Delhi District Court
State vs Abhishek And Anr. on 28 March, 2018
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL SESSIONS JUDGE 04
PATIALA HOUSE COURTS: NEW DELHI.
CNR No. DLND010002002014
SC No. 8546/2016
FIR No. 192/2013
PS - Crime Branch
U/s 29 and 20 (b) (ii) (C ) NDPS Act
State
Vs.
1. Abhishek
S/o Sh. Rajender Singh
R/o 442, Anuyogi Puram,
Garh Road, Meerut, UP.
2. Abhimanyu
S/o Sh. Indresh Kumar
R/o 32, Shiv Sarovar, Bank Colony,
Meerut, UP.
State VS Abhishek and Anr.
FIR no. 192/2013
PS - Crime Branch Page no. 1/52
Date of Institution : 01.02.2014
Date of Arguments : 22.03.2018
Date of Judgment : 28.03.2018
JUDGMENT:
1. Brief case of the prosecution as per chargesheet is:
(a) On 11.11.2013 at about 5.00 pm a secret informer came to the office of SER Crime Branch, PSSunlight Colony, New Delhi and informed PW10 SI Ravinder Teotia that two persons namely Abhishek and Abhimanyu, who are residents of Meerut (UP) and used to supply charas in retail and wholesale would be coming at Bhairon Mandir near Pragati Maidan at about 78 pm to supply huge quantity of charas to someone and recovery could be effected if raid was conducted.
Thereafter, PW10 along with informer went to PW3 Inspector Sunil Kumar and apprised him about information. Inspector Sunil Kumar also interrogated secret informer and thereafter passed the secret information to ACP Raja Ram on telephone, who directed Inspector Sunil Kumar to take necessary action. DD no.
State VS Abhishek and Anr.
FIR no. 192/2013 PS - Crime Branch Page no. 2/5219 was also lodged to this effect. SI Ravinder Teotia, conducted proceedings u/s 42 NDPS Act and produced the same before SHO for forwarding it to ACP.
b) Thereafter, a raiding team consisting of PW10 SI Ravinder Teotia, PW2 constable Surinder Pal, PW12 constable Prempal, PW7 constable Kusumpal and informer was constituted under the supervision of PW3 Inspector Sunil Kumar. SI Ravinder Tewatia, took his IO, bag, investigation kit and weighing machine and left the office along with all members of raiding team in private maruti van. They reached the spot at about 6.00 pm, where SI Ravinder Teotia requested 67 passersby to join the raiding party but none of them agreed. SI Ravinder Teotia along with secret informer took the position near Bairon Mandir and other members of raiding party took the position in surrounding area. Thereafter, at about 7.15 pm one golden colour Hyundai i10 bearing registration number UK 8M 9642 was seen coming from the side of ring road and was parked near Bhairon Mandir. One person came out from the driver side holding a khaki colour bag in his right hand. The other State VS Abhishek and Anr.
FIR no. 192/2013 PS - Crime Branch Page no. 3/52person got down from other side holding a black colour bag in his right hand. Both persons started waiting for someone. At that time informer pointed out towards the boy who had got down from the driver side as Abhimanyu and the other person who got down from other side as Abhishek. After waiting for about 15 minutes both persons started to leave. On the signal of SI Ravinder Teotia, raiding team apprehended the accused persons. Thereafter, SI Ravinder Teotia, introduced himself and members of his raiding team and informed about the secret information to the accused persons. The accused persons disclosed their names as Abhishek and Abhimanyu. Thereafter, notice u/s 50 of NDPS Act was served upon accused persons and they were made to understand that they had a legal right to be searched before a Magistrate or a Gazetted Officer. The accused persons refused to exercise the said right and wrote their refusal in their own handwriting on the notices itself.
c) Thereafter, SI Ravinder Teotia conducted the search of black bag which was carried by accused Abhishek. The same was found containing a white colour State VS Abhishek and Anr.
FIR no. 192/2013 PS - Crime Branch Page no. 4/52panni (polythene) which was further containing a black colour substance in the form of brick/plate. There were 4 ½ bricks/plates, which on smell confirmed it to be charas and even accused Abhishek confirmed the said substance as charas. The said substance was then weighed and its weight came out to be 4 ½ kgs. Two samples of 25 gms each were taken out from the said substance and were kept in two small polythenes separately and were then converted into cloth pullandas and were given Mark A1 and A2. The remaining charas was kept in the same polythene and bag from where it was taken out and then the same was converted into pullanda and was given Mark A. All the said pullandas were sealed with the seal of RS and FSL form was filled.
d) Thereafter, SI Ravinder Teotia conducted the search of khaki colour bag which was carried by accused Abhimanyu. The same was found containing a white colour panni (polythene) which was further containing a black colour battinama (candle shaped) substance which on smelling confirmed as charas and even accused Abhimanyu confirmed the said substance as charas. The State VS Abhishek and Anr.
FIR no. 192/2013 PS - Crime Branch Page no. 5/52said substance was then weighed and its weight came out to be 3.400 kgs. Two samples of 25 gms each were taken out from the said substance and were kept in two small polythenes separately and were then converted into cloth pullandas and were given Mark B1 and B2. The remaining charas was kept in the same polythene and bag, from where it was taken out, and then the same was converted into pullanda and was given Mark B. All the said pullandas were sealed with the seal of RS and FSL form was filled.
e) Thereafter, rukka was prepared by SI Ravinder Teotia and the same was handed over to constable Prempal for registration of FIR. In addition thereto six sealed pullandas, copy of seizure memos and FSL form was also handed over to constable Prempal.
f) Thereafter, further investigation was entrusted to PW9 SI Radhey Shyam, who reached the spot at about 11.10 pm. He inspected the spot and prepared the site plan at the instance of SI Ravinder Teotia. Thereafter, they all left the spot and reached PS Crime Branch, Malviya Nagar. During investigation State VS Abhishek and Anr.
