistrate and her right to take search of the lady police official of the team and the vehicle. In this regard the first IO also served on the accused notice under Section 50 NDPS Act by handing over to her carbon copy of the notice and explained to her the contents thereof. Accused refused to exercise her rights and her being illiterate, at her request her reply was written down by the first IO and she affixed her thumb mark after the reply was read over and explained to her.
6. Out of the crowd gathered on the spot, the first IO requested 57 public persons to join further proceedings but all of them went away expressing personal difficulty and the crowd dispersed.
7. Under the directions of the first IO, HC Rani Reddy took search of the accused inside the official vehicle. The blue bag bearing white stars and words ELLE PARIS written on it carried by the accused was opened and found to contain one mud coloured shawl and a pair of violet salwar suit, beneath which was found one transparent polythene bag tied with rubber band containing mud coloured powder.
SC NO. 14/09 Page 4 of 24 pages 5 On being checked with the field testing kit, the said powder was found to be heroin and on being weighed with the polythene bag, it was found to be 1150grams.
8. Out of the recovered 1150grams heroin, the first IO drew two samples of 5grams each and after placing the same in two transparent polythene pouches converted the same into cloth pullandas mark A&B; the remnant heroin in polythene bag was placed back beneath the clothes in the bag and the same was converted into cloth pullanda mark C. The first IO filled form FSL and sealed the same as well as all the three pullandas with his official seal of 8 CPS NB DELHI and handed over the seal after use to HC Rani Reddy. Thereafter the first IO seized the three sealed pullandas and form FSL.
9. The first IO wrote a rukka and sent the same alongwith the sealed pullandas, form FSL and carbon copy of seizure memo to police station through Ct. Sanjeev Kumar who left the spot on the official vehicle driven by HC Rajbir.
10. Ct. Sanjeev Kumar handed over the rukka to duty officer HC Ishwar Singh who registered FIR of this case and assigned further investigation to SI Bhagwan Singh under the directions of the SHO.
SC NO. 14/09 Page 5 of 24 pages 6 The sealed pullandas with form FSL and carbon copy of seizure memo were handed over by Ct. Sanjeev to the SHO who counter sealed the same with his seal of 1 SHO NBR DELHI and recorded particulars of the case on the same. SHO called MHC(M) Mahesh Kumar and handed over the three pullandas, form FSL and carbon copy of seizure memo to him after getting entries in register no.19 done for deposit of the same in malkhana.
11. SI Bhagwan Singh, the second IO upon reaching the spot prepared site plan at the instance of the first IO and recorded statement of HC Rani Reddy. After interrogating the accused, the second IO arrested her and took her personal search. Thereafter the accused was produced before the SHO Narcotics Branch, who satisfied himself about genuineness of the arrest.
12. On 26.12.08 both the IOs submitted reports under Section 57 NDPS Act, which were forwarded by the SHO to senior officers.
13. On 06.01.09 sample pullanda mark A was sent to FSL Rohini through HC Ramesh Chander. In her report dated 30.01.09, the FSL expert opined the sample to be heroin containing 1.5% diacetylmorphin.
SC NO. 14/09 Page 6 of 24 pages 7
14. After completion of investigation chagesheet was filed against the accused for offence under Section 21 NDPS Act.
15. My learned predecessor framed charge for offence under Section 21 NDPS Act against the accused to which she pleaded not guilty and claimed trial. In support of their case prosecution examined 9 witnesses whereafter the entire evidence was put to the accused in her statement under Section 313 CrPC; the accused denied the truthfulness of prosecution witnesses and pleaded that she has been falsely implicated in this case.
16. I have heard Sh. IUH Siddiqui, Additional Public Prosecutor for State and Sh. Vikram Sharma, amicus curiae on behalf of accused, who took me through records.
17. A brief of the evidence brought by prosecution is as follows:
18. PW1 HC Ishwar Singh who was posted as duty officer at PS Narcotics Branch at the relevant time proved the FIR registered by him in this case as Ex.PW1/A, his endorsement on rukka as Ex.PW1/B and DD entries No.9A & 11A regarding starting and conclusion of writing FIR as Ex.PW1/C&D. SC NO. 14/09 Page 7 of 24 pages 8
19. PW2 MHC(M) Mahesh Kumar deposed about the deposit of three sealed pullandas with form FSL and carbon copy of seizure memo as well as personal search articles of the accused in malkhana on 25.12.08 and dispatch of sample mark A with form FSL through HC Ramesh Chander to FSL Rohini followed by deposit of FSL receipt. PW2 proved copies of the relevant entries in register No.19 as Ex.PW2/A, copy of the road certificate as Ex.PW2/B and copy of FSL receipt as Ex.PW2/C.
