Delhi District Court
State vs Savita Page No. 1 Of26 on 9 August, 2016
IN THE COURT OF SH. A. K. KUHAR, SPECIAL JUDGE;NDPS
SOUTH DISTRICT, SAKET
SC No.6866/2016
FIR No. 480/2012
u/s 20 (b) (ii) (B) of NDPS Act
PS - Govind Puri
Computer ID No: CNR No. DLST010001442012
State
versus
Savita ..........accused
w/o Sh. Jatin
presently residing at C134, Bhuminhin Camp,
Govind Puri, New Delhi
Date of filing of charge sheet : 17th November 2012
Arguments concluded on : 28th July 2016
Judgment announced on : 09th August 2016
J U D G M E N T
1.The accused Savita was sent up for trial under section 21 (b)
(ii) (B) of the NDPS Act for alleged illegal possession of 3.5 kgs of SC No. 6866/2016 State vs Savita page no. 1 of26 'ganja' when she was apprehended in the area of Bhumihin camp, Govind Puri on the intervening night of 20/21.09.2012. Brief facts of the case, as culled out from the FIR and final report u/s 173 Cr. P.C., are as follows.
2. On 20.9.2012 at about 10.10 PM, a secret informer met SI Amit Bhardwaj in Police station Govind Puri and informed him that a lady named Savita r/o Hutments, Indira Gandhi camp, Taimur Nagar supplies 'ganja' in Bhumihin camp, Govindpuri. She will be going around 12.30 am with a huge quantity of 'ganja' for supplying near 'khatha khazana'. If raid is conducted at that time, she can be apprehended along with 'ganja'. SI Amit Bhardawaj (complainant) after satisfying himself regarding the veracity of the secret information, produced the said informer before SHO Police Station Govind Puri Sh. Manoj Pant who, after questioning the secret informer, immediately called up the ACP Kalkaji Dr. Rajeev Sharma and after taking verbal instructions from him, instructed the complainant to form a raiding team and proceed to the designated spot for necessary action. Before proceeding to conduct the raid, a report DD No. 41 A (Ex. PW2/A) was prepared in compliance with SC No. 6866/2016 State vs Savita page no. 2 of26 Section 42 (1) of the NDPS Act and submitted to the SHO P.S. Govindpuri.
3. The raiding team consisted of SI Amit Bhardwaj, PSI Ramakant, Ct. Yogesh Tomar, Ct. Udai and W/Ct. Archana and was accompanied by the secret informer. The raiding team along with IO kit and electronic weighing machine proceeded to the raiding spot in a govt. Maruti gypsy bearing number DL1CI7421 and reached in front of 'khatha khazana' public school at about 12.05 pm. The gypsy was parked at distance and the raiding staff took positions in front of the said school near the path leading to 'Bhumihin' camp. The raiding team tried to associate 45 passers by after disclosing their official positions but none of them volunteered/agreed to be apart of the raiding team.
4. At about 12.40 am, the raiding team saw a lady aged about 30 yrs coming on foot from the direction of Navjiwan camp T - point carrying a 'mehndi' colour bag on her shoulder. When she was about 2025 meters from the raiding team, the secret informer identified her as Savita and thereafter left the spot. Accused walked up slowly SC No. 6866/2016 State vs Savita page no. 3 of26 towards the school 'katha khazana' and stopped 2 3 meters short of the raiding team. Thereafter, she tried to walk towards TA TKD Extension when the raiding team apprehended her. SI Amit Bhardwaj revealed his identity along with other members of the raiding team to accused who disclosed her name as Savita w/o Jatin r/o Hutment no. 111, Indira Gandhi camp, Taimur Nagar, New Delhi. SI Amit Bhardwaj left the accused in the custody of Ct. Archana and other staff and went to get the govt. vehicle Gypsy. After he got the govt. vehicle, the accused was made to sit on the back side of the Gypsy along with other staff. Accused was informed that there is suspicion that she was in the possession of 'ganja' and was informed about her legal right search before a Gazetted officer or a Magistrate and also that prior to her own search, she could search the staff members of the raiding team.