FIR no. 192/2013 PS - Crime Branch Page no. 6/52PW10 recorded supplementary statement of SI Ravinder Teotia; seized the above mentioned car; interrogated and arrested accused persons; recorded statement of witnesses; deposited the articles with MHC(M); recorded disclosure statements of both accused persons. Thereafter the sample pullandas were sent to FSL, Rohini. After receiving the positive reports from FSL with respect to the contraband, the present chargesheet was filed.
2. In view of the allegations against the accused persons in the chargesheet, charge u/s 29 and 20 (b) (ii) (C ) NDPS Act was framed against the accused persons to which they pleaded not guilty and claimed trial.
3. The prosecution in order to prove its case has examined 12 witnesses in all.
4. PW2 constable Surender Pal, PW3 Inspector Sunil Kumar, PW10 SI Ravinder Teotia and PW12 constable Prem Pal were members of the raiding team which had apprehended accused persons. All have deposed on similar lines in their examination in chief and have reiterated more or less the assertions made in the charge sheet. As per their depositions, the secret State VS Abhishek and Anr.
FIR no. 192/2013 PS - Crime Branch Page no. 7/52information received by PW10 was reduced into writing vide DD no. 19. Raiding team departed vide DD no.20. The notices issued to the accused Abhishek and Abhimanyu u/s 50 of the NDPS Act have been exhibited as Ex.PW10/A and Ex.PW10/B.
5. PW9 SI Radhey Shyam is the second investigating officer of the present case. In his examination in chief he deposed that on reaching the spot he had met PW10 SI Ravinder Teotia and other police officials, who produced before him the accused persons and documents prepared by him. He further testified that he prepared the site plan at the instance of PW10 SI Ravinder Teotia. Accused persons were formally arrested by him. Both the accused persons were again thoroughly interrogated. He recorded the statements of witnesses; deposited the articles with MHC(M) and recorded disclosure statements of both accused persons.
6. PW1 HC Jag Narain, was working as MHC(M) during the relevant time. He testified that on 12.11.2013 SHO PS Crime Branch, Inspector Virender Singh called him in his office at 01.15 am along with register no. 19.
State VS Abhishek and Anr.
FIR no. 192/2013 PS - Crime Branch Page no. 8/52Thereafter, SHO handed over him six sealed pullandas mark A1, A2, A, B1, B2 and B with the seal of RS and VSS along with two FSL forms with the aforementioned sealed and carbon copy of two seizure memos. He deposited the case property along with FSL form vide entry no. 1990 Ex.PW1/A. He further testified that on the same day SI Radhey Shyam came at about 02.30 am and deposited one i10 car and the personal search articles recovered from accused persons. He deposited the said car vide entry no. 1991 Ex.PW1/B.
7. PW1 further testified that on 18.11.2013 two pullandas Mark A1 and B1 sealed with the seals of RS and VSS along with FSL forms were handed over to constable Surender Pal on the instructions of SHO vide RC no. 363/21 Ex.PW1/E for depositing the same in FSL, Rohini. He proved the entry in this regard as Ex.PW1/C. He further testified that on 10.01.2014 constable Kusum Pal deposited two parcels sealed with the seal of FSL, Rohini in the malkhana. He proved the entry in this regard as Ex.PW1/D.
8. PW4 ASI Gopal Singh was working as duty officer State VS Abhishek and Anr.
FIR no. 192/2013 PS - Crime Branch Page no. 9/52during the relevant time. He testified that on 12.11.2013, he received a rukka from constable Prem Pal which was sent by SI Ravinder Teotia and on the basis of said rukka he got recorded FIR no. 192/13 Ex.PW4/A. He proved his endorsement on the original rukka as Ex.PW4/B.
9. PW5 HC Aas Mohd., was working as Reader in ACP office SER Crime Branch at the relevant time. He testified that on 11.11.2013, DD no. 19 Ex.PW5/A regarding secret information made by SI Ravinder Teotia was received in the office of ACP SER Crime Branch. The same was put up before ACP Sh. Raja Ram Yadav, who put his initials on it. He further testified that on 12.11.2013, a special report u/s 57 NDPS Act Ex.PW5/B regarding seizure of charas was received by office of ACP vide diary no. 1327. The same was prepared by SI Ravinder Teotia and was forwarded by Inspector Sunil Kumar. He proved the entry regarding the same as Ex.PW5/C. He also proved the report u/s 57 NDPS Act regarding arrest of accused persons as Ex.PW5/D and entry made at Sl. no. 1330 as Ex.PW5/E.
10. PW6 Sh. Manish Chand Naudiyal, Administrative State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 10/52 Officer, RTO Haridwar, brought the record regarding vehicle no. UK 08M 9642 make i10. He testified that as per records the said vehicle was registered in the name of Indresh Kumar S/o Sh. Dharam Singh Tyagi. He proved the said record as Ex.PW6/A.
11. PW7 constable Kusum Pal, testified that on 10.01.2014, on the instructions of IO he went to FSL Rohini for obtaining the seal of FSL. He obtained one result with impression of sample seal, and two sealed parcels duly sealed with the seal of KG FSL Delhi. Thereafter, he handed over the sealed parcels and impression seal to MHC(M) Jagnarain and the result was handed over to IO in the office of Crime Branch. He further testified that till the time case property remained in his possession, the same was not tampered with.
12. PW8 ACP Raja Ram Yadav, was working as ACP Crime Branch on 11.11.2013 and had deposed about the secret information regarding supplying of charas which was given to him on telephone by IO Ravinder Teotia. He directed the IO to act accordingly. He further testified that DD no. 19 was produced before him by his Reader.
State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 11/52 Report u/s 57 NDPS Act regarding seizure of charas and arrest of accused persons were also produced before him.
