Delhi District Court
State vs 1. Shafi @ Lovely (Bail) on 5 November, 2014
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 09/12 FIR No. : 40/2012 PS : Seemapuri U/Sec. : 21 NDPS Act Case ID : 02402R0104312012 State Versus 1. Shafi @ Lovely (Bail) S/o Sh. Sheru R/o H. No. B-87, Moti Masjid Wali Gali, Shahid Nagar, Sahibabad, Ghaziabad (U.P.) Date of Institution : 12.04.2012 Date of reserving order : 15.09.2014 Date of Judgment : 05.11.2014 JUDGMENT
1. On 11.02.2012 at about 10.45 p.m., PW-1, SI Vikas Kumar received a secret information in the police station Seemapuri that accused Shafi @ Lovely used to sell smack in Shahid Nagar, U.P. and he would go towards Shahid Nagar, U.P. via H-J Block, Old Seemapuri, Delhi with smack between 11.30 p.m.-01.00 a.m. and he could be apprehended with smack, if raided.
2. At about 10.45 p.m., PW-1 SI Vikas Kumar reduced the secret information into writing vide DD No. 30-A Ex.PW1/A and produced the secret informer with a copy of the said DD before PW-3 Inspector Jai Pal Singh, SHO, Seemapuri.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 1/193. PW-3 Inspector Jai Pal Singh made requisite enquiry from the secret informer and on being satisfied with the creditability of the secret information, he directed PW-1 SI Vikas Kumar to constitute a raiding team and immediately conduct a raid. Thereafter, PW-1 SI Vikas Kumar constituted a raiding team comprising himself, PW-6 HC Shokender and PW-8 Ct. Sanjeev and briefed them about the secret information.
4. At about 10.55 p.m., PW-1 SI Vikas Kumar proceeded towards place of information along with raiding team and secret informer after collecting IO kit and electronic weighing scale vide DD No. 32-A Ex.PW1/B.
5. At about 11.10 p.m., PW-1 SI Vikas Kumar with raiding team reached at Gol chakkar, Old Seemapuri where he requested 4-5 public persons to join the raiding team but no one agreed and left the spot after expressing their genuine excuses without disclosing their names and addresses. They could not be served with notice for want of time.
6. At about 11.30 p.m., PW-1 SI Vikas Kumar with raiding team and secret informer reached at the place of information at H-J Block, Old Seemapuri where he positioned the members of the raiding team after giving them appropriate instructions and waited for accused Shafi @ Lovely. At about 11.50 p.m., accused Shafi @ Lovely was seen coming from the side of Seemapuri Chowki. Secret informer identified him and left the spot. Thereafter, PW-1 SI Vikas Kumar with the help of members of the raiding team apprehended him.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 2/197. PW-1 SI Vikas Kumar introduced the members of the raiding team to accused Shafi @ Lovely. He informed him that he had information that he was possessing smack and his search was required to be conducted. He informed accused Shafi @ Lovely that if he desired, a Gazetted Officer or a Magistrate can be called for conducting his search. Accused Shafi @ Lovely refused to be searched in the presence of a Gazetted Officer or a Magistrate. PW-1 SI Vikas Kumar offered him personal search of members of the raiding team before his search. PW-1 SI Vikas Kumar given a notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'the NDPS Act'). The original notice under Section 50 of the NDPS Act which was served on accused Shafi @ Lovely is Ex.PW6/D and carbon copy thereof is Ex.PW1/C. Accused Shafi @ Lovely acknowledged the service of the notice and put his signatures thereon. His refusal was recorded vide Ex.PW1/D.
8. Thereafter, PW-1 SI Vikas Kumar conducted cursory search of accused Shafi @ Lovely and recovered one transparent polythene containing white colour powder from the right pocket of his trouser. On being asked, accused Shafi @ Lovely disclosed that it was smack. From its appearance and checking, the said powder appeared smack and thereafter, the recovered powder was kept in a small transparent polythene and weighed on an electronic weighing machine. It was found to be of 10 grams.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 3/199. PW-1 SI Vikas Kumar taken out 2 grams powder and kept it in a small transparent polythene as a sample and converted the remaining powder and sample powder into two separate cloths parcels and sealed them with his seal having impression 'VK'. The parcel containing remaining powder was given Mark-A and the sample parcel was given Mark-A1. He filled FSL Form and affixed his seal having impression 'VK' thereon. Seal after use was handed over to PW-8 Ct. Sanjeev and both cloth parcels along with Form FSL were seized vide seizure memo Ex.PW1/E.