5. Notice under section 50 of the NDPS Act (Ex. PW1/A) was served upon her but the accused did not opt for her search before a Gazetted Officer or a Magistrate. A carbon copy of the Notice under section 50 of NDPS Act was also handed over to accused Savita. Since, she disclosed that she was illiterate, the contents of Notice SC No. 6866/2016 State vs Savita page no. 4 of26 under section 50 NDPS Act were read over and explained to her. Thereafter, her refusal to get searched was also recorded on the said Notice in the language which she understood and she signed the same (Ex. PW1/B). Before proceeding further, the raiding team made another effort to join the public witnesses in search procedure but no one came forward. The accused was then physically searched with strict regard to decency by lady Ct. Archana. From the personal search of the accused, Rs. 1060/ in cash and an artificial gold chain was recovered. The 'Mehndi' colored bag that she was carrying on her left shoulder was handed over to SI Amit who opened it and a polythene wrapper with some narcotic like substance in it was taken out. The raiding team informed the accused that the said substance looks like 'ganja' after smelling the same. The said substance was then weighed which came to 3.5 kgs. 2 samples of 250 gms each were taken and put in 2 separate transparent bags, sealed with white cloth and were marked as Mark A and B. The residual 3 kgs of suspected 'ganja' was put back in the polythene wrapper from which it was taken out and after putting it back in the 'mehndi' colored bag, sealed with a white cloth and marked as Mark C. SC No. 6866/2016 State vs Savita page no. 5 of26
6. SI Amit Bhardwaj then filled up the FSL form at the spot and put his seal 'AB' on each of the three bags - A, B & C, and also put a mark of the seal as specimen on the FSL form also. Th seal 'AB' was then handed over to CT. Yogesh Tomar. Thereafter the Complainant took into formal custody all the three parcels i.e. Mark A, B & C. Since, accused Savita was primafacie found complicit in the commission of offfence u/s 21 of the NDPS Act, sent a rukka through Ct. Udai Chand at about 3.30 am along with all the three parcels, FSL Form and carbon copy of the recovery memo of 'ganja' to SHO Police Station Govindpuri for registration of the case. At 3.45 AM, FIR no 480/12 was recored on the basis of the rukka sent by SI Amit Bhardwaj through Ct. Udai. Thereafter, the investigation of the case as handed over to SI Shri Krishna Singh who reached the place where accused Savita had been apprehended at about 5.40 am along with Ct. Udai Chand and thereafter the investigation was taken over by SI Shri Krishna.
7. As per the final report submitted under section 173 Cr.PC, after formally arresting accused Savita, a search was conducted to trace the one "Kanan" who, as per the disclosure of the accused, was the SC No. 6866/2016 State vs Savita page no. 6 of26 main culprit for whom she worked but the said person could not be traced.
8. As per report of the FSL no. 2012/C8035 dated 13.12.2012, (perse admissible under Section 293 Cr. PC), the sample was found containing 'ganja'. After completion of investigation, the charge sheet was filed in the Court against the accused for the offences punishable u/s 21 of NDPS Act.
9. Arguments on the charge were heard. On 21.12.2012, accused was charged for the offence punishable u/s 21 (b) (ii) (B) of NDPS Act on the allegation that on 20.09.2012 at about 12:40am in front of Katha Khazana Public school, Govind New Delhi, she was found to be in possession of 3.500 kg of 'ganja' without any permit or licence and in contravention of the provisions of Section 8 (c) of NDPS Act. Accused had pleaded not guilty and claimed trial.
10. The prosecution, in order to substantiate its case, examined 13 witnesses all of whom were official witnesses. Out of these 13 prosecution witnesses, 5 witnesses were members of the raiding team which apprehended accused Savita. The accused, despite having specifically stated in her statement recorded u/s 313 Cr. PC SC No. 6866/2016 State vs Savita page no. 7 of26 that she shall lead evidence, did not lead evidence in her defence.
11. In order to prove its case, Prosecution examined following witnesses:
11.1 Probationary SI Ramakant (PW1) was a member of the raiding team constituted by SI Amit Bhardwaj on the instructions of SHO PS Govindpuri. In his examinationinchief, this witness largely deposed on the lines of the FIR. He deposed that he was present in police stn. Govindpuri on the intervening night of 20/21.9.2012 along with SI Amit, CT. Yogesh. CT. Udai Hand and lady CT. Archana when they were informed by SI Amit that secret information has been received that a lady would come to deliver a huge quantity of 'ganja' near the Bhumihin camp, Govind Puri.