13. PW11 Inspector Virender Singh, testified that on 12.11.2013, he was posted as SHO PS Crime Branch, Malviya Nagar. On that day at about 12.30 am constable Prem Pal came at PS and produced before him 06 sealed parcels bearing mark A, A1, A2, B, B1 and B2 duly sealed with the seal of RS along with two FSL forms and two carbon copies of seizure memo. Constable Prem Pal informed him that the said contrabands and documents were sent by SI Ravinder Teotia. Thereafter, after checking all the parcels he put his seal of VSS on all the parcels and both FSL forms. He also put FIR number on all the documents and pullandas. Thereafter, he called MHC(M) HC Jagnarain in his office along with register no. 19 and handed over all documents and sealed parcles to MHC(M). He also lodged DD no. 3 Ex.PW11/A to this effect. He further testified that on the same night about 02.30 am, SI Radhey Shyam produced before him two accused persons namely Abhishek and Abhimanyu.
14. Crossexamination of all the witnesses shall be State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 12/52 discussed at the time of appreciation of evidence.
15. The entire incriminating evidence was put to both accused persons at the time of recording of their statement u/s 313 Cr.PC which was denied by them.
16. Accused Abhishek stated that he was innocent and has been falsely implicated in the present case. His friend Sumit had called him on the day of incidence around 23 pm and had requested him to come to PSSunlight Colony as he claimed that his car was seized by the police due to some accident. At that time his friend Abhimanyu was with him and they both went to PSSunlight Colony. He asked Abhimanyu to park the car in the parking of adjacent Jeeven Hospital and he went inside the PS. There he saw his friend Sumit sitting along with two other persons namely Rinku and Amit. There he met SI Ravinder Teotia, who asked him whether he was friend of the above said persons. He told him that he knew Sumit only but not the other two. He was informed that these persons were involved in drug trafficking and he was one of their gang member. He further stated that he was asked as to how he had come there, to which he replied State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 13/52 that he had come with this friend Abhimanyu, who was waiting at the parking at Jeevan Hospital. His mobile phones were taken and he was made to sit in a room along with the above said three persons. Abhimanyu was also brought there. After sometime, in the evening some friends/relatives of Sumit Amit and Rinku came to the PS and assured them to get them released and they went out to talk to the police persons to negotiate their release. Thereafter, around 7.308.00 pm Sumit, Amit and Rinku were allowed to go with their relatives and they were arrested in their place. They were not even allowed to inform anyone about their apprehension. They were made to sign on number of papers. They never went to Bhairo Temple. They were inside the PS since 44.30 pm onwards on that day. Charas has been planted on them and they have been falsely implicated.
17. Accused Abhimanyu has also deposed on the lines of accused Abhishek.
18. Accused persons chose to lead evidence in defence.
19. DW1 Sh.Pawan Singh is the Nodal Officer, Idea Cellular Ltd., who brought the call detail records of State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 14/52 telephone number 9911444605 belonging to PW2 constable Surenderpal and 8802808040 belonging to accused Abhishek along with their respective CDRs and CAF. He proved the certificate u/s 65B Indian Evidence Act as Ex.DW1/A, CDR of telephone number 9911444605 as Ex.DW1/B, CDR of telephone number 8802808040 as Ex.DW1/C, CAF form and photo ID proof of Surender Pal of telephone number 9911444605 as Ex.DW1/D and CAF form and photo ID proof of Abhishek Kumar of telephone number 8802808040 as Ex.DW1/E. He also proved the Cell ID chart pertaining to Delhi and NCR region as Ex.DW1/F.
20. DW2 Ajay Kumar is the Nodal Officer, Bharti Airtel, who brought the call detail records of telephone number 9818291698 belonging to PW10 SI Ravinder Singh and 9871486814 belonging to PW2 Surender Pal. He proved his certificate u/s 65B Indian Evidence Act as Ex.DW2/A, CDR and CAF form and photo ID proof of telephone numbers 9818291698 and 9871486814 as Ex.DW2/B and Ex.DW2/C respectively and Ex.DW2/D and Ex.DW2/E respectively. He also proved the Cell ID State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 15/52
chart as Ex.DW2/F.
21. The court has heard arguments addressed by learned S.K. Kain learned Addl. PP for State and Sh. Rahul Tyagi, learned counsel for accused persons and has also gone through the record carefully.
22. Learned Sh. S.K. Kain, Addl. PP for State has submitted that the prosecution has proved its case against all accused persons beyond reasonable doubt. Sh. Kain has argued that though no independent public witness was joined in the investigation or recovery proceedings, however the police officials examined in the case have corroborated each other and have no enmity against either of the accused to depose against them.
23. From the arguments adduced by learned defence counsel, following points for determination emerge:
1) Constitution of raiding team falsified by evidence.
2) Spot proceedings doubtful.
3) Non compliance of mandatory provisions of NDPS Act.
4) Improper sampling.
State VS Abhishek and Anr.
FIR no. 192/2013
PS - Crime Branch Page no. 16/52
5) Missing link evidence.
6) Unfair/shoddy investigation.
7) NonJoining of public witnesses.
8) Non identification of accused persons by
material witness.
9) Defence witnesses and electronic evidence.
CONSTITUTION OF RAIDING TEAM
FALSIFIED BY EVIDENCE:
24. As per DD no. 20 dated 11.11.2013, regarding departure of raiding team from Crime Branch Sunlight Colony Office, raiding team consisted of PW10 SI Ravinder Tewatia, PW2 constable Surinderpal, PW12 constable Prempal and PW7 constable Kusumpal, under the supervision of Inspector Sunil Kumar. Similar stance is taken in the rukka sent by IO from the spot as well as in the FIR and in the testimony of witnesses except PW2 and PW7.
25. PW2 constable Surinderpal was also a member of raiding team but he did not state that Inspector Sunil Kumar was part of the raiding team in any capacity.
State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 17/52 There was no suggestion even on behalf of learned Addl.PP to this witness that Inspector Sunil Kumar was part of the raiding team in any capacity. There is no document signed by Inspector Sunil Kumar on the spot.