20. PW3 HC Ramesh Chander deposed that on 06.01.09 he took sample mark A with form FSL and deposited the same in FSL Rohini against receipt Ex.PW2/C which was handed over by him to MHC(m).
21. PW4 HC Karunakaran Nair from ACP office proved the secret information DD No.4 as Ex.PW4/A with its relevant receipt diary entry as Ex.PW4/B and reports under Section 57 NDPS Act with relevant receipt diary entries as Ex.PW4/CE.
22. PW5 SI Bhagwan Singh, the second IO of this case narrated the facts pertaining to assignment of investigation of this case to him, followed by his visit to the spot, preparation of site plan, SC NO. 14/09 Page 8 of 24 pages 9 recording of statement of HC Rani Reddy and arrest proceedings as described above. PW5 proved the site plan as Ex.PW5/A, arrest memo as Ex.PW5/B and personal search memo as Ex.PW5/C and stated that on 06.01.09 he got sent pullanda mark A with FSL form to FSL Rohini. In his cross examination, PW5 stated that there were no kiosks and vegetable vendors near the spot; that disclosure statement of the accused was recorded by him while sitting inside the official vehicle; that for personal search of the accused after arrest, he did not request any lady passerby to join; that information about arrest was conveyed by him to daughter of the accused. PW5 in cross examination proved the carbon copy of notice served on the accused as Ex.PX.
23. PW6 Ct. Sanjeev Kumar, a member of the raiding team narrated the facts pertaining to receipt of secret information, raid, recovery and seizure of contraband followed by the delivery of rukka and seized articles by him to the police station as described above. PW6 proved the notice under Section 50 NDPS Act and its reply as Ex.PW6/A&B and seizure memo as Ex.PW6/C. PW6 identified the case property as Ex.P1 to Ex.P15 including sample smack of pullanda SC NO. 14/09 Page 9 of 24 pages 10 mark A as Ex.P1, sample smack of pullanda mark B as Ex.P6, remnant smack as Ex.P10 and polythene bag that contained the contraband as Ex.P11. In his cross examination, PW6 stated that the contraband for the first time was seen by him when the same was taken out of bag of the accused by the first IO and when the bag was opened at the exit gate, the accused was sitting inside the gypsy; that seizure memo was written by him on the directions of the IO, who got left blank spaces on seizure memo for writing FIR number and particulars subsequently and those particulars were written on the seizure memo by Inspector ML Sharma. In his extensive cross examination, PW6 described the contents of the field testing kit, allocation of IO bags, manner of weighing the contraband and non joining of public witnesses in the proceedings.
24. PW7 HC Rani Reddy, a member of the raiding team narrated the facts pertaining to receipt of secret information, raid, recovery and seizure of contraband followed by the delivery of rukka and seized articles to the police station, arrival of the second IO and conduct of arrest proceedings as described above. PW7 also identified the case property Ex. P1 to Ex. P15. In her cross examination PW7 SC NO. 14/09 Page 10 of 24 pages 11 stated that the contraband was seen for the first time by her and the same was brown powder, which she handed over to the first IO; that the accused walked over 1015 steps subsequent to being identified by the secret informer and prior to being apprehended. PW7 in cross examination described the field testing kit and elaborated the different stages of proceedings conducted on spot.
25. PW8 ASI Paramjeet Singh is the first IO of this case, who narrated the facts pertaining to receipt of secret information, raid, recovery and seizure of contraband followed by the delivery of rukka and seized articles to the police station, arrival of the second IO and conduct of arrest proceedings as described above. PW8 proved his rukka as Ex. PW8/A and his report under Section 57 NDPS Act as Ex. PW8/B and identified the case property Ex. P1 to Ex. P15. In his cross examination, PW8 stated that he had left space for FIR number and date on the top of seizure memo as well as its carbon copy; that he did not remember as to after how many days the seal was returned to him by HC Rani Reddy, who is witness in a number of cases investigated by him; that spot of recovery is a crowded place and there are hawkers around. In the course of cross examination of PW8, all the SC NO. 14/09 Page 11 of 24 pages 12 three pullandas of the contraband were opened and a court observation was recorded to the effect that colour of contraband of all the three pullandas is purple but contraband of pullandas mark A and B is slightly lighter in shade as compared to the remnant contraband of pullanda mark C; however it was also recorded that the learned additional public prosecutor felt that there was no difference in shade of the three contrabands.
