Delhi District Court
State vs . (1) Raj Kumar @ Bagri, on 16 October, 2017
IN THE COURT OF AJAY GOEL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440728/2016
State Vs. (1) Raj Kumar @ Bagri,
S/o Sh. Kartar Singh,
R/o Village Kadma, PS Badhra,
District Bhiwani, Haryana.
(2) Rajender Singh,
S/o Sh. Shish Ram,
R/o Village & PO Nangal, PS Bahal,
District Bhiwani, Haryana.
FIR No. : 305/11
Police : Crime Branch
Station
Under : 18/25/29 NDPS Act
Sections
Date of Institution of case : 02.05.2012
Date of Assignment to this Court : 10.07.2017
Date of arguments : 10.10.2017
Date on which judgment was pronounced : 16.10.2017
JUDGMENT:
Case of Prosecution:
1. The case of the prosecution is that on 29.11.2011 at about 8.30 P.M., a secret informer came to Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 1/38 Narcotics Cell, Shakarpur and it was informed to SI Devender Singh that two persons namely Raj Kumar and Rajender, resident of Haryana and used to supply Afeem (opium) in Delhi and Haryana, would come to near Dwarka Flyover in between 8 p.m. to 9.30 p.m. in a TATA Safari car bearing No. HR 99 HT (Temp.) 0870 of white colour for supplying huge quantity of opium today to someone and informed that if raid is organized then both can be apprehended while giving and taking opium. Thereafter, IO SI Devender Singh on satisfying himself produced secret informer before Sh. Kuldeep Singh, Inspector Narcotics Cell at about 6.15 p.m. Inspector Sh. Kuldeep Singh also satisfied himself after due interrogation from Secret Informer.
It was averred that Inspector Kuldeep Singh informed ACP/N&CP Sh. Bir Singh telephonically, who immediately ordered for raid and doing legal proceedings. Thereafter, ASI Devender Singh recorded information vide DD No. 33 at 6.30 PM and Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 2/38 copy of same was presented before Inspector, Narcotics Cell for proceedings further U/s 42 NDPS Act. Thereafter, ASI Devender Singh organised a raiding party, consisting of HC Jagdish Ram, HC Rajesh Kumar, HC Parminder Singh, Ct. Khet Ram, Ct. Yogesh, Ct. Sandeep, HC Om Prakash, Ct. Jai Prakash including secret informer. The said raiding party made a departure entry No. 34 before proceeding from the office. ASI Devender Singh was having IO Bag, Field Testing kit and Electronic weighing machine and took a route via ITO, Cannaught Place, Dhaula Kuan, Palam Airport Underpass and reached near Dwarka Flyover at about 07.45 p.m. in Govt. Gypsy No. DL 1 CM 4228 and DL 1CH 5839, Maruti Car and HC Om Prakash and Ct. Jai Prakash were the driver of the said Gypsy. On the way, ASI Devender Singh had requested 5 public persons at ITO Bus Stop and 6 persons at Dhaula Kuan Bus Stop to join raiding party but they all refused. After reaching near Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 3/38 Dwarka Flyover, ASI Devender Singh briefed the raiding party and got parked gypsy and car on the road in the shape of barricade. At about 7.55 P.M., the members of the raiding party were deputed at different points on the spot and started waiting for aforesaid named persons. At about 8.30 p.m., one white colour TATA Safari car was seen coming from the side of underpass and when the same was near above them at a distance of 5 mtrs, the same was pointed by the secret informer. The said TATA Safari car was got stopped. All the raiding team members surrounded the TATA Safari and two persons were found sitting in the same and on enquiry they disclosed their names as Rajender Singh and Raj Kumar @ Bagri. ASI Devender Singh stated to the both the persons that he was having information regarding supply of opium and they were also informed about their all legal rights qua his search in the presence of a Gazetted Officer or a Magistrate. Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 4/38 They were also served with a notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act). However, both the accused declined to avail the said right. On search of both the accused, nothing incriminating was found from their possession. ASI Devender Singh took search of the TATA Safari car and found two plastic containers having read colour lid kept ahead of the seat beside the driver's seat. The recovered plastic containers were taken out and the same were checked by opening their lids. In each container, one plastic panni tied with sutli was found and after opening the pannies, the same were found containing some sticky substance of black colour. On smelling and on testing with the help of field testing kit, the substance was found to be Afeem (Opium) and the containers were given Mark A and B. The container A was weighed on electronic weighing scale and was found to be 13 kg. The container B was weighed on Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 5/38 the electronic weighing scale and was found to be 12 kg. From both the container A and B, two samples from each container of opium of 50 gm each were taken and the same were kept in four separate momi thailies and the same were tied with the rubber band and were converted into four separate pulandas with the help of white colour cloth and the said pulandas were given Mark A1, A2, B1 and B2. Thereafter, the plastic pannies in the containers Mark A and B were tied with the sutli and the containers were converted into the aforesaid pulandas with the help of pieces and filled FSL form and the aforesaid pulandas with the seal of DST. A Tehrir was prepared against accused Rajender Singh and Raj Kumar Bagri for the offence U/s 18/25/29 NDPS Act and the same was handed over to HC Om Prakash alongwith FSL Form and carbon copy of notice under Section 55 NDPS Act. Reports under Section 57 NDPS Act were prepared and sent to senior official. The samples of Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 6/38 the recovered substance were sent to FSL for chemical examination. After completion of investigation, the charge sheet was filed. Charge against the accused:
2. Vide order dated 09.10.2012, the charge for the offences under Sections 18(C)/25/29 of the NDPS Act was framed against the accused to which he pleaded not guilty and claimed trial.
Witnesses examined:
3. The prosecution examined 10 witnesses in support of its case who are as follows:-
PW1 is HC Rajesh Kumar. He joined the investigation with ASI Devender Singh and the member of the raiding party and proved the notice under Section 50 of the NDPS Act served upon accused Raj Kumar Bagri and his reply as Ex. PW1/A and Ex. PW1/B respectively, notice under Section 50 Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 7/38 of the NDPS Act served upon accused Rajender Singh as Ex. PW1/C and Ex. PW1/D respectively, their personal search as Ex. PW1/E and Ex. PW1/F, common seizure memo of pulandas and FSL Form as Ex. PW1/G, arrest memo of both the accused persons as Ex. PW1/H and Ex. PW1/I, personal search of both the accused persons as Ex. PW/J and Ex. PW1/K, disclosure statements of both the accused as Ex.
PW1/L and Ex. PW1/M, seizure memo of car bearing No. HR 99 HT (temp) 0870 as Ex. PW1/N. PW2 is HC Om Prakash. He has deposed that on 08.12.2011, he received two sealed pulandas Mark A1 and B1 sealed with the seal of DST and CRM and one FSL form bearing the same seal from MHC(M) HC Jag Narain alongwith some documents including copy of FIR and seizure memo and had taken the same to FSL Rohini vide RC No. 573/21 and deposited the same in the FSL Rohini and obtained the receipt of the same and thereafter, returned to Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 8/38 PS Crime Branch and handed over the receipt of FSL to HC Jag Narain.