26. Another member of raiding team is constable Kusumpal, who was examined as PW7. In his testimony he deposed his role confined to visit FSL Rohini for obtaining two sealed parcels from there. He did not state himself to be part of any raiding team. In his cross examination he stated that he was working with Inspector Sunil Kumar, for the last about 05 years but did not state that he ever joined any other investigation in this case, except receiving sample pullanda from FSL Rohini. He stated that he did not even felt bad that despite being in the team of Inspector Sunil Kumar for the last about 05 years, he was not made member of raiding team in the present case. He also stated his memory is alright and it was wrong that he was not made a member of the raiding team because he had weak memory. No crossexamination of this witness was conducted by learned Addl. PP, hence it is rightly State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 18/52 submitted by learned defence counsel that the statement of this witness would be accepted at its face value against the prosecution. Learned Sh. Tyagi, has relied upon the judgment in the case of Mukhtiar Ahmed Ansari Vs State Manu, SC 0309/2005 wherein it was held :
34. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel has been examined as a prosecution witness in this case as PW1. He, however, did not support the prosecution. The prosecution never declared PW1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence."
27. Similarly, the version of PW2, who did not name PW3 Inspector Sunil Kumar as member of the raiding team remained unrebutted and even this witness was not suggested by the State that Inspector Sunil Kumar was also the member of raiding team.
28. Moreover, the possibility of PW2 constable State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 19/52 Surinderpal, being a member of raiding team is falsified by the electronic evidence i.e. call detail records (CDR) of this witness regarding phone number 9911444605. This phone number was provided by the witness himself in his crossexamination. This witness categorically admitted that he was carrying both his numbers on the date of incident at the spot. As per the CDR Ex.DW1/B of this number read with the location chart Ex.DW1/F, PW2 constable Surinderpal was at Munirka at 17:17:06 hours on 11.11.2013. As per prosecution story the secret information was received at Sunlight Colony office of SER, Crime Branch at 05.00 pm. Raiding team was constituted thereafter. Raiding team left the office of Sunlight Colony at around 5.30 pm vide DD no.20. Meanwhile the constitution and briefing of the raiding team had already taken place. If PW2 constable Surinderpal was at or near about Munirka at 17:17:06 hours on 11.11.2013. Hence, it is impossible for him to reach at Sunlight Colony, be part of raiding team and again depart to Bhairo Mandir within a span of 13 minutes at 05.30 pm. State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 20/52
29. Moreover, the intimation of secret information was written vide DD no.19 at 5.00 pm. The next DD entry i.e. DD no. 20 was made at 5.30 pm for departure of the raiding team. There is no arrival entry in between to prove the arrival of PW2 in the office at Sunlight Colony. Hence, even this witness seems to be not a part of raiding team.
30. Apart from this the deposition of witnesses reflects that there was no team work on the spot. As per prosecution story the raiding team consisted of PW10 SI Ravinder Tewatia, PW2 , PW3, PW7 and PW12. PW2 stated that he did not assist the IO in making the pullandas or other work at the spot. PW3 Inspector Sunil Kumar also stated "There was no actual physical help or act done by me in the entire proceedings at the spot, I did not even signed the pullandas at any point of time."
31. As already discussed, PW7 even denied being part of the raiding team. PW12 stated that accused persons were in the custody of himself, PW7 and PW2 while sampling and sealing proceedings were being carried out.
State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 21/52 If it was so there was nobody to help PW10 SI Ravinder Tewatia in the sampling and sealing procedure. Except IO, each raiding team member has deposed that it were other members, who were helping the IO in seizing/sampling/sealing. If their deposition is taken on face value, no member is left for assistance of IO in sampling/seizing. Apart from this if PW2 constable Surinderpal, who was at Munirka at 17:17:06 hours and PW7 who specifically stated that he was not a part of raiding team, are taken out only three police officials are left in the raiding team i.e. PW10, PW3 and PW12. PW3 categorically stated that he did not do any actual physical act or help at the spot regarding apprehension, arrest or custody of accused or regarding sealing, sampling or seizure. Hence, there are only two police official left at the spot doing some work i.e. PW10 and PW12. If PW10 is doing sampling/sealing, there is only one official left to keep custody of 02 young healthy accused persons.
32. Hence, it appears to be rightly submitted by learned defence counsel that entire story of prosecution about State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 22/52 constitution of raiding team is falsified from the evidence brought on record.
SPOT PROCEEDINGS DOUBTFUL:
33. All witnesses who were allegedly members of raiding team except PW7 constable Kusumpal stated that the notices u/s 50 NDPS Act were issued and served by first IO PW10 SI Ravinder Tewatia upon both the accused persons. Even in his examination in chief PW10 stated so but during his crossexamination he stated "I had written only one of the notices u/s 50 in my hand given to the accused persons. I cannot without looking at the said notices tell whether I had prepared the notice of accused Abhishek or Abhimanyu in my own handwriting. After the said notices have been shown the witness states that he had prepared the notice Ex.PW10/A in his own handwriting. The notice Ex.PW10/B was written by another member of the raiding team but I do not recall who has written the notice Ex.PW10/B. I cannot recognize the handwriting." This deposition not only creates doubt about the service of notice u/s 50 NDPS Act State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 23/52 but further clouds the entire spot proceedings and falsifies the statement of all other witnesses qua the proceedings at the spot. The witness was caught in cross examination because the two notices u/s 50 NDPS Act being Ex.PW10/A and Ex.PW10/B were in different handwritings. The witness was not even aware in whose handwriting Ex.PW10/B was written. None of the other alleged raiding team member has stated that either of them had prepared/served the notice u/s 50 NDPS upon either of accused. Hence, it appears to be rightly submitted by counsel for defence that no spot proceedings were done by the police.
