Delhi District Court
State vs . Zulfi on 26 March, 2022
IN THE COURT OF VIPLAV DABAS, CHIEF METROPOLITAN MAGISTRATE, SHAHDARA DISTRICT, KARKARDOOMA COURT, DELHI. Case No. 2015/2021 FIR No. 294/2020 PS: Shahdara U/s 27/61/85 NDPS Act State Vs. Zulfi Date of Institution of case : 23.04.2021 Date of Reserving Judgment : 26.03.2022 Date of Judgment : 26.03.2022 JUDGMENT:
a) Date of offence : 01.10.2020 b) Offence complained of : U/s 27/61/85 NDPS Act c) Name of Accused, his : Zulfi @ Ajay parentage & residence S/o. Sh. Bhagwati Prasad C/o. Najakat Ali R/o. House No. E-683, Gali No. 04, Sanjay Gandhi Marg, Chhajupur, Shahdara, Delhi. d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.1 of 17 BRIEF FACTS AND REASONS FOR THE DECISION FACTUAL MATRIX
1. In the present case, accused Zulfi @ Ajay was put to the trial for the offence punishable under Section 27, Narcotic Drugs and Psychotropic Substances Act, 1985, on the allegations that on 01.10.2020 at about 9:35 pm, at Loni Road, Near Jain Mandir Wali Gali, Shahdara, Delhi, within the jurisdiction of PS Shahdara, accused Zulfi @ Ajay was found consuming Ganjha with the help of Cigarette & thus accused committed an offence punishable u/s 27, Narcotic Drugs and Psychotropic Substances Act, 1985. After the registration of FIR and usual investigation, the charge sheet for the offence punishable U/Sec 27, Narcotic Drugs and Psychotropic Substances Act, 1985 was prepared against the accused. The aforesaid charge sheet was filed before the court on 23.04.2021, whereupon the cognizance of the offence was taken against the accused. Thereafter, the provision of section 207 Cr. P.C. was complied with.
COURT PROCEEDINGS
2. After hearing the arguments, as a prime facie case was made out against the accused, notice under Section 251 Cr.P.C for offence punishable u/s 27, Narcotic Drugs and Psychotropic Substances Act, 1985, was accordingly served upon him to which accused pleaded not guilty and claimed trial.
3. Thereafter, matter was fixed for Prosecution Evidence.
FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.2 of 17 PROSECUTION EVIDENCE
4. During the course of the trial prosecution has examined three witnesses PW-1 HC Akash, PW-2 Ct. Ashish and PW-3 HC Vikas to substantiate the accusation.
5. The case of the prosecution is that on 01.10.2020, PW-1 HC Akash along with PW-2/Ct. Ashish was on patrolling duty vide DD No. 91 marked as Mark X and when they reached at Loni Road, Near Jain Mandir Wali Gali, Delhi, they saw that a boy was smoking a cigarette behind a car. After seeing them the boy tried to hide his cigarette. HC Akash felt some smell of Ganjha and asked the accused about the same to which he replied that he was smoking Ganjha. HC Akash asked 4-5 people to join investigation but they refused to join the investigation and left the place without disclosing their name and addresses. PW-1 telephonically informed the SHO about the factum of consuming of ganjha by the accused. PW-1/HC Akash served notice under Section 50 of NDPS Ex. PW- 1/A and he was apprised that he could get himself searched in the presence of a Gazetted Officer or Magistrate but he refused stating that no Ganjha was recovered from his possession and he put his thumb impression on the aforesaid notice. The reply of accused was reduced into writing by the HC Akash. In the meantime, ACP Sh. Mukesh Tyagi came at the spot who was apprised about the whole incident by HC Akash and they searched the accused and prepared search memo Ex. PW-1/C. The cigarette was put in a polythene, which was seized in a white cloth and sealed with the seal of AK. The case property was seized vide seizure memo Ex. PW-1/D by the HC Akash. The seal after the use was handed over to Ct. Ashish by the IO. FSL Form was filled at the spot. PW-1/HC Akash prepared the rukka Ex. PW-1/E. The rukka was handed over to PW-2 Ct. Ashish for the registration of the FIR. He went to the PS Vivek Vihar and got the FIR registered.
FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.3 of 17 After sometime Ct. Ashish along with HC Vikas came on the spot along with the copy of FIR and original rukka. PW-1/HC Akash had handed over the case property and the accused to the HC Vikas. IO/HC Vikas PW-3 prepared the site plan at the instance of PW- 2/C HC Akash which is Ex.PW-3/A. IO/HC/PW-3 Vikas Singh arrested the accused and conducted his personal search vide memos Ex. PW-2/B and PW-2/C respectively. IO/HC Vikas Singh prepared report under Section 57 NDPS Act which is Ex. PW-3/B. The case property was duly identified by the witness during examination and the same is Ex. P-1. The accused was correctly identified by the witnesses during evidence.