10. PW-1 SI Vikas Kumar prepared rukka Ex.PW1/F and handed it over to PW-6 HC Shokender alongwith the said sealed cloth parcels, Form FSL and a carbon of seizure memo with the direction to hand over rukka to Duty Officer PS Seemapuri and the said two sealed cloth parcels, Form FSL and carbon copy of seizure memo to SHO, Seemapuri.
11. At about 02.00 a.m., PW-6 HC Shokender proceeded from the spot to the police station. At about 2.15 a.m., PW-2 HC Tuki Ram recorded kayami vide DD No. 5-A Ex.PW5/A on receipt of rukka from PW-6 HC Shokender and FIR Ex.PW2/B and further investigation of the case was assigned to PW-7 SI Manish Kumar.
12. At about 2.20 a.m., PW-3 Insp. Jai Pal Singh received two sealed cloth parcels, form FSL and a carbon copy of seizure memo from PW-6 HC Shokender. He counter sealed the parcels and form FSL and deposited with PW-4 MHC (M).
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 4/1913. During the course of investigation, PW-7 SI Manish Kumar with PW-6 HC Shokender reached at the spot where he met PW-1 SI Vikas Kumar and collected documents from him. He prepared site plan Ex.PW1/G at the instance of PW-1 SI Vikas Kumar, arrested accused Shafi @ Lovely vide arrest memo Ex.PW6/B and personal search memo Ex.PW6/C. He recorded disclosure statement of accused Shafi @ Lovely vide Ex.PW6/A and returned to the police station. He produced the accused Shafi @ Lovely before PW-3 Insp. Jai Pal Singh and submitted special report U/s. 57 of the NDPS Act Ex.PW9/A to him and a carbon copy thereof is Ex.PW7/A.
14. During the course of investigation, he recorded statement of witnesses U/s. 161 Cr.P.C. who were conversant with the facts of the case.
15. On 26.03.2012, PW-4 HC Dinesh, MHC (M) sent sample parcel Mark A-1 to FSL, as per direction of PW-7 SI Manish Kumar, through PW-5 Ct. Rakesh Kumar vide Road Certificate No. 15/21 Ex.PW4/B and acknowledgement issued by FSL is Ex.PW4/C.
16. Sh. Amit Rawat, Senior Scientific Officer (Chemistry), Forensic Science Laboratory Cum-Ex Officio Chemical Examiner to the Govt. of NCT of Delhi examined sample parcel Mark A-1 and found seals intact and corresponding with the specimen seals. According to report, sample parcel Mark A-1 contained brown coloured powder, weight 2.52 grams with polythene pouch.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 5/1917. Sample parcel Mark A-1 was subjected to Chemical, TLC, GC and GC-MS examination, (i) Sample powder was found containing 'Diacetylmorphine', 'Phenobarbital', 'Caffeine', 'Paracetamol' & '6-Monoacetylmorphine'. (ii) However, on Gas- chromatography examination sample powder was found containing 'Diacetylmorphine' & "Phenobarbital' 7.3% & 14.6% respectively.
18. On completion of investigation, accused Shafi @ Lovely was charged U/s. 21 (b) of the NDPS Act, 1985.
19. During the course of trial, the prosecution examined 9 witnesses, as under:
The witnesses Description of the witnesses PW-1 SI Vikas Kumar In-charge of the raiding team PW-2 HC Tuki Ram Duty Officer PW-3 Insp. Jai Pal Singh SHO, PS Seemapuri PW-4 HC Dinesh In-charge, Malkhana PW-5 Ct. Rakesh Kumar Sample depositor PW-6 HC Shokender Recovery witness PW-7 SI Manish Kumar Investigating Officer PW-8 Ct. Sanjeev Kumar Recovery witness PW-9 HC Virender Kumar Reader to ACP, Seemapuri
20. On conclusion of the prosecution evidence, the incriminating circumstances appearing against accused Shafi @ Lovely were put U/s. 313 Cr.P.C.