34. Apart from this the supervisory officer PW3 Inspector Sunil Kumar could not point out the position of any raiding team member in the site plan proved on record. He was even unable to point out his own position at the spot. No scaled site plan was prepared. PW3 admitted "It is correct that whenever the site plan is not scaled it is difficult to point out the position. It is correct that I was the supervising officer at the spot and I did not tell them to make a scaled site plan. Vol. Only a State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 24/52 draftsman can do so. It is correct that I did not call for any such draftsman at the spot though there are many police officials who work as draftsman." He was asked a question about his role as supervisory officer, he stated "The procedure adopted and followed by IO present at the spot were supervised by me and other aspects of the raid were also supervised by me. I cannot explain anything further in this regard." As per DD no. 24 dated 11.11.2013, PW3 called PW9 i.e. second IO SI Radhey Shyam regarding handing over further investigation to him but PW3 stated "I do not remember who had made the phone call to call SI Radhey Shyam. I even do not know whether I had made the call." The witness admitted that he was issued official mobile phone by government.
35. Similarly, the prosecution failed to prove as to how the case particulars including the FIR number were intimated to PW9 SI Radhey Shyam. PW2 categorically stated that PW9 SI Radhey Shyam had called PW12 constable Prempal from his mobile phone (Radhey Shyam's mobile phone) to find out FIR number in the case but PW9 stated "I did not carry my mobile phone to State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 25/52 the spot as the battery had got discharged and I had kept it on charging in the office." He further stated "I do not remember whose phone was used to call constable Prempal to find out the FIR number. I also do not remember who had called him." He did not disclose his mobile numbers. It appears that after examination of PW2 and calling of his CDR by learned predecessor court, other prosecution witnesses started denying the use of mobile phones by them. There is no witness, who has stated that he called constable Prempal to find out FIR number of the case for writing the same on seizure memo, personal search memo, arrest memo etc. This further creates doubt on the spot proceedings.
36. Apart from this there is no explanation why the raiding team under the charge of PW3 Inspector Sunil Kumar has used private vehicles instead of government vehicles for conduct of raid. It is important to mention her that in the crossexamination the members were unable to tell number of the vehicle used and how the same was arranged. None of the members could tell to whom the vehicle in which the raiding team reached at State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 26/52 the spot, was belonging. It is a matter of common knowledge that log book is kept in the government offices for keeping a record of the use of government vehicles.
37. In the case of Ram Prakash Vs State (Supra), Hon'ble Delhi High Court while appreciating the evidence, opined that the production of log book joined in the investigation will go long way to prove or disprove a criminal case and observed as under: "24. It is also in the above context with the failure to produce the log book for the movement of the vehicle of the raiding party and the failure to examine the driver Rajesh assumes significance. There should have been no difficulty at all in producing such evidence if needed the raiding party moved to the spot from their office in a government vehicle driven by Constable Rajesh Kumar."
38. In the present case without any justification or explanation the government vehicle was not used by the raiding team members and even the use of any private vehicle is under serious shadow of doubt which in turn creates doubt in the entire spot proceedings.
State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 27/52 NON COMPLIANCE OF MANDATORY PROVISIONS OF NDPS ACT:
39. As per prosecution story the secret information was received at Sunlight Colony office on 11.11.2013 at about 5.00 pm. The raiding party left the office at about 5.30 pm. If the time of sunrise and sunset on 11.11.2013 is checked, the sun rose at New Delhi at 6.41 am and set at 5.29 pm. The average time of sunset in the month of November at New Delhi is about 5.30 pm. Hence, by the time the raiding team was leaving office at Sunlight Colony, it was the time of sunset. The secret information of drugs was for about 78 pm. Hence, the police officials were already knowing that the recovery and arrest, if any in this case, may be made only after sunset.
40. As per section 42 NDPS Act, the arrest of any person after sunset, can be made only by an officer empowered u/s 41 NDPS Act or an officer specially authorized by such officer. U/s 41 NDPS Act the powers for arrest, search and seizure are vested in a Magistrate or an empowered gazetted officer only.
State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 28/52
41. In this case only gazetted officer connected in any way is PW8 ACP Raja Ram Yadav. None of the witnesses including PW8 stated that any authorization for search or for arrest of accused persons was taken from or given by him. There is no document to reflect that he ever authorized any officer to arrest either of accused. In the facts and circumstances, the arrest of accused persons after sunset without any authorization u/s 41 NDPS Act vitiates entire proceedings.
42. In the case of Directorate of Revenue Intelligence Vs Manjinder Singh Crl. L.P. 310 of 2013 dated 23.01.2014, Hon'ble High Court of Delhi upheld the decision of learned trial court. Learned trial court in that case had held that sections 41 and 42 of NDPS Act were not complied with since the Investigating Officer (IO) did not possess a valid authorization to effect the seizure. The authorization was given in favour of one officer but the seizure of the case was effected by another in whose favour there was no authorization, though the said officer who effected seizure was himself a member of raiding party.
State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 29/52
43. In the case in hand the proceedings are conducted by the officer not authorized at all. Hence, it is held that provisions of section 41 and 42 of NDPS are not complied with.
44. In the case of State of Punjab Vs Balbir Singh 1994 3 SCC 299, Hon'ble Apex Court in para 25 of the judgment summarized the effect of noncompliance of section 41 and 42 as follows :
25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug of psychotropic substance then the police officer, who is not empowered should State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 30/52 inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards he should carry out the investigation with the other provisions of the NDPS Act.
(2A) Under section 41 (1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in section 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of NDPS by anyone other than such officers, the same would be illegal.
(2B) Under Section 41(2) only the empowered officer can give the authorization to his subordinate officer to carry out the arrest of a person or search as State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 31/52 mentioned therein. If there is a contravention, that would effect the prosecution case and vitiate the conviction. (2C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed for materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would effect the prosecution case and vitiate the trial. (3) under section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total noncompliance of this provision the same State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 32/52 effects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
45. In the case of State of Rajasthan Vs Jagraj Singh Alias Hansa, (2016) 11 SCC 687, Hon'ble Apex Court has held that compliance of section 42 NDPS Act is mandatory and accused would be seriously prejudiced if the said provision is not complied and would be entitled for acquittal.