PW3 is HC Adal Singh. He was the Duty Officer and proved the copy of FIR as Ex. PW3/A, attested copy of DD No. 28 and 30 as Ex. PW3/B and Ex. PW3/C respectively and his endorsement on rukka as Ex. PW3/D. PW4 is SI Sunil Jain. He has deposed in the night of 29/30.11.2011, the investigation of the present case was assigned to him. He has further deposed that ASI Devender Singh handed over the original documents and custody of the accused persons to him and briefed the facts of the recovery of contraband and proved the site plant as Ex. PW4/A, arrest memo of accused Raj Kumar @ Bagri as Ex. PW1/H, his personal search as Ex. PW1/J and his disclosure statement as Ex. PW1/L and also proved the arrest memo of accused Rajender Singh as Ex. PW1/I, his personal search as Ex. PW1/K and his Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 9/38 disclosure statement as Ex. PW1/M, seizure memo of TATA Safari as Ex. PW1/N, special report under Section 57 of NDPS Act as Ex. PW4/B. He has further deposed that on 08.12.2011, sample pulandas were sent to FSL Rohini for chemical examination and proved the relevant DD entries collected by him as Ex.PW4/C1, Ex.PW4/C2, Ex.PW4/C3, Ex.PW4/C4, Ex.PW4/C5 and Ex.PW4/C6 and report of FSL as Ex.PW4/D. PW5 is Inspector C.R. Meena, who was posted as SHO Crime Branch. He has deposed that on the intervening night of 29/30.11.2011, HC Jagdish Ram came to his office at 01.20 a.m. (midnight) and handed over him 6 sealed pulandas, Form FSL and carbon copy of seizure memo, all the pulandas were sealed with the seal of DST and FSL form was also having same seal and he counter sealed all the 6 pulandas and FSL Form with the seal of CRM and after enquiry marked FIR No. on all the pulandas, FSL Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 10/38 form and carbon copy of the seizure memo and put his signatures, handed over the same to HC Jag Narain vide relevant entry made in register No. 19 as Mark X. He also proved DD Entry No. 29 in this regard as Ex.PW4/C4.
PW6 is ASI Om Prakash. He has deposed that he was posted as Reader to ACP Bir Singh, Narcotics Cell, Crime Branch, Delhi. He has further deposed that on 29.11.2011, true copy of DD No.33 was received and the same was diarized in the dairy vide No. 3470 put up before the ACP and proved the same as EX.PW6/A. He has further deposed that on 30.11.2011, two special reports under Section 57 of the NDPS Act regarding seizure of opium and arrest of the accused persons were received through dak and the same were also diarized vide No. 2471 and 3472 and both were put up before ACP and proved the same as Ex.PW6/B and Ex.PW6/C and also proved the dairy entries as Ex.PW6/D (entry No. 2470) and Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 11/38 Ex. PW6/E (2471 and 2472).
PW7 is Inspector Kuldeep Singh. He has deposed that on 29.11.2011, ASI Devender Singh alongwith secret informer came to his office and informed him about the secret information and after his satisfaction, he conveyed the said information to Sh. Bir Singh, ACP, Narcotics Cell telephonically at his residence. Thereafter, ACP order him to conduct raid and take legal action. On this ASI Devender Sing made DD no. 33 in daily dairy register of Narcotics Cell and he forwarded the copy of same to ACP, Narcotics Cell and the said DD Entry as Ex.PW6/A. He has further deposed about the raid team, production of both the accused persons before him by SI Sunil Jain for arrest and reports under Section 57 NDPS Act regarding seizure of 25 kg of opium and arrest of two accused persons respectively and he forwarded the same to ACP and to his office on the same day and proved the report of ASI Devender Singh as Ex.PW6/B Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 12/38 and of SI Sunil Jain as Ex.PW6/C. PW8 is HC Jag Narain. He produced original register No. 19 of Malkhana and proved the copies of entry No. 1433 as Ex. PW-8/A and entries in continuation of the said entry to the effect of personal search articles of both the accused persons, jamatalashi items of both the accused persons and deposition of TATA Safari vehicle bearing No. HR 99 HT (temp.) 0870, proved the Road Certificate No. 573/21/11 as Ex.PW8/C, copy of the receipt/ acknowledgment of case acceptance issued by FSL as Ex.PW8/D. PW9 is HC Jagdish Ram. He has deposed that regarding the raid conducted by ASI Devender Singh as he was member of the said raiding team and