6. In the present case, prosecution has produced and examined three witnesses who are material being the witnesses in whose presence the proceedings were conducted at the spot.
During the cross examination conducted on behalf of accused, PW-1 deposed that he left the police station at about 9:00 pm, that he along with Ct. Ashish was on his personal motorcycle, that distance between place of recovery and police is about one kilometer, that car was standing in street and the accused was sitting between the car & a wall and that he had seen him in street light. He admitted that no street light is shown/mentioned in the site plan. He deposed that no CCTV cameras were found installed at the place of recovery but he cannot tell whether any CCTV cameras were found installed on the route while going to the place of recovery. He admitted that place of arrest was densely populated area. He further deposed that he asked many passerby to join investigation but all refused and left the place without disclosing their names and addresses, that he has not asked any inhabitant to join investigation, that no shops were found nearby the place of incident, that polythene pouch was collected from a Pan shop FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.4 of 17 but he has not joined him during investigation and that he does not remember the name of Pan Shop owner and title of his shop.
He further deposed that seal after use was handed over to Ct. Ashish at the spot but he has not prepared separate handing over memo regarding seal, that Sh. Mukesh Tyagi, ACP, Shahdara, was accompanied by his driver and operator, that he does not remember the name of driver and operator and that he has not asked them to join the investigation.
The witness denied the suggestion that he has not visited the place of recovery and all the documents were prepared while sitting in Police Station, that he has not issued notice under Section 50 NDPS Act and obtained thumb impression of accused without informing him about his legal right, that he has not asked to join the investigation to any person that is why he does not issue any notice to them, that no recovery was effected from the accused and recovered article/cigarette was planted on accused in the police station and that he is deposing falsely.
During cross examination conducted on behalf of accused, PW-2/Ct. Ashish deposed that he along with HC Akash left the police station at about 9:25 pm, that they reached at the spot at about 10:00 pm and that he does not remember whether HC Akash made any departure entry before leaving the police station. He admitted that they have not checked any person on the way till the place of recovery and that place of recovery was a busy road. He further deposed that he does not know whether HC Akash asked any person to join investigation, that he does not know from where HC Akash brought the polythene pouch, that HC Akash handed over his seal to him and he returned the same when they FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.5 of 17 reached at the police station and that he does not remember the exact time when he along with HC Vikas reached on the spot.
The witness denied the suggestion that no seal was handed over to him, that no recovery was effected from the accused and recovered article was falsely planted upon him, that accused is falsely implicated in the present case as he is a vagabond, that case property was planted on accused in police station and that he is deposing falsely.
During cross examination conducted on behalf of accused, PW-3 admitted that no recovery was effected in his presence, that he police station at about 10:00 pm but he does not remember any DD entry before leaving the police station and that he does not remember exact time when HC Akash had handed over the accused to him. He admitted that there were many shops situated near the place of recovery. The witness denied the suggestion that he has arrested the accused being a vagabond, that alleged article was planted in police station and all the documents were prepared while sitting in the police station and that he is deposing falsely being a interested witness.
7. On 25.03.2022, accused admitted the genuineness of the documents i.e FIR Ex. P- 1, Entry in Register No. 19 Ex. P-2, FSL Report Ex. P-3 and RC No. 93/21/2020 regarding deposition of case property in FSL Ex. P-4, without admitting his presence at the spot with the alleged case property i.e. cigarette having ganjha. In view of the said admissions, prosecution witness qua these documents were dropped.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED/FINAL ARGUMENTS.
FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.6 of 17
8. Thereafter, Prosecution Evidence was closed as all the material witnesses were examined and statement of the accused was recorded wherein all the incriminating circumstances appearing in evidence were put to the accused who stated that nothing was recovered from his possession at the relevant time and he has been falsely implicated in the present case by the police officials by planting the case property upon him as he is a vagabond. The accused did not choose to lead defence evidence.
9. At the time of final arguments, it is submitted by Ld. Sub. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused that he has been falsely implicated in the present case which is evident from the non joinder of the public witnesses, that nothing was recovered from his possession and that the alleged recovery has been planted upon the accused at the police station as accused is a vagabond.