21. According to accused Shafi @ Lovely, no smack was recovered from him and police witnesses deposed against him being police officials and interested witnesses.FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 6/19
22. The defence of accused Shafi @ Lovely, as stated by him, is as under:
Question 20: Do you want to say anything else?
Answer: I am innocent and I was lifted from Shaheed Nagar, Ghaziabad, U.P. near Jumma Market at about 8.15 p.m., near the shoe factory where I was employed and falsely implicated in the present case. No recovery was effected from my possession and alleged contraband was implanted upon me. All the writing work was done while sitting in the police station. My signatures were obtained on some blank papers, some written documents and some printed proformas.
23. No witness was examined in defence evidence.
24. I have heard Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. S.K. Ahluwalia, Advocate for accused Shafi @ Lovely and carefully considered the material on record.
25. Ld. Addl. PP for the State submitted that the prosecution has proved compliance to the provision of Section 50 of the NDPS Act. He submitted that accused was duly communicated his legal right to be searched in the presence of a Gazetted Officer or a Magistrate, if he desired. He submitted that accused properly understood his legal right and thereafter, he opted not to avail his legal right. He submitted that provision of Section 42 of the NDPS Act is not applicable as the recovery was effected in a public place and not from a conveyance, dwelling house or an enclosed space. He submitted that Section 43 of the NDPS Act is applicable to this case.FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 7/19
26. Sh. I.H. Siddiqui, Ld. Addl. PP for the State further submitted that PW-1 SI Vikas Kumar, PW-6 HC Shokender and PW-8 Ct. Sanjeev are recovery witnesses. He submitted that there is no blemish in their depositions. He submitted that they have proved recovery of smack from the possession of accused Shafi @ Lovely. He submitted that non-examination of a public witness is not a fatal to the case of the prosecution as PW-1 SI Vikas Kumar made efforts to associate public witnesses during search and seizure proceedings but they were not willing to become witnesses. He submitted that generally, public is averse to become witnesses in such cases as they do not want to get involved in such cases. He submitted that depositions of recovery witnesses are cogent, consistent and truthful. He submitted that the defence has not been able to elicit any contradiction much less than material contradiction in their depositions. He submitted that delay in sending sample parcel to FSL is not fatal as the prosecution has proved link evidence in the form of PW-4 HC Dinesh Kumar, MHC (M) and PW-5 Ct.
Rakesh Kumar, Sample depositor. He submitted that the sample parcel was intact till it remained in their custody. He submitted that FSL report Ex.PW7/B further corroborates that the sample parcel was not tampered as it records that seals were found intact and tallied as per forwarding authorities specimen seals. He submitted that provisions of Section 55 and 57 of the NDPS Act have also been complied with. He submitted that the prosecution has proved its case.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 8/1927. Sh. S.K. Ahluwalia, Ld. defence counsel submitted that the prosecution has failed to prove compliance to the mandatory provisions of Section 42 and 50 of the NDPS Act. He submitted that neither the secret information was conveyed orally or in writing to senior officers of police. He submitted that it was not a case of chance recovery and therefore, it was obligatory on the part of the prosecution to send a copy of secret information to senior officers of police within 72 hours. He submitted that prosecution has also failed to prove compliance to Section 57 of the NDPS Act as PW-1 SI Vikas Kumar did not submit report regarding seizure of smack from the possession of accused Shafi @ Lovely to his immediate superior officers. He submitted that accused was not communicated his legal right to be taken to any Gazetted Officer or a Magistrate. He submitted that mere intimation of an option is not a legal communication of his legal right. He submitted that there are material contradictions in the case of the prosecution and in the presence of such inconsistencies, it would not be appropriate to hold the charge proved. He submitted that there is unexplained delay of 47 days in sending sample parcel to FSL. He submitted that such delay is fatal to the case of the prosecution, particularly when the colour of the contraband produced before the Court was different, seal was returned to PW-1 SI Vikas Kumar before the sample parcels were sent to FSL, contradictions regarding preparation of sample parcel and remaining parcel from the recovered smack.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 9/1928. On thoughtful consideration of the matter in the light of the evidence, oral and documentary, and arguments addressed at the bar, issue-wise is finding as under:
Non-compliance of Section 42 of the NDPS Act
29. It is an admitted case of the prosecution that secret information was received at 10.45 p.m. on 11.02.2012 that accused Shafi @ Lovely would go to Shaheed Nagar, UP via H- J Block, Old Seemapuri, Delhi with smack between 11.30 p.m.-1.00 a.m. It is an admitted case of the prosecution that PW-1 SI Vikas Kumar produced the secret informer before PW-3 Insp. Jai Pal Singh and reduced the secret information into writing vide DD No. 30-A Ex.PW1/A.