Thereafter, the raiding team was constituted by SI Amit Bhardwaj and along with the secret informer, the raiding team proceeded in a govt. Maruti Gypsy to the spot near school 'Katha Khazana' which was near the Bhoomiheen camp.
11.1.2 This witness further deposed about apprehending the accused and conducting her search. He also deposed that when SI SC No. 6866/2016 State vs Savita page no. 8 of26 Shri Krishna came back to the spot along with Ct. Udai carrying the copy of the FIR, the money and artificial gold chain which were recovered from the accused after her personal search, was handed over to SI Shri Krishna. He also deposed that SI Shri Krishna prepared the site plan and recorded his statement u/s 161 Cr. PC. This witness identified all the three parcels i.e. MARK A. B & C containing the 2 samples and residual of suspected narcotic (ganja) seized from the accused Savita.
11.1.3 In his cross examination, PW 1 answered that all the documents were prepared by the IO while sitting in the Gypsy. He also stated that he was not carrying any arms when they went for the raid and also expressed ignorance about carrying of arms by other members of the raiding team. He also expressed ignorance about the number of hours that he remained at the spot. He expressed his ignorance as to the exact time when the secret informer had told the IO about the incident and whether the IO had informed the ACP at all about the incident. In the end, he denied all suggestions that the case has been falsely registered against the accused or that he was not present at the spot when the police raid team apprehended accused. SC No. 6866/2016
State vs Savita page no. 9 of26
11.2 Inspector Manoj Pant, SHO (PW 2) is a material
witness since his testimony will have a significant bearing on whether the SI Amit Bhardwaj did infact receive secret information pursuant to which the raiding team was constituted. This witness deposed that on 20.9.2012, at about 10.40 pm, SI Amit brought the secret informer before him. After satisfying himself regarding the veracity of secret information, PW 2 telephonically informed Sh. Rajeev Sharma ACP Kalkaji on whose directions, PW 2 further directed SI Amit Bhardwaj to form a raiding team and proceed to the spot.
11.2.2 PW 2 testified the secret information was reduced to writing vide DD No. 41A (copy of the said report is PW2/A) in compliance of section 42 (1) of the NDPS Act and was sent to the ACP on the following day i.e. 21.9.2012. This witness also deposed regarding affixing his seal 'MP' on the sealed parcels (pullandas) and deposit of the same along with Form FSL and carbon copy of the seizure memo in the malkhana. He further deposed that IO SI Shri Krishna has sent his report u/s 57 of he NDPS Act which was forwarded by him to the ACP.
SC No. 6866/2016
State vs Savita page no. 10 of26 11.2.3 In his cross examination, he reiterated having met the
secret informer and thereafter telephonically informing the ACP Kalkaji. He denied all suggestions that he neither got the case property deposited in the 'malkhana' nor sent the report u/s 57 NDPS Act to the AC, or that he did not put his seal 'MP' on the sealed parcels.
11.3 HC Vedpal Singh (PW 3). He was the Duty Officer on 21.09.2012. He deposed about receipt of rukka through Ct. Udai Chand at 03:45am for registration of FIR (Ex. PW3/A). 11.4 Ct. Seva Singh (PW4) was posted as Constable at PS Govind Puri. He has deposed that on 14.11.2012 he was handed over one sealed parcel sealed with the seal of 'AB' and FSL form for depositing the same at FSL Rohini vide RC No. 215/21/12. PW4 stated that same were deposited with FSL by him vide acknowledgement receipt (Ex. PW4/A).
11.4.1 In his cross examination, he denied all suggestions that the sealed parcel was tampered with while it was in his custody, or that he did not deposit the sealed parcel with FSL Rohini. SC No. 6866/2016
State vs Savita page no. 11 of26
11.5 Dr. Rajeev Sharma Addl. DCP Central District (PW5)
received the information u/s 57 of NDPS Act (Ex. PW5/A) regarding seizure and arrest of 'ganja' from accused Savita. The said information was entered in the 'Dak' register of the office, copy of which is (Ex. PW5/B).