46. Apart from this the compliance of section 57 NDPS Act is also doubtful. Though in his examination in chief PW10 SI Ravinder Tewatia stated "After returning from the spot I reached office of SER/Crime Branch where I prepared a report u/s 57 NDPS Act." But in the opening line of his crossexamination he stated "I left the spot at about 12.30 am on 12.11.2013 and thereafter I went to my house. I had gone in an auto. The second IO had asked me to leave the spot as my role was finished." Hence, the compliance of section 57 NDPS Act is also under shadow of doubt.
State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 33/52
IMPROPER SAMPLING:
47. PW2 in his crossexamination stated that the police officials did not count how many sticks of charas were taken from the possession of accused Abhimanyu and two samples of 25 gms each were taken out of 3.4 kg of battinuma charas recovered from him and about 23 sticks were used to make samples. He also stated that remaining sticks were left intact. Similarly, for the charas recovered from accused Abhishek, he stated that samples of 25 gms each were taken from the half brick only out of 4 ½ bricks recovered from Abhishek. It is rightly submitted by learned Sh.Rahul Tyagi, that the procedure for sampling adopted by the IO was not proper. There is no mention in the rukka or in the FIR that the samples were taken from each stick or from the each brick. In the facts and circumstances, when the samples were taken only from 23 sticks in possession of accused Abhimanyu and remaining sticks were left intact and the samples in case of accused Abhimanyu were taken from half brick only, the possibility that the remaining sticks State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 34/52 or bricks were not containing contraband, cannot be ruled out.
48. The process of taking samples from the contraband, after mixing all the packets is unapproved and is against the settled procedure of taking sample as has been held by the Hon'ble High Court of Delhi in Basant Rai Vs State 2012 (3) JCC (Narcotics) 138 , wherein Hon'ble High Court acquitted the accused in appeal observing as follows: After hearing both the learned counsel for parties and going through the Trial Court Record, I find force in the submission of learned counsel for appellant.
Admittedly, the samples were drawn after breaking small pieces from 08 of the polythene bags which were allegedly kept in a green coloured bag by the appellant in his right hand. The IO prepared two samples of 25 grams each after taking a small quantity from each of the slabs.
Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination.
State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 35/52 Otherwise, result thereon, may be doubted.
For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative.
In view of above discussion, instant appeal is allowed.
49. In this case samples were taken from only a small portion of case property.
MISSING LINK EVIDENCE:
50. a) Custody of seal : As per testimony of first IO PW10 SI Ravinder Tewatia after sealing the case property and samples, the seal was handed over to PW2 State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 36/52 constable Surinderpal. However, in the testimony of PW 2 there is no mention that the IO had handed over any seal to him. The fact of receipt of seal to PW2 was not even put by the learned Addl. PP to the witness. Hence, the court cannot presume that the seal was not kept by the IO with him or was handed over to PW2. Second IO PW9 in his testimony also stated that he did not remember if constable Surinderpal had told him in his 161 Cr.PC statement that seal was handed over to him after use. In such circumstances, it is rightly submitted by learned defence counsel that prosecution has failed to prove in whose custody the seal was till the sending of samples to FSL.
51. In the case of Emma Charlotte Eve Vs Narcotic Control Bureau, 2000 V AD (Delhi) 65, wherein it was held :
29. It is well settled that till the case property has not been dispatched to the CFSL or CRCL, the seal should not be available to the prosecuting agency but it should be given to an independent witness and in the absence of such safeguard, the possibility of the seal being tampered with State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 37/52 and the substance being changed and the containers being resealed cannot be ruled out.
52. b) FSL forms not proved : As per prosecution case six pullandas were prepared and sealed and two FSL forms were filled containing same seal during the raid. However, neither the said FSL forms are proved by any of the prosecution witness nor the same are shown as received in FSL report Ex.PX. In the FSL report in the column of "Articles received" only two sealed cloth parcels are shown. There is no other article or form mentioned in column no. 6 of "Articles received". In the facts and circumstances the court cannot presume that the FSL forms were available with the forensic science laboratory to compare the seals on the sample pullandas with the sample seal on FSL form. Hence, the integrity of samples and seal is not proved beyond reasonable doubt.
53. In the case of State of Rajasthan Vs Gurmail Singh, SC 0151/2015, it was held :
3. We have perused the judgment of the High Court. Apart from other reasons State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 38/52 recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottled. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.
54. In the case of Ramji Singh Vs State, DE 0010/2000, it was held:
6. Thus, in the entry (Ex.PW2/A) proved from the Malkhana Register, there is no mention that either the CFSL form has been deposited or the same has been sent to the Chemical Examiner along with the sample. It was incumbent upon the prosecution to prove that not only the State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 39/52 contraband articles were duly sealed and deposited in Malkhana untempered but it was also necessary to prove that the samples which had been duly sealed remained intact till they reached the office of the Chemical Examiner. In the instant case, the entry (Ex.PW2/A) does not show that the CFSL form, which was allegedly filled in at the time of taking of the samples, was deposited in the Malkhana and it was sent in the same condition to the office of the Chemical Examiner. One does not know as to where the said CFSL forms remained during the said period. In Amarjit Singh and Anr. Vs State 1995 JCC 91, the prosecution has failed to prove as to where the CFSL form containing the specimen seals had remained till the contraband was examined by the Chemical Examiner and a Divisional Bench of this Court, keeping in view the particular piece of evidence and the other evidence adduced by the prosecution, came to the conclusion that perhaps the samples sent to the Chemical Examiner did not remain untampered. Thus, in the present case, benefit arising out of the circumstances mentioned above, must necessarily go to the appellant.