30. Therefore, it is not a case of chance recovery. PW-1 SI Vikas Kumar had prior information regarding the fact that accused Shafi @ Lovely would be passing through H-J Block, Old Seemapuri, Delhi with smack at about 11.30 p.m.-1.00 a.m. He reduced secret information into writing. Provision of Section 42 of the NDPS Act would apply.
31. I am further fortified in my opinion. In 'Om Prakash vs. State' Crl. A. No. 453/2014 decided on 23.05.2014, Hon'ble Delhi High Court, while dealing with an identical contentions, held as under:
"74.....However, where the raiding officer proceeds to a public place on the basis of prior information which he has recorded in writing, then the question of applicability of Section 43 would not arise....."FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 10/19
32. Adverting to the facts of the case, PW-1 SI Vikas Kumar reduced the secret information into writing vide DD No. 30-A Ex.PW1/A and a copy of rojnamcha register containing the said DD is Ex.PW1/H. A copy of the said DD was also submitted to PW-3 Insp. Jai Pal Singh. However, it was not sent to senior officer of police within 72 hours and as such, there is non- compliance of mandatory provision of Section 42 of the NDPS Act.
33. Effect of total non-compliance of Section 42 of the NDPS Act was dealt in 'Karnail Singh vs. State of Haryana' reported in (2009) 8 SCC 539 as under:
"17.....
(d).....But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act....."
Non-compliance of Section 50 of the NDPS Act
34. It is an admitted case of the prosecution that personal search of accused Shafi @ Lovely was conducted and in his personal search, the contraband was recovered from right pocket of his trouser. As such, provision of Section 50 of the NDPS Act is applicable.
35. PW-1 SI Vikas Kumar was the In-charge of the raiding team. PW-1 SI Vikas Kumar stated in his examination- in-chief that he told the accused that if he wanted, his search could be conducted in the presence of a Gazetted Officer or a Magistrate and disclosed legal right to accused in this regard.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 11/1936. PW-1 SI Vikas Kumar prepared and served a notice U/s. 50 of the NDPS Act Ex.PW1/C on accused Shafi @ Lovely in this respect. According to notice U/s. 50 of the NDPS Act Ex.PW1/C, accused Shafi @ Lovely was informed that if he desired, any Gazetted Officer or a Magistrate could be called and it is his legal right. It is clear that notice U/s. 50 of the NDPS Act does not state that accused was informed that it was his legal right that he could be taken to the nearest Gazetted Officer or the nearest Magistrate for conducting his search. PW-1 SI Vikas Kumar, PW-6 HC Shokender and PW-8 Ct. Sanjeev have also not stated to this effect in their depositions.
37. It is therefore, clear that accused was not communicated his legal right to be taken to the nearest Gazetted or the nearest Magistrate for his search.
38. The prosecution has failed to prove compliance to the mandatory provision U/s. 50 of the NDPS Act.
39. This Court is deriving support in reaching to this conclusion from 'Om Prakash vs. State' (supra), as under:
"78. Section 50 of the Act mandates that the officer who is about to search a person under Section 42 of the NDPS Act "if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the department mentioned in Section 42 or to the nearest Magistrate". Only when it is not possible to take the person to the nearest Gazetted Officer that, in terms of Section 50 (5), the Officer can proceed to search the person as provided under Section 100 Cr.P.C. After the search, under Section 50 (6) "the officer shall record the reason for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 12/19
80. The admitted position is that the notice under Section 50 of the NDPS Act that was served to the Appellant did not mention that he could be taken to the nearest Magistrate or Police Station which had a Gazetted Officer....."