11.5.1 In his cross examination, this witness denied having enquired personally from the IO regarding seizure and arrest from Savita. He however testified that report u/s 57 NDPS Act was sent by SI Shri Krishan Singh and the same was forwarded to his office by the SHO P.Stn. Govindpuri. He denied all suggestions that he never received any telephonic call from SHO, PS Govindpuri regarding receipt of secret information, or that he never receive the information/report u/s 57 of the NDPS Act. He also denied suggestion that Ex. PW5/A and Ex. PW5/ B i.e. report u/s 57 NDPS Act and the receipt of the same in the 'dak' register were manipulated. 11.6 HC Shiv Singh (PW 6). He was posted as MHC (M) in PS Govindpuri. He has deposed that on 21.09.2012 Inspector Manoj Pant, SHO had deposited three parcels, FSL form and copy of SC No. 6866/2016 State vs Savita page no. 12 of26 seizure memo in the malkhana. He deposited the same vide entry no. 1230 (Ex. PW6/A) in register no. 19.
11.6.1 PW6 also deposed that on the same day i.e. on 21.09.2012, SI Shri Krishan deposited the personal articles of accused i.e. Rs. 1060; artificial golden chain and one carbon copy of Notice u/s 50 of NDPS Act and these articles were deposited in the malkhana against sl. no. 1230 vide endorsement at point A which is Ex. PW6/A. 11.6.2 PW6 also deposed that on 14.11.2012, he had sent sample parcel mark A alongwith FSL form through Ct. Sewa Singh to FSL, Rohini vide RC (Ex. PW6/B).
11.6.3 In his cross examination, this witness was questioned primarily on the aspect of entry in register no. 19 i.e. Ex. PW 6/A. He confirmed that entry Ex. PW 6/A is in his own handwriting and he filled up the same from copy if the seizure memo. He denied all suggestions that the said entry was manipulated. He however deposed that CT. Sewa Singh did not sign the register no. 19 while taking away the parcel Mark A and FSL Form.
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State vs Savita page no. 13 of26
11.7 SI Amit Kumar (PW7) is the seizing officer. He
received the secret information on 20.09.2012 at 10:10pm. He was heading the raiding team of officials of PS Govind Puri. He has deposed about the recovery of smack; weighment of smack; taking of sample; preparing of FSL form and preparation of rukka. PW7 handed over three sealed parcels, seizure memo and FSL form. PW 2 deposed that rukka (Ex. PW7/B) was sent through Ct. Udai Chand (PW9) for registration of the case and after the investigation was assigned to SI Shri Krishna (PW13), who arrived at the spot, and he handed over the accused and the documents to him. He deposed that SI Shri Krishna (PW13) prepared the site plan (Ex. PW7/C) at his instance.
11.8 W/Ct. Archana (PW8) was the member of the patrolling team headed by SI Amit Bhardwaj (PW7). She has deposed that she conducted the search of the accused in the Government Gypsy and found Rs. 1060, one artificial golden colour and one bag, which accused was hanging on her left should and was of mehandi colour having strip of khaki colour. On checking the bag, one white colour transparent polythene containing some substance of SC No. 6866/2016 State vs Savita page no. 14 of26 matiyala colour tied with rubber band was found, which was identified by SI Amit Bhardwaj (PW7) as 'ganja'. She further deposed about the weighment of the substance and taking of samples, sealing of samples, preparation of rukka. She deposed that accused was arrested vide arrest memo (Ex. PW8/A). Personal search of accused was conducted vide personal search memo (Ex. PW8/B) and disclosure statement was recorded vide memo (Ex. PW8/C). 11.9 Ct. Udai Chand (PW9). He was the member of raiding team of the officials headed by SI Amit Bhardwaj (PW7). He has deposed about the apprehension of the accused, recovery of smack, possession and proceedings conducted by SI Amit Bhardwaj at the spot. PW9 had taken the rukka alongwith three parcels, FSL form and carbon copy of seizure memo to the Police Station with direction to hand over the parcels and document to Inspector Manoj Pant, SHO and rukka to Duty officer and reached back at the spot alongwith SI Shri Krishna (PW13).