narrated whole incident of raid and arrest of accused. PW10 SI Devender Singh. He is the First IO of the present case and narrated about the secret information received by him through secret informer Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 13/38 and the whole incident of raid conducted by him on the instructions of Inspector Kuldeep Singh, who informed the Sh. Bir Singh, ACP, Narcotics Cell on telephonically. He proved the DD Entry No. 33 regarding recording of secret information as Ex.PW6/B, DD No. 34 regarding making departure entry as Ex.PW4/C1, notice under Section 50 NDPS Act served to Raj Kumar of the accused as Ex.PW1/A and his reply as Ex.PW1/B, notice under Section 50 NDPS Act served to Rajender of the accused as Ex.PW1/C and his reply as Ex.PW1/D, search memo of both the accused as Ex.PW1/E and Ex.PW1/F, seizing of case property as seizure memo Ex.PW1/G, rukka as Ex.PW9/A, site plan as Ex.PW4/A, arrest memo of both the accused as Ex.PW1/H and Ex.PW1/I, personal search of both the accused as Ex.PW1/J and Ex.PW1/K, seizure memo of recovered car as Ex.PW1/N and a report under Section 57 NDPS Act as Ex.PW6/B. Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 14/38
4. Thereafter, Prosecution Evidence was closed on the request of Ld. APP vide order dated 27.04.2017 and matter was posted for recording of statement of accused U/s 313 Cr. P. C.
5. Statement of accused U/s 313 Cr. P. C. was recorded whereby all the incriminating evidence was put to them to which they denied all allegations and accused pleaded their innocence. It was stated that case property has been proved wrongly, nothing incriminating was ever recovered from their possession and the case property was planted upon them. They have been falsely implicating in the present case by the officers of the Delhi Police. During recording of statement, accused persons wished to lead evidence in their defence.
6. Both the accused persons in their defence had examined DW1 Sh. Karamvir and DW2 Sh. Jai Singh. 6(a). DW1 Sh. Karamvir was the Ex-Sarpanch of the village Badrahi, District Bhiwani, Haryana and Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 15/38 deposed about taking of accused Raj Kumar @ Bagri by some persons, who were in civil uniform from the social meeting held on the issue of theft of vehicles and battery of the vehicles and on enquiry by them, they deposed that they were Police Officials. 6(b) DW2 Sh. Jai Singh was the Ex-Sarpanch of the village Nagal, District Bhiwani, Haryana and deposed regarding taking of accused Rajender Singh by some persons, who were in civil uniform from his house and on enquiry they deposed that they were from Delhi Police.
7. I have considered the rival submissions and gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence.
ARGUMENTS OF PROSECUTION:
8. The prosecution of the accused had been launched Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 16/38 on the receipt of secret information by secret informer. It is stated by Ld. APP for State that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of both the accused beyond reasonable doubt. ARGUMENTS OF DEFENCE:
9. On the other hand, Ld. Counsel for accused persons vehemently argued that the accused persons are innocent. It is argued by him that the statement of prosecution witnesses is full of omissions and improvements and in view of improvements made by PWs, their evidence has lost the credibility and cannot be relied upon to give finding of guilt against the accused. It is also argued that the present accused persons have been falsely implicated.
10. In rebuttal, the Ld. APP for the state submitted that the contradictions in the testimony of material witnesses are minor and natural and does not affect the case of the Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 17/38 prosecution. He further argued that nothing has come in the cross-examination of PWs to dis-credit them. JUDGMENT RELIED UPON ON BEHALF OF STATE.
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58;
2) Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783;
3) Delias Christopher Vs. Customs 2004 (3) JCC 147;
4) State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103;
5) D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416;
6) State of Punjab Vs. Baldev Singh (1999) 3 SCC 977;
7) Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77;
8) Karnail Singh Vs. State of Haryana (2009) 8 SCC
539.