26. PW9 Inspector ML Sharma who was posted as SHO Narcotics Branch at the relevant time narrated the facts about receipt and transmission of secret information, departure of raiding party, arrival of Ct. Sanjeev in his office with the case property, countersealing of pullandas and form FSL, recording of FIR number on the same followed by deposit thereof in malkhana and production of accused before him. PW9 proved report under Section 57 NDPS Act as Ex. PW9/A. In his cross examination, PW9 admitted that on the top of register no.19 Ex. PW2/A, name of police station and district are not mentioned.
27. No other evidence was brought.
28. As described above, accused pleaded innocence in her SC NO. 14/09 Page 12 of 24 pages 13 statement under Section 313 CrPC but opted not to lead any evidence in her defence.
29. During final arguments, learned Additional Public Prosecutor took me through the entire evidence on record and contended that prosecution has proved its case beyond reasonable doubt. It was argued that compliance of all the mandatory provisions has been duly proved by prosecution.
30. Per contra, learned amicus curiae argued that prosecution has failed to prove their case beyond reasonable doubt. It was argued that neither source nor target of the contraband allegedly recovered from the accused was investigated by police, which shows that the entire case is fabricated. It was further argued that despite availability no public person was joined in the proceedings at any stage and rather there is a contradiction in the statements of even police witnesses as regards presence of hawkers near the spot. Learned amicus curiae also argued that accused being illiterate, it was the duty of the first IO to take along some gazetted officer or magistrate for compliance of Section 50 NDPS Act; it was argued that upon receipt of secret information from SHO, the ACP on his own ought to have gone to the SC NO. 14/09 Page 13 of 24 pages 14 spot. Learned amicus curiae also pointed out the discrepancies regarding colour of the contraband.
31. As described above, as per prosecution case the contraband was recovered from illegal possession of the accused on 25.12.08 and sample pullanda mark A was sent to FSL Rohini on 06.01.09. There is no clear evidence as to on which date seal was returned by HC Rani Reddy to the first IO. There is also no explanation as to why the sample pullanda was not sent to FSL immediately instead of waiting for 12 days.
32. So far as the legal position with regard to delay in sending the samples to forensic lab is concerned, in the case of BUTA SINGH vs STATE OF PUNJAB, 2006 (2) CC CASES 42, Hon'ble High Court held that failure of prosecution to explain by leading evidence delay of 8 days in dispatch of sample to FSL is fatal to the prosecution. In the case of PARMINDER SINGH vs STATE OF HARYANA, 2007 (2) JCC (NARCOTICS) 71, failure to explain the delay of 25 days in sending the sample for analysis was taken as a circumstance by the Hon'ble High Court that creates doubt about truthfulness of prosecution case. In the case of RADHAKISHAN vs STATE, 87 SC NO. 14/09 Page 14 of 24 pages 15 (2000) DLT 106, Hon'ble Delhi High Court described lacunae in the prosecution case including delay of 13 days in sending the sample for testing without any reasonable explanation and granted benefit of doubt to the accused. In the case of GULAM MOHMAD vs STATE, 1996 JCC 533 where the incident was dt. 17.09.88 and sample was sent for analysis on 22.09.88 during which period seal remained in custody of the police, Hon'ble High Court held that apprehension of accused that samples could have been tampered cannot be brushed aside.
33. In the case of BALBAN SINGH vs STATE, III (2008) CCR 395, Hon'ble Delhi High Court held as under:
"13. The next submission concerned the delay of over a month and a half in sending the seized sample for testing to the FSL. The seizure was made on 22nd July, 2002 and the sample was sent for testing on 13th September 2002. The Supreme Court has in Valsala vs State of Kerala, II (1993) CCR 167 SC = 1993 (2) Crimes 267 SC and later in State of Gujrat vs Ismail U Hazi Patel, (2003) 12 SCC 19, held that the delay per SC NO. 14/09 Page 15 of 24 pages 16 se would not be material. What had to be established was that the seized articles were in proper custody and in proper form and that the sample sent to the chemical analyst for testing was the same that was seized."