11.10 Ct. Bijender Singh (PW10) was the Dairist in the office of ACP, Kalkaji on 21.09.2012 and had received the information u/s SC No. 6866/2016 State vs Savita page no. 15 of26 57 of NDPS Act. PW10 made entry in diary register at sl. no. 4314 (Ex. PW5/B).
11.11 Ct. Yogesh Tomar (PW11) was also member of the patrolling party. He had deposed about the apprehension of accused and the subsequent proceedings with regard to recovery of ganja from the possession of the accused. He deposed that seal after use was handed over to him.
11.12 SI Narender (PW12) as posted at PS Govind Puri on 13.11.2012 and further investigation of the case was handed over to him. He had recorded the statements of HC Satbir and Ct. Sewa Singh. After completion of investigation, he had prepared the charge sheet and filed the same in the Court.
11.13 SI Shri Krishna (PW13) is the Investigating Officer of the case. He has proved arrest memo (Ex. PW8/A) and personal search memo (Ex. PW8/B) of accused. He has proved the site plan (Ex. PW7/C). PW13 deposed that FSL report (Ex. PW13/B) was collected and same was placed on the record vide his application (Ex. PW13/A) (Perse admissible u/s 293 Cr. PC).
SC No. 6866/2016
State vs Savita page no. 16 of26
12. All the incriminating evidence in the statement of Prosecution Witnesses was explained to the accused separately. She stated that she was innocent and has been falsely implicated by the Police officials of PS Govind Puri. She stated that at about 09:00/09:15 pm, some Police officials came to her jhuggi at Bhumihin Camp and asked her to come out as they wanted to make some inquiry. She was taken to the Police station. She stated that no lady Police offical was with the Police officials, who had come to her jhuggi nor any lady Police officer was present in the PS, where she was taken. They asked her if she sells ganja in the area. She denied the same. Thereafter, they did not make any inquiry and got her signatures on blank papers and next day, she was produced in the Court.
13. Accused lead not to lead evidence in her defence though an opportunity was given to her.
14. I have heard arguments advanced by Sh. F. M. Ansari Ld. Addl. PP for the State and Sh. S. K. Saxena, Learned Amicus Curiae for accused and have perused the evidence and record carefully.
15. Learned Addl. PP has submitted that Prosecution has proved its case beyond reasonable doubt. It is submitted that accused has SC No. 6866/2016 State vs Savita page no. 17 of26 been apprehended on the basis of secret information and she was found in possession of 'ganja' weighing 3.5 kg. He submitted that statement of witnesses examined by the Prosecution has proved the case beyond reasonable doubt. There is no allegation of enmity or prejudice to witnesses against the accused.
16. Learned Addl. PP has submitted that case of the Prosecution stands proved and the statement of recovery witnesses i.e. PSI Rama Kant (PW1); W/Ct. Archana (PW8); Ct. Udai Chand (PW9) and Ct. Yogesh Tomar (PW11) provide necessary corroboration to each other. He submitted that all the statutory compliances have been made and there is nothing on record to suspect or doubt the statement of Prosecution witnesses with regard to the recovery of contraband substance from the possession of the accused.
17. Learned Addl. PP submitted that the case property had been sealed on the spot and it was deposited with MHC(M) and thereafter, it was sent to FSL, Rohini and as per the report, the samples contained 'ganja'. He submitted that link evidence has been established and there is nothing to suggest that there was tampering in the seal of the samples. He also submitted that defence taken by SC No. 6866/2016 State vs Savita page no. 18 of26 the accused that she has been falsely implicated at the instance of Police officials is an after thought and has not been established by her, though an opportunity to lead evidence was given to her.