JUDGMENT RELIED UPON ON BEHALF OF ACCUSED. Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 18/38
1) State of Rajasthan Vs. Chhagan Lal (Crl A. No. 592/05) decided by Hon'ble Supreme Court;
2) Mohd. Javed Vs. State 84 (2000) DLT 244 decided by Hon'ble High Court of Delhi;
3) Dinesh Kumar Vs. State 1993 (1) C. C. Cased 267 (HC) passed by Hon'ble High Court of Delhi;
4) Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC), passed by Hon'ble High Court of Punjab and Haryana at Chandigarh;
FINDINGS:
11. The Ld. Counsel for accused has argued that the notice U/s 50 NDPS Act was defective as the accused were not explained about their legal right to be searched before a Gazetted officer or Magistrate. But Ld. APP for the state has argued that notice U/s 50 of NDPS Act were served upon the accused whereby they were apprised about their legal rights. During the arguments Ld. Counsel for the accused referred the case of D. K. Basu Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 19/38 Vs. State of West Bengal (1997) 1 SCC 416 to contend that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence.
12. Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
13. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 20/38 mandate of the said Section. This issue has been settled by State of Punjab Vs. Baldev Singh (1999) 3 SCC
977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 21/38 to be searched before a Gazette Officer or a Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was substantial compliance with the requirement of Section 50 of NDPS Act. The Court did not agree with the contention that there was non-compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made.
Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 22/38
14. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
15. The prosecution witnesses are clear and consistent in their deposition about the service of notice U/s 50 of NDPS Act before taking search of accused persons. The notices U/s 50 of NDPS Act Ex. PW-I/A and PW-1/C are proved on record and on perusal of same, it is clear that statutory rights of accused in this regard were clearly Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 23/38 explained to them. So this defence is not available to the accused and argument qua the same is discarded.
16. The counsel for accused has argued that there is some loop holes regarding the seizure of property and deposition of same in Malkhana. This argument is not tenable because prosecution has established the same through evidence of PW-8 and there is no doubt regarding seizure and deposit of the case property in Malkhana.
17. Now coming to the merits of the case, from perusal of record, it is clear that according to prosecution, the accused Rajinder Singh was driving the vehicle in question and substance in question was allegedly recovered from the said vehicle which was kept under the legs of his co-accused Raj kumar @ Bagri and the Co- accused Raj Kumar @ Bagri was owner of said vehicle. Even though the story of prosecution is believed, the accused Rajinder Singh was only the driver of vehicle and he had no concern whatsoever with regard to alleged recovery of contraband. It is argued that alleged recovered substance was never in his possession and he cannot be liable for possession of alleged contraband and Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 24/38 according to accused Rajinder Singh and also according to DW-2, the accused was forcibly lifted from his village and brought to Delhi where the present case was planted on him.
18. It is further argued that the vehicle in question was apprehended after sunset. When the alleged recovery was affected after sunset then the officers should have gone to the spot with the search warrant as required U/s 41 and 42 of NDPS Act and in the present case, neither the police officials in general nor the IO in particular had gone to spot with any search warrant as required under the act. According to the Hon'ble Supreme Court in State of Rajasthan Vs. Chhagan Lal (Crl A. No. 592/05), carrying search warrant to the spot was necessary and if no such warrant or authorization is carried, it was held to be non-compliance of section 42 (1) of the NDPS Act.
19. As far as contradictions in the testimony of witnesses is concerned, the Ld. Counsel for the accused argued that as per deposition of PW-10 dated Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 25/38 27.04.2017, he had prepared the first document at the spot i.e. non-recovery memos before taking search of vehicle. Whereas according to PW-1, HC Rajesh Kumar, the first document which was prepared at the spot was notice U/s 50 of NDPS Act of accused Raj Kumar @ Bagri. It is further argued that according to PW-1, notice U/s 50 of NDPS Act and non-recovery memos were prepared on the bonnet of offending vehicle and whereas as per deposition of PW-10, all the documents except rukka were prepared by him outside the Govt. vehicle while keeping papers on the bonnet of said vehicle.