40. This Court further find support from 'Narcotics Central Bureau v. Sukh Dev Raj Sodhi', AIR 2011 Supreme Court 1939, as under:
"6. From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja's case, it appears that the requirement under section 50 of the NDPS Act is not complied with by merely informing the accused of his opinion to be searched either in the presence of a Gazetted Officer or before a Magistrate. The requirement continues ever after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate."
41. The prosecuting has failed to prove that the obligation U/s. 50 of the Act has been discharged statutorily. Non-compliance of Section 57 of the NDPS Act
42. It is an admitted case of the prosecution that PW-1 SI Vikas Kumar apprehended accused Shafi @ Lovely and carried out his personal search and during personal search, he recovered the contraband from right pocket of trouser of accused Shafi @ Lovely. PW-1 SI Vikas Kumar has not prepared report U/s. 57 of the NDPS Act regarding seizure of contraband from accused Shafi @ Lovely. Therefore, there was no occasion for sending a report regarding search and seizure, within 48 hours, to his immediate superior official.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 13/1943. Though, provision of Section 57 of the NDPS Act is directory and its violation would not ipso facto violate the trial. However, recovery officer cannot totally ignore this provision and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles. 'Gurbax Singh v. State of Haryana', AIR 2001 SC 1002. Delay of 47 days in sending parcel for chemical analysis
44. The recovery of the contraband, according to the prosecution, was effected on 11.02.2012 and sample parcel was sent to FSL for chemical examination on 26.03.2012. The prosecution has not explained such inordinate delay of 47 days in sending sample parcel for chemical examination. Though, delay as such, cannot be fatal to the case of the prosecution. However, there are suspicious circumstances, emerged in this case. In the presence of such suspicious circumstances, as discussed hereinafter, such delay can be held fatal to the case of the prosecution.
45. According to PW-1 SI Vikas Kumar, In-charge of the raiding team, he recovered white colour powder from the possession of accused Shafi @ Lovely. However, FSL report Ex.PW7/B states that sample parcel contained brown coloured material. Cloth parcel Mark A and sample parcel Mark A-1 were produced before the Court and they were found containing brown colour powder. PW-1 SI Vikas Kumar could not give any explanation as to why the substance by the colour of the powder changed from white colour to brown colour.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 14/1946. PW-1 SI Vikas Kumar handed over his seal after use to PW-8 Ct. Sanjeev at the spot. According to PW-8 Ct. Sanjeev, he returned the seal to PW-1 SI Vikas Kumar, after 2-3 days, on being asked by PW-1 SI Vikas Kumar. Therefore, it is clear that PW-1 SI Vikas Kumar received back his seal before sample parcel was sent to FSL for chemical examination.
47. PW-1 SI Vikas Kumar stated in his examination-in- chief that he collected IO bag, field testing kit and electronic weighing machine at the time of leaving the police station vide DD No. 32-A Ex.PW1/B. He further stated that he checked the contents, with the help of field testing kit, he could not confirm the contents of the packet. Surprisingly, PW-6 HC Shokender who was also a member of the raiding team, stated that he had not seen any field testing kit for testing the contraband. To add further, PW-8 Ct. Sanjeev who was also a member of the raiding team, stated that PW-1 SI Vikas Kumar was not having any fielding testing kit with him and he had not tested the contraband at the spot, with any testing kit. Such false deposition on the part of PW-1 SI Vikas Kumar would cause serious dent to the case of the prosecution.
48. Non-compliance of the mandatory provisions of Section 42 and 50 of the NDPS Act would further cause irreversible damage to the case of the prosecution.
49. According to PW-1 SI Vikas Kumar, he got the field testing issued from the malkhana. However, no such register regarding issuance of any field testing kit to him produced.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 15/1950. According to PW-1 SI Vikas Kumar, he had sent the seal cloth parcels with form FSL and a carbon copy of seizure memo with PW-6 HC Shokender to police station alongwith rukka. In his cross-examination, he stated that the said cloth parcels bear all the markings by him in his hand writing except the FIR number. However, the Court observed that the cloth parcels Mark A and Mark A-1 bear the FIR number and other particulars of the case in one hand writing (i.e. of PW-1 SI Vikas Kumar).