UNFAIR/SHODDY INVESTIGATION: State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 40/52
55. a) Missing telephone of accused : PW12 constable Prempal in his crossexamination stated "I do not remember who had taken the mobile phones recovered from the accused persons at the spot."
56. In defence evidence accused persons called the Nodal Officers from the cellular companies to prove location of the telephone number 8802808040 belonging to accused Abhishek and telephone number 9911444605 and 9871486814 belonging to PW2 constable Surinderpal. In the crossexamination of DW1 learned Addl. PP put a suggestion to the witness that the location of the telephone number 8802808040 belonging to accused Abhishek was pertaining to NSCI Pragati Maidan at 19:40:03 hours on 11.11.2013. The important question before the court is about the missing telephone of accused Abhishek. If the phone number 8802808040, which was issued in the name of accused Abhishek was operative in Pragati Maidan area on 19:40:03 hours, who was operating the same, because as per prosecution story by that time the accused was already apprehended with charas. None of the official has stated that accused State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 41/52 Abhishek used his mobile phone after his apprehension or he was asked to do so or any other police official had done so. The next important question is where that phone went missing. In their examinations accused persons have stated that their mobile phones were kept by the police officials in the crime branch office at Sunlight Colony, at around 4.00 - 4.30 pm itself. As per CDR of accused Abhishek at 16:19:54 hours the phone was in the area around and abutting the crime branch office at Sunlight colony. The next recorded call is for 08 seconds at 19:37:01 hours and thereafter for 00 seconds at 19:40:03 hours from Pragati Maidan area. Missing mobile phone of accused, when the prosecution had some information about delivery of drugs by accused, creates a serious doubt about the bonafides of the investigators. The mobile phones could have contained the valuable data including the contact list which might have included the suppliers or recipients of the drugs. If accused came to deliver drugs they might have been in contact of their suppliers/recipients. In the facts and circumstances, the court is of the opinion that the IOs intended to hide State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 42/52 material facts from the court.
57. b) No search of vehicle of accused persons: PW10 categorically admitted in his crossexamination "I did not search the car because I did not think it necessary." It is strange that PW10 had secret information that accused persons are indulged in wholesale and retail supply of charas in Delhi and are coming to deliver charas to someone, despite this IO did not feel it necessary to search the car. Even the seasoned Inspector PW3 Sunil Kumar, who was supervising the proceedings, did not think of advising the IO to search the car of accused persons. In such circumstances, it appears to be rightly submitted by learned defence counsel that no supervision was conducted by PW3 because no raid as alleged, took place. This is more so when PW3 in his crossexamination categorically admitted that he did not do any act at the spot.
NONJOINING OF PUBLIC WITNESSES:
58. It is the case of prosecution that 6 to 7 people were requested to be the panch witnesses, however all of them State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 43/52 gave excuses and left without disclosing their identifies. Also when the accused persons were apprehended, 5 to 6 people had gathered and were requested to join investigation. However, all of them gave excuses and left without disclosing their identity.
59. In the crossexamination PW2 constable Surinderpal deposed that he could not tell even one excuse given by the passersby who were asked to be the panch witnesses. IO PW10 also did not make any effort to call any person from Bhairon Mandir, guards from Pragati Maidan or traffic police officials from traffic police office in front of Bhairon Mandir. It is admitted by PW3 that Mandir was open yet no one was called from the Mandir to be a witness. Further, no name of the passersby who refused to be a witness was recorded in the present case. IO did not give them any notice or initiated any proceedings against them.
60. In the case of Mohd. Masoom Vs State of NCT of Delhi, Crl. A. 1404/2011, Hon'ble High Court of Delhi quoted the observations of Hon'ble High Court in the case of Ram Prakash Vs State 2014 (146) DRJ 629, as State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 44/52
follows :
"... 16. Mr. Gaur pointed out that
while the Appellant was apprehended around 3.30 pm, the formal arrest was recorded at 11 pm i.e. after eight hours. Throughout this period the police remained present at the spot and yet they could not get a single public witness to be associated.
17. This is perhaps the weakest line in the entire case of the prosecution. In his evidence PW9 stated that "he requested 5 6 public persons to join the proceedings but they did not join the investigation." It is not clear who those public persons were. Their names were not noted. In his cross examination PW9 stated "People who were managing the parking were present in the parking. I did not call any person from the parking, any employee of the Railway and the police officials deployed there to join the proceedings."
18. It seems extraordinary that although PW9 and the entire raiding party remaining at the spot i.e. the parking lot of Old Delhi railway Station, well be beyond 11.15 pm, i.e. nearly eight hours (they ultimately left the spot at 11.45 pm to reach the Crime Branch at 12.30 am) they were unable to locate a State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 45/52 single public witness including any railway official or any personnel of any other security force to be associated in the proceedings.
19. The trial Court has referred to the decision in Ajmer Singh Vs State of Haryana 2010 (2) RCR (Crl) 132 to hold that the failure to associate independent witness is not fatal to the prosecution case, as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision the Supreme Court emphasised that it had to be shown that after making efforts, which the Court considers in the circumstances of the case reasonable, the police officer was not able to get public witnesses to associate with either the raid or the arrest of the culprit. In other words in every case it will have to be examined whether serious efforts made by the police to associate public witnesses. In Ram Swaroop Vs State (Govt. of NCT of Delhi) (2013) 14 SCC 235 the Supreme Court found the evidence of the police witnesses "absolutely unimpeachable" and therefore held that the failure to associate independent witnesses did not affect the prosecution case. However, as will be seen hereafter, that cannot be said of the State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 46/52 prosecution witnesses in the present case.
20. In the present case as already noticed the entire raiding party remained at the Old Delhi Railway parking lot which is an extraordinarily busy area from around 3.30 pm till midnight. This is a place where apart from security personnel, there are bound to be parking attendants and railway employees as well. The IO in his crossexamination has admitted that he did not make any effort to associate any such member of the security forces (including the railway forces, parking attendants or railway employee). In other words no sincere effort was made.