10. This Court heard the Ld. APP for the state as well the defence counsel.
APPRECIATION OF FACTS/CONTENTIONS/EVIDENCE AND FINDINGS:
11. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of apprehension of the accused along-with alleged cigarette having ganjha makes the prosecution version highly doubtful. Record shows that PW-1 admitted that place of arrest of accused was densely populated area. PW-1 also deposed that he asked many passerby to join investigation but all refused and left the place without disclosing their names and addresses and that he has not asked any FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.7 of 17 inhabitant to join investigation. Similarly, PW-3 admitted that there were many shops situated near the place of recovery. It is thus evident from the testimony of PW-1 and PW-3 as well as record that spot was a public place, that public persons were passing through the spot and that police officials requested public persons to join the investigation who refused, still police officials neither served any notice upon them to initiate prosecution for refusal nor recorded their names or addresses. It shows that the police officials did not make bonafide efforts to persuade the public persons to join the investigation. Record shows that no plausible explanation for not issuing the notice to the public persons has been given by the prosecution witnesses. It is apparent from the perusal of rukka that the seal after the use was handed over to PW-2/Ct. Ashish by the PW-1/IO HC Akash, who both are police officials and were posted in the same police station and not to any independent witness. PW-1 stated in his cross-examination that he has not prepared separate handing over memo regarding seal. These unexplained omissions make it highly probable that the entire proceeding were conducted at the police station, that the chances of tampering of the case property cannot be ruled out and that the alleged recovery was planted upon the accused at the police station.
Record shows that PW-1 further deposed in his cross examination that polythene pouch was collected from a Pan shop but he has not joined Pan Shopkeeper during investigation and that he does not remember the name of Pan Shop owner and title of his shop. It implies that the polythene used for keeping the cigarette was obtained from nearby Pan Shop Owner but the First IO/PW-1 neither joined him during the investigation nor he remembers the name of Pan Shop owner and title of his shop. PW-1 further deposed in his cross examination that Sh. Mukesh Tyagi, ACP, Shahdara, was accompanied by his driver and operator, that he does not remember the name of driver FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.8 of 17 and operator and that he has not asked them to join the investigation. The aforesaid testimonies of PW-1 show that the said Pan Shop owner/vendor, an independent witness and ACP Mukesh Tyagi as well as his staff could have been easily cited as witnesses but they were not joined in the investigation for the reasons best known to investigating agency. It is highly unusual on the part of the First IO/PW-1 to even forget the names of the aforesaid police persons who could have been material witnesses to establish the fairness in the recovery proceedings. No explanation has come forward during the entire trial for the aforesaid material omissions which creates grave suspicion upon the factum of recovery of the alleged contraband from the possession of the accused from the spot as the very presence of PW-1 on the spot has come under serious doubt.
12. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:-
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.9 of 17 case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
13. Considering the aforesaid observations made by the Higher Courts, the unexplained omissions / failure on the part of investigating agency to join independent FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.10 of 17 public witnesses creates reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
14. Furthermore, the testimony of PW-1 and PW-2, record and the perusal of rukka Ex. PW-1/E shows that the seizure memo of recovery cigarette filled with ganjha Ex. PW- 1/D, Notice under Section 50 NDPS Act and search memo Ex. PW-1/C were prepared prior to the dispatch of the Rukka and registration of the FIR. However, perusal of the said documents clearly shows that the FIR number and other particulars of the present case are mentioned on the said documents. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those documents which were prepared prior to the registration of the case. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to the registration of the present case, then the question of surfacing of the FIR number as well as other particulars of the present case on the said documents does not arise. These discrepancies & omissions substantiate the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused and he was not found consuming cigarette filled with ganja and that he has been falsely implicated in the present case as he is a Vagabond At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
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15. Being guided by above said case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged cigarette filled with ganjha from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
16. It is pertinent to mention here that PW-1 categorically deposed that no shops were situated nearby the spot whereas PW-3 deposed that many shops were found situated near the spot thereby contradicting the testimony of each other and making the presence of PW-1 and PW-3 together on the spot highly doubtful. Furthermore, as per the prosecution version, the alleged recovery and apprehension of accused was made at about 9:35 PM on 01.10.2020 and all the documents were also prepared on the spot i.e. Loni Road near Jain Mandir Wali Gali, Shahdara, Delhi. It shows that the proceedings took place in the night and there must have been some source of light present at the spot for conducting the proceedings. However, PW-1 admitted in his cross examination that no street light was mentioned or shown in the site plan. This testimony rules out the factum of conducting of aforesaid proceeding as well as preparation of arrest memo, recovery memo etc. on the spot as in the absence of source of light no written work could have been done. Furthermore, PW-1 stated in his cross examination that he cannot tell that any CCTV Cameras were found installed on