20. It is important to note here that the recovery in the present matter was effected by police officials on 29.11.2011 and the samples were sent to FSL on 08.12.2011 i.e. after 10 days. To this effect, reliance is placed upon judgment titled as Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC), passed by Hon'ble High Court of Punjab and Haryana at Chandigarh, wherein it was held as under: Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 26/38
"15. There is another important factor which is taken for consideration is that the alleged sample was taken on 26.07.1992 and it was sent to the Chemical Examiner on 12.08.1992. There is no explanation furnished by the prosecution for the delay in sending the sample to the FSL so late. This lapse of the prosecution that the delayed sending of samples to FSL has not been taken happily by the courts. In Narain Vs. State of Haryana 1997 (1) RCR 414 even the delay of 10 days for sending the samples of the contraband to the FSL was taken to be such a delay which caused a dent in the prosecution story".
21. To make the matter worst, the accused have led defence evidence and produced DW1 Sh. Karamvir and DW2 Sh. Jai Singh. DW1 Sh. Karamvir who was the Ex-Sarpanch of the village Badrahi, District Bhiwani, Haryana had deposed about taking of accused Raj Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 27/38 Kumar @ Bagri by some persons, who were in civil uniform from the social meeting held on the issue of theft of vehicles and battery of the vehicles and on enquiry by them, they deposed that they were Police Officials. Further DW2 Sh. Jai Singh who was the Ex- Sarpanch of the village Nagal, District Bhiwani, Haryana had also deposed in same fashion regarding taking of accused Rajender Singh by some persons, who were in civil uniform from his house and on enquiry they deposed that they were from Delhi Police. However, as per story of prosecution they were arrested in Delhi alongwith contraband in their vehicle, so now the testimony of DW-1 and 2 becomes very important and cannot be ignored which falsify the story put forth by prosecution.
22. Further PW-10 during his cross-examination recorded on 27.04.2017 deposed on page No. 4 that "the arrest memo Ex. PW-1/H of accused Raj Kumar was prepared by SI Sunil Jain at the spot from top to Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 28/38 bottom. It was signed by me and HC Rajesh Kumar after it was prepared by SI Sunil Jain. I do not remember how the information of arrest of accused Raj Kumar was given to his relatives or family members. No relative or family member of accused Raj Kumar or any Panch or Sarpanch came at the spot." Whereas to very shock and surprise, the arrest memo of accused Raj Kumar Bagri, there are signature of Sh. Karamveer who is Sarpanch mentioned at column No. 9 of arrest memo which clearly establishes that Karamveer was present at the spot and thus it becomes very crystal clear that statement of PW-10 is totally false, wrong and self created and cannot be relied upon.
23. Further in the after lunch cross-examination on 27.04.2017, on the request of defence counsel, the battery of Tata Safari was produced with make Amaron having a sticker of February 2016 from the vehicle. Whereas the facts are that vehicle in Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 29/38 question was purchased in 2011 some days ago of this alleged incident and after the date of alleged incident i.e. on 29.11.2011, the vehicle always remained in possession of police. So the question is that how the battery of make 2016 came on the vehicle which is already in possession of police since 2011. So it creates doubt in the case of prosecution.
24. The Ld. APP for the State argued that witnesses produced by prosecution are wholly reliable and trustworthy and nothing could be brought out in their cross-examination to discredit them. Secondly, it has been argued by Ld. APP that the present case is a case of recovery of huge quantity of gaanja. It is not possible to plant such a huge quantity upon the accused person. Moreover, there is no reason to falsely implicate the accused. In the case of State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, it was held that:
"The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H. P. 2005 Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 30/38 (1) Crimes 358 (H. P.) it was observed: it is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person ......... police had no axe to grind in implicating the accused."