34. In the case of GURCHARAN SINGH vs STATE OF HARYANA, 2008 (1) CC CASES (HC) 375, it was held as under:
"14. However, the glaring aspect of the case is that the sample was seized on 20.06.94 and the same was sent to the forensic science laboratory on 05.07.94. This delay has largely remained unexplained. It has to be noticed that even though the seals remain with the police officials and the possibility of its tampering cannot be ruled out."
35. As described above, it was the duty of prosecution to prove by leading evidence the explanation for delay in sending the sample to the FSL. But no such evidence was adduced. It is also not a case that the evidence on record establishes to the hilt that there was no scope of any tampering with the seized material and that the sample tested by SC NO. 14/09 Page 16 of 24 pages 17 the FSL was the same that was seized in the raid. In the present case, what is to be seen is as to whether there are any circumstances that would give rise to a reasonable doubt as regards safe custody of the material allegedly recovered from the accused. What is to be seen is as to whether the evidence as regards keeping the allegedly recovered contraband in safe custody rules out the possibility of tampering.
36. As described above, prosecution case as per chargesheet is that the contraband that was recovered from the accused was matiala (mud coloured); PW7 HC Rani Reddy who claimed to have seen the contraband first of all stated that the same was brown powder; during testimony of PW8 when the contraband was opened in court, the observation recorded was that the same was purple in colour and contraband of pullandas mark A&B was lighter in shade as compared to the remnant contraband of pullanda mark C. Hence, there is not only difference in colour between what was recorded in the chargesheet and stated by PW7 and observation in court, there is also a shade difference between the sample contraband and remnant contraband. As regards the shade difference between contraband of sample mark A and contraband of the remnant mark C, it can be SC NO. 14/09 Page 17 of 24 pages 18 argued that the difference is due to difference of environment and storage factors as sample mark A was in the FSL while the remnant mark C remained in malkhana of the police station. But that fails to explain the shade difference between sample mark B and remnant mark C, both of which remained in same environmental and storage condition in malkhana of police station. In other words, there is strong doubt as to whether the sample analysed by the FSL was taken out of same material that was allegedly recovered from the accused during the raid.
37. Another vital factor is the material allegedly sent from police station and the material allegedly delivered at FSL Rohini. As per road certificate Ex.PW2/B alongwith the sample mark A an FSL form also was sent to FSL Rohini. But as per FSL receipt Ex.PW2/C only one cloth parcel was received in FSL Rohini. It remains unanswered as to what happened to the FSL form. Merely on the basis of bald statements of police officials, it cannot be established that alongwith sample mark A form FSL also was sent to the forensic lab.
38. In the case of MATLOOB vs STATE, 1997 IV AD (DELHI) 178 Hon'ble Delhi High Court held that unexplained delay of SC NO. 14/09 Page 18 of 24 pages 19 one month in sending the sample to the forensic lab is a lack of promptitude; it was also held by the Hon'ble High Court that CFSL Form ought to have been returned alongwith the remnants of the sample after analysis and failure to do so creates doubt as one is left wondering as to "what happened to the CFSL form and where it disappeared". In the case of SATENDER SINGH vs STATE, 1997 (3) CC CASES 535 HC, Hon'ble Delhi High Court observed that since the road certificate made no mention of CFSL form, it could not be said merely on the oral testimony of police witnesses that CFSL form was also sent with the samples.
39. Learned prosecutor argued on this point that FSL report dated 30.01.09 specifically mentions that seals on the parcel were tallied with specimen seals on FSL form, as such it is clearly established that FSL form also was sent to the forensic lab alongwith sample parcel.
40. But I fail to agree with this argument of prosecution. For, in the report dated 30.01.09 of FSL, the expressions used are "one sealed parcel marked as A. Seals were intact and tallied with specimen seals as per forwarding letter (FSL form)". At the forensic lab, it is the SC NO. 14/09 Page 19 of 24 pages 20 forwarding letter that was considered to be FSL form and specimen seals were found on the same. But the forwarding letter is described in the same report as a letter no. 11/SHO/N. Branch dated 05.01.09 of the SHO. As per prosecution case, the FSL form was prepared by the first IO on the spot and as such the forwarding letter of SHO cannot be FSL form.
41. There is another aspect as regards FSL form. Till date the said form has not seen light of the day and continues to remain in fiction of prosecution. Admittedly, FSL form was not returned from the forensic lab alongwith FSL report and remnants of sample after analysis and one is left wondering as to what happened to the FSL form and where it disappeared. In the case of MATLOOB (supra), Hon'ble Delhi High Court cited a judgment of the same court in the case of MOHAN KAMATH vs STATE, Crl. Appeal no. 18/93 in which it was held that non production of CFSL form would give rise to a doubt on the truthfulness of the prosecution case.