21. It has almost become a routine practice for the police to state that passersby were asked to join and they declined and went away without disclosing their names. The Court should be way of readily accepting such explanations. In a case where a raid takes place in broad daylight in a busy area, a more convincing explanation has to be offered why despite remaining at the spot for about eight hours the police did not find a single public witness to join the proceedings. (emphasis supplied).
State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 47/52
61. In the case in hand also despite ample opportunity and time for the investigating agency to associate any independent witnesses, no such witness was joined which further makes the prosecution case doubtful and accused persons are entitled to benefit from the same.
NON IDENTIFICATION OF ACCUSED PERSONS BY MATERIAL WITNESS:
62. PW12 constable Prempal in his crossexamination stated that he had seen the accused persons at the spot for about four hours. He further admitted that he accompanied the accused persons to the office of Crime Branch at Sunlight Colony from PSMalviya Nagar in the same car. He further admitted that he had also accompanied the accused persons during custody remand when they were taken to Meerut. He stated that he did not remember if he had brought the accused persons for their production in the court also but in his examination in chief this witness failed to identify either of the accused persons and the witness was crossexamined by the learned Addl. PP and the learned Addl. PP had to State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 48/52 point out both the accused as persons who were apprehended from the spot. Initially on the leading suggestion of learned Addl. PP this witness stated that he could not identify the accused because he had seen the accused persons only once at the spot but in later part of his crossexamination, he admitted that he accompanied accused persons to his office in his car and also took them to Meerut in police custody remand. Such a witness not identifying the accused persons creates serious doubt about the investigation allegedly carried out by police.
DEFENCE WITNESSES AND ELECTRONIC EVIDENCE:
63. At request of accused persons CDR of accused Abhishek and raiding team members PW2 constable Surinderpal and PW10 IO Ravinder Tewatia were preserved.
64. DW1 Sh. Pawan Singh, Nodal Officer, Idea Cellular, proved location of mobile 9911444605 owned by PW2 constable Surinderpal through CDR Ex.DW1/B State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 49/52 read with location chart Ex.DW1/F. As already discussed his location at 17:17:06 hours on 11.11.2013, was at Munirka. The location of mobile phone number 8802808040 belonging to accused Abhishek at 16:12:09 hours and 16:19:54 hours was at Sarai Kale Khan and Kilokri, the localities adjacent to Sunlight Colony. Hence, it cannot be ruled out that at 44.30 pm, accused persons were in the area of Sunlight Colony. Hence, the stand taken by accused persons that at 44.30 pm they were already kept by the Crime Branch Officials in the Sunlight Colony office, cannot be ruled out. Accused had no means to positively prove their defence and only an inference can be drawn.
65. As per DW2 Ajay Kumar, the location of mobile phone number 9818291698 belonging to SI Ravinder Tewatia at 01:37:29 hours on 12.11.2013 was at Kilokri and at 01:38:22 hours and 01:38:35 hours, at Jeevan Nagar which are again adjacent localities to Sunlight Colony. This further reflects that SI Ravinder Tewatia at that time was possibly at Crime Branch office in Sunlight Colony. This falsifies his testimony that he had left the State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 50/52 spot at Bhairo Mandir to his home in an auto at around 1212.30 am on 12.11.2013.
66. Moreover, as per prosecution story PW2 along with other team members and accused persons left the spot at 01.50 am to Crime Branch police station at Malviya Nagar and reached there at 02.10 am. However, the CDR read with location chart Ex.DW2/F of another mobile number 9871486814 of PW2 constable Surinderpal, reflects that on 12.11.2013 at about 01:30:29 hours, he was at Surajmal Vihar, Delhi110092 which is a locality near Karkardooma court complex, far off from the Crime Branch Office at Malviya Nagar. Again the story of the alleged raid is belied by electronic evidence.
CONCLUSION:
67. In view of the aforementioned discussion, this court is of the opinion that both accused persons are entitled for honourable acquittal. Held accordingly. Both accused are honourably acquitted.
68. Accused persons are thus acquitted of the charges levelled against them. They be released forthwith, if State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 51/52 their custody is not required in any other case.
69. Both accused persons have already furnished their respective bonds u/s 437A Cr.PC which are accepted and shall remain effective for a period of 6 months.
70. The articles seized vide seizure memos and personal search memos of respective accused persons be released to them against acknowledgment.
71. Case property, if any, be confiscated to State and the same may be disposed off as per rules and procedures after the lapse of period of filing of appeal.
72. File be consigned to record room.
Announced in the open court on the 28th day of March, 2018 ( Ajay Pandey ) Addl. Sessions Judge 04, New Delhi District, Patiala House Courts, New Delhi State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 52/52
State Vs. Abhishek and Anr.
SC no. 8546/2016
FIR no. 192/2013
PS: Crime Branch
28.03.2018
Present: Sh. S. K. Kain, learned Addl. PP for the State.
Both accused produced from JC represented by proxy counsel Ms. Neha Gupta, for main counsel Sh.
Rahul Tyagi.
Vide separate judgment announced in the open court today, both accused are honourably acquitted of the charges levelled against them. They be released forthwith, if their custody is not required in any other case.
Both accused persons have already furnished their respective bonds u/s 437A Cr.PC which are accepted and shall remain effective for a period of 6 months. The articles seized vide seizure memos and personal search memos of respective accused persons be released to them against acknowledgment.
Case property be confiscated to State and the same may be disposed off as per rules and procedures after the lapse of period of filing of appeal.
File be consigned to record room.
State VS Abhishek and Anr.
FIR no. 192/2013PS - Crime Branch Page no. 53/52
( Ajay Pandey )
Addl. Sessions Judge 04,
New Delhi District, Patiala House
Courts, New Delhi/28.03.2018
State VS Abhishek and Anr.
FIR no. 192/2013
PS - Crime Branch Page no. 54/52