25. It is not so that this Court is not taking into consideration the above argument. Law is well settled on these submissions. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons-falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar". Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 31/38
26. Even otherwise, it has been held in case of Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783 that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC 147. But balance has to be maintained if some doubt is created regarding the involvement of accused as happened in present case qua some lacunas then the situation warrants that public witnesses should have been involved in the present matter. Though it is not always true that statement of prosecution witness has to be thrown away but when shadow of doubt is created from circumstances then joining of independent witness is relevant. Though in the present case, it has been tried to be brought on record from the testimony of prosecution witnesses that sincere efforts were made to join the public witnesses but none of them inclined to join. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 32/38 police and court proceedings. The non joining of public witnesses is not fatal to the case as otherwise the case is proved by way of consistent and cogent evidence. This is also fortified by the judgment of Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under:-
"6....... No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 33/38 conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
27. It is settled law as laid down in Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution" but in the present case due to reasons mentioned above, the necessity of joining of public witnesses is paramount. The long distance from office to the location of commission of crime have been covered by the IO but surprisingly enough they could not find any witness. Though it is correct that such a large quantity cannot be implanted as observed in the judgment of Balwant Rai Supra but simultaneously, if on other grounds, the accused persons are entitled to the benefit then ground itself cannot be Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 34/38 sufficient to convict them. The facts of the present case as observed above warrant involvement of public witnesses. Reliance can be placed upon Ramesh & Anr. Vs. State of Haryana 1998 (1) C. C. Cases 17 (HC) decided by High Court of Punjab and Haryana at Chandigarh. This is case where requirement of public witness was necessary. The spot was thickly populated and there were movements of innumerable vehicles, cyclists, bikes and pedestrians but to no effect. It is pertinent to mention here that all witnesses have either denied use of mobile phone during relevant time or showed ignorance of its use by the other raiding party members to avoid their location during relevant period. The testimony of PW-1 is important to that effect as the attention of court is drawn to the cross-examination of PW-1 dated 10.05.2014 wherein on page no. 2, he deposed that "the spot was busy road. Many people were coming and going on the same road" and also stated in the bottom line that "I did not use my mobile phone at the spot nor I had seen anyone from the raiding team to use their mobile phone. Again said Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 35/38 that I do not remember if any member of the raiding party used the mobile phone or not at the spot" and it is argued that both the IO of the case, have not complied with the provisions U/s 100 (iv) of the NDPS Act and have not joined any public witness in the case. The Hon'ble High Court of Delhi in case titled Mohd. Javed Vs. State 84 (2000) DLT 244 has held that "No serious efforts made by SI to associate any independent witness with raiding party - Road leading to Yamuna Bridge is busy road - alleged recovery must have been witnessed by many passer by-police could not find any independent witnesses to attest search and seizure". Therefore, on this count also, the prosecution has not been able to satisfy the court that investigation was fair and impartial
28. From above mentioned all facts and circumstances and other discussions as detailed above, it becomes very clear that the present case is not such case where the complexity of accused has been proved beyond reasonable doubt. From the testimony of witnesses and Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 36/38 above discussions, it is crystal clear that there is shadow of doubt upon accused persons regarding commission of offences framed against them. Thus accused persons are required to be acquitted in the present case.
29. In the light of above discussions and observation, there is no consistent and reliability in the testimony of prosecution witnesses and the defence taken by the accused is found to be probable.
30. In the instant case, all the procedural safeguards provided under a statute have not been strictly complied with. The prosecution has not discharged its burden of proving its case against the accused persons beyond all reasonable doubt. This case is based on conjectures or surmises.
31. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, it is held that there are several reasons to discredit the testimony of prosecution witnesses. Thus on all counts, guilt of accused persons has not been duly proved and they are given benefit of doubt qua the charged sections. Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 37/38
32. Both the accused i.e. Raj Kumar and Rajender Singh are acquitted for commission of offence punishable U/s 18 (c)/25/29 of NDPS Act.
33. Bail bonds u/s 437A Cr. P. C. in the sum of Rs.25,000/- each have been furnished on behalf of the accused persons which have been accepted and shall remain in force for a period of six months from the date of its acceptance. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. File be consigned to record room. Pronounced in the open court. (AJAY GOEL) Dated: 16.10.2017 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
Sessions Case No. 440728/2016 State Vs. Raj Kumar @ Bagri & Anr. Page No. 38/38