42. Further, as described above PW9 Inspector ML Sharma the then SHO Narcotics Branch admitted that register No.19, relevant pages whereof are Ex.PW2/A does not bear name of police station and SC NO. 14/09 Page 20 of 24 pages 21 district on its top. Perusal of Ex.PW2/A would show that register No.19 is not even paginated. Register No.19 being a vital document to establish the conditions in which the contraband was deposited and kept in safe custody, hence can be easily tampered and as rightly argued by learned amicus curiae, there is strong possibility that the case property was tampered with.
43. In view of above discrepancies pertaining to dispatch of FSL form, absence of name of police station, district and pagination in register no.19, absence of clear evidence as regards the date of return of seal to the first IO and its consequent accessibility to tamper with the case property, in the light of colour as well as shade difference described above, delay of 12 days in sending the sample pullanda to FSL becomes very significant and fatal to prosecution.
44. Further, there are certain vital contradictions and inconsistencies in prosecution case. PW8, the first IO ASI Paramjeet Singh stated that he had left space on the top of seizure memo for writing FIR number; PW6 Ct. Sanjeev Kumar also stated that the seizure memo was got written by IO from him and the IO got left blank space on the seizure memo in which FIR number and particulars SC NO. 14/09 Page 21 of 24 pages 22 of the case were written by Inspector ML Sharma. But the seizure memo Ex. PW6/C bears neither any blank space nor the FIR number and particulars, as claimed by the witnesses.
45. PW6 Ct. Sanjeev Kumar in his chief examination stated that when bag of the accused was opened on the spot, the same was found to contain beside other articles two salwar suits, but when the case property was opened in court, the bag was found to contain only one pair.
46. PW7 HC Rani Reddy stated that the contraband was seen by her first of all upon search of the accused inside the official vehicle and she handed over the same to the first IO for being checked; as per PW6 Ct. Sanjeev, the contraband for the first time was taken out of bag of the accused by the first IO at the exit gate and at that time the accused was sitting inside the gypsy. Who was the first person to see the contraband is a point of contradiction between PW6 and PW7. Besides, going by the testimony of PW6 when the polythene bag allegedly containing heroin was taken out of ELLE PARIS bag of the accused, the same was done in the absence of accused as she was sitting inside the gypsy while her bag was opened at the exit gate.
SC NO. 14/09 Page 22 of 24 pages 23
47. Also, as rightly argued by the learned amicus curiae, there is absolutely nothing on record to show any investigation done by police as regards the source of the contraband and target thereof, despite it being not a small recovery.
48. Then, as regards timing of arrest also the evidence fails to inspire confidence. The time of arrest in the arrest memo Ex.PW5/B is shown to be 04:00pm on 25.12.08 while as per prosecution case the accused was apprehended at about 09:00am. In the case of SEHDEV vs STATE, 2009 (3) JCC (NARCOTICS) 128, Hon'ble Delhi High Court held that such a discrepancy of timings cannot be brushed aside since the concept of informal arrest as contrasted with formal arrest is not envisaged in the Criminal Procedure Code or even NDPS Act and the arrest memo is supposed to bear the precise time of apprehending the accused, failing which the arrest memo creates considerable doubt.
49. The record thus, is riddled with numerous inconsistencies, improbabilities and glaring contradictions which strike at the very root of the matter and create strong doubt as regards truthfulness of prosecution case. Conduct of raid and recovery of contraband as well as arrest of accused does not appear to have taken place in the manner SC NO. 14/09 Page 23 of 24 pages 24 alleged by the prosecution.
50. Prosecution has failed to prove its case beyond reasonable doubt. As such the accused is held not guilty of charge framed against her. Consequently the accused is acquitted. Bail bond is canceled and surety is discharged.
51. On the basis of effective assistance, rendered by learned amicus curiae Sh. Vikram Sharma, Advocate, his remuneration is fixed as Rs.6,000/.
52. File be consigned to records.
ANNOUNCED IN THE OPEN COURT ON 1st JULY 2010 (GIRISH KATHPALIA) SPECIAL JUDGE, NDPS (NORTH)DELHI SC NO. 14/09 Page 24 of 24 pages