18. Learned counsel for accused has argued that Prosecution has failed to establish beyond reasonable doubt that there was no tampering with the case property and samples till the samples reached for chemical examination in the present case. This link evidence is found missing in the sense that oral statement of witnesses is contrary to what the record say. As per the Prosecution case, SI Amit Bhardwaj (PW7) had affixed seal of 'AB' on the sample pullandas, case property and copy of seizure memo was sent to PS Govind Puri thorugh Ct. Udai Chand (PW9) where Inspector Manoj Pant (PW2) had put his seal on the sample pullandas and the case property. Inspector Manoj Pant (PW2) and Ct. Udai Chand (PW7) have deposed to this effect in the Court. Inspector Manoj Pant (PW2) deposed that he handed over the sealed pullandas to HC Shiv Singh (PW6), who was the MHC (M) and MHC (M) had made entry in the register of malkhana i.e. register no. 19. The relevant extract of register no. 19 was placed on record which is Ex. PW6/A. Perusal of SC No. 6866/2016 State vs Savita page no. 19 of26 entry made at sl. no. 1230 in register no. 19 reveals that it is a verbatim copy of the contents of the seizure memo. It does not say that FSL form was also deposited with MHC (M) and there is no endorsement in the register no. 19 that FSL form was also sent alongwith sample pullandas. Interestingly, it no where says that the sample which were deposited were having the seal of 'MP' i.e. SHO, Inspector Manoj Pant (PW2). Sample parcels were sent to FSL, Rohini through Ct. Sewa Singh (PW4) with the Road Certificate (Ex. PW6/B). Perusal of Road Certificate (Ex. PW6/B) shows that sample which was sent to FSL, Rohini was having seal of 'AB'. It does not say that seal of 'MP' by Inspector Manoj Pant was also affixed on the sample. Road Certificate is also silent about sending of FSL form with the sample. Ct. Sewa Singh (PW4) has also deposed that on 14.11.2012, he was posted as Ct. at PS Govind Puri and on that day, the MHC (M) had handed over to him sealed parcel sealed with the seal of 'AB'. PW4 does not say that the sample parcel was having the seal of 'MP' as well. Acknowledgement (Ex. PW4/A) issued by FSL, Rohini on receipt of the sample parcel is silent of FSL form alongwith sample and it also does not specify the seal, which was SC No. 6866/2016 State vs Savita page no. 20 of26 found affixed on the sample.
19. Although, FSL report (Ex. PW13/B) mentions about seal of 'AB' and seal of 'MP'. However, in the absence of evidence that the samples which were sent to FSL, Rohini were having the seals of 'AB' and 'MP', it becomes doubtful whether the sample which is mentioned in the FSL report (Ex. PW13/B) is the same which has been taken by Ct. Sewa Singh (PW4) to the FSL, Rohini and it was deposited with MHC (M) by Inspector Manoj Pant (PW2).
20. Another fact which makes the Prosecution case doubtful is with regard to FSL report (Ex. PW13/B). The substance of the sample has been mentioned as "greenish brown colour flowering and fruiting vegetative material". SI Rama Kant (PW1), who was in the raiding team formed by SI Amit Bhardwaj (PW7), in his statement has deposed that the bag carried by the accused when checked, SI Amit Bhardwaj (PW7) had a smell of 'ganja' and on opening the same, some matiyala colour i.e. like earth/greenish colour substance was found inside which was in dry form. The description of the substance given by SI Rama Kant (PW1) does not tally with the description given in the FSL report (Ex. PW13/B).
SC No. 6866/2016
State vs Savita page no. 21 of26
21. The statement of witnesses examined by the Prosecution is also not found consistent and coherent, which makes the Prosecution case further doubtful. Inspector Manoj Pant (PW2) has deposed that the team formed by SI Amit Bhardwaj (PW7) had left the PS at 10:50pm. DD no. 41A dated 20.09.2012 (Ex. PW2/A) shows that the information was received at 10:50pm. The departure entry DD No. 45A dated 20.09.2012 (Ex. PW7/A) shows that the team had left the Police Station at 11:55pm. Thus, the documentary evidence in the form of DD No. 45A dated 20.09.2012 (Ex. PW7/A) is contrary to what the Inspector Manoj Pant (PW2) has deposed about the departure of the team.
22. SI Amit Bhardwaj (PW7) in his examinationinchief had stated that after using the seal of 'AB' on the pullandas prepared on the spot, he handed over the seal to Ct. Udai Chand (PW9). When he was questioned about the seal as to when he received it back, he was unable to answer from whom he received the seal and then stated that he received the seal back from malkhana. Meaning thereby, the seal was deposited in the malkhana by the officer, who was handed over the seal after use.