51. PW-1 SI Vikas Kumar stated in his examination-in- chief that he recorded refusal of the accused in his hand writing which is Ex.PW1/D. To his dismay, PW-6 HC Shokender stated in his examination-in-chief that he recorded reply of accused on the carbon copy. In his cross-examination, he further clarified it by stating that reply of the accused Ex.PW1/D was recorded by him on the dictation of the accused. It does not stand to reason as to why PW-1 SI Vikas Kumar made a false deposition in this regard.
52. To add further, PW-1 SI Vikas Kumar stated in his examination-in-chief that he had taken out one sample of 2 grams from the recovered smack and put it into a small polythene pouch and the remaining 8 grams was kept in the same polythene packet. However, at the time of production of the case property for the examination of the Court during his evidence, he admitted that the smack which was recovered from the accused was contained in a different polythene packet.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 16/1953. PW-1 SI Vikas Kumar admitted that the said polythene was not seized by him and he had thrown it away.
54. Last but not the least. According to PW-1 SI Vikas Kumar, he received secret information in the police station at about 10.40 p.m. and thereafter, he recorded DD No. 30-A at 10.45 p.m. and produced the said DD and secret informer before PW-3 Insp. Jai Pal Singh. However, PW-3 Insp. Jai Pal Singh has a different story to state in this regard. According to him, on 11.02.2012 at about 10.15 p.m., PW-1 SI Vikas Kumar produced a secret informer before him. A gap of 30 minutes in the depositions of PW-1 SI Vikas Kumar and PW-3 Insp. Jai Pal Singh regarding receipt of secret information and production of secret informer cannot be termed as a minor contradiction.
55. Besides making a general assertion that 4-5 public persons were requested to join the raiding team, nothing has been brought on record to show that any genuine attempt was made to associate any public person in the raiding team. Routinely, such escape route is taken by the police as a ground for not associating public persons in search and seizure proceedings. It has also come on record in the testimony of PW-1 SI Vikas Kumar that there was a market and residential area near the spot but no one from the market or the residential area was called to join the investigation. PW-6 HC Shokender and PW-8 Ct. Sanjeev have also stated to the same effect in their cross-examination. It is not understandable as to why SI Vikas Kumar preferred stray passengers over residents.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 17/1956. There is one more fact required to be taken note of. According to PW-1 SI Vikas Kumar, he weighed the recovered smack and found it to be of 10 grams and he had taken out one sample of 2 grams therefrom. According to him, he was carrying an electronic weighing machine. In order to weigh such a small quantity of material, one needs a weighing machine of a very high degree of precision and accuracy. A slight error of 5 grams-6 grams would be catastrophic to any person. Such error can expose a person to serious consequences and stringent punishment under the NDPS Act. It was incumbent on the part of the prosecution to prove the precise nature of the weighing machine used for measurement of the quantity of drug recovered from accused. It is not the case of the prosecution that the contraband was weighed by any goldsmith with his machine having very high degree of accuracy. Contraband is measured in Forensic Science Laboratory with precision scale. According to FSL report, weight of contraband was 2.52 grams with polythene. Such accuracy in drawing sample of 2 grams by PW-1 SI Vikas Kumar, is not possible with any electronic weighing machine. This is also a very strong suspicious ground in the preparation of sample parcel and benefit thereof must go to the accused.
57. In the presence of afore-said inconsistencies and discrepancies in the case of the prosecution, delay of 47 days would certainly be lethal to the case of the prosecution.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 18/1958. In view of non-compliance of Section 42 and 50 of the NDPS Act, the afore-said discrepancies/lapses in the prosecution case and un-explained delay of 47 days in sending sample parcel to FSL, the prosecution can be said to have miserably failed to prove its charge against accused Shafi @ Lovely.
59. Accordingly, accused Shafi @ Lovely is hereby acquitted from offence U/s. 21 (b) of the NDPS Act.
Announced in the open court SANJAY SHARMA
th
on this 05 day of November, 2014. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
FIR No. 40/2012 State Vs. Shafi @ Lovely Page No. 19/19