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State vs Savita page no. 22 of26
23. SI Amit Bhardwaj (PW7) deposed that seal after use was handed over to Ct. Yogesh Tomar, who appeared as PW11 and also endorsed the statement of Ct. Udai Chand (PW9). However, Ct. Yogesh Tomar (PW11) has nowhere stated that he had deposited the seal with MHC (M) at malkhana. Similarly, HC Shiv Singh , MHC (M) (PW6) has also nowhere stated that the seal of SI Amit Bhardwaj was deposited with him and he had returned the seal to SI Amit Bhardwaj.
24. Another glaring improbability in the present case is noticed in the statements of SI Rama Kant (PW1) and SI Amit Bhardwaj (PW
7). As per statements of SI Rama Kant (PW1) and SI Amit Bhardwaj (PW7), the accused was pointed out by the secret informer to them and thereafter, he left. Accused came and stood at a distance of 34 meter from them for about 510 minutes. SI Rama Katn (PW1) has deposed in his statement he and SI Amit Bhardwaj (PW7) were in "uniform". If these two officials were in uniform, then it is highly unlikely and improbable that the accused carrying contraband substance would come and stand nearby Police officials. However, SI Amit Bhardwaj (PW7) clarified that they all the team members were SC No. 6866/2016 State vs Savita page no. 23 of26 in civil dress.
25. Although in the present case, recovery has been effected from the bag which the accused was allegedly carrying and Notice u/s 50 of NDPS Act has been served upon the accused. Compliance with the provisions of Section 50 of NDPS Act was not a necessity, in view of the fact that contraband was not recovered in the personal search of the accused but from the bag which she was carrying. However, the manner in which the Notice u/s 50 of NDPS Act was served and prepared casts a doubt on the bonafide on the proceedings of the Police officials.
26. The Notice u/s 50 of NDPS Act has been placed on record which is Ex. PW1/A and the reply thereof was given by the accused as Ex. PW1/B. The accused has given a reply on the original Notice u/s 50 of NDPS Act while the carbon copy thereof was given to her, which was recovered during her personal search and this personal search article was deposited with MHC (M). Perusal of the Notice u/s 50 of NPDS Act (Ex. PW1/A) shows that it has been witnessed by four Police officials namely, PSI Rama Kant (PW1); W/Ct. Archana (PW8); Ct. Udai Chand (PW9) and Ct. Yogesh Tomar (PW11). SC No. 6866/2016
State vs Savita page no. 24 of26 They all have signed in original of Notice u/s 50 of NDPS Act. The carbon copy of the Notice is Ex. P6 and it bears carbon copy impression of the signatures of PSI Rama Kant (PW1); W/Ct. Archana (PW8) and Ct. Yogesh Tomar (PW11). However, the signatures of Ct. Yogesh Tomar (PW11) on the carbon copy of Notice (Ex. P6) appears in original. It means that Ct. Yogesh Tomar (PW11) was either not present at the spot when the Notice was prepared or the Notice was prepared subsequently. Otherwise, there is no explanation why the signatures of Ct. Yogesh Tomar (PW11) as a witness on the carbon copy of Notice u/s 50 of NPDS Act (Ex. P
6) appears in original.
27. The law is well settled that the Prosecution has to prove its case beyond all shadow of reasonable doubts. However, in the present case, because of inconsistencies in the statement of Prosecution Witnesses and the missing link in the evidence with regard to safety and security of the samples till they reached the FSL, Rohini makes the case doubtful.
28. Therefore, for the forgoing discussion, I am of the view that Prosecution has not been able to prove its case beyond reasonable SC No. 6866/2016 State vs Savita page no. 25 of26 doubt. I, therefore, hereby acquit the accused Savita of the charge under Section 21 (b) (ii) (B) of NDPS Act.
29. Accused has already furnished bail bond in terms of Section 437A Cr.P.C.
30. File be consigned to Record Room after necessary compliance.
(announced in the (Ajay Kumar Kuhar)
open Court on Special Judge (NDPS)
09th August 2016) South District: Saket
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State vs Savita page no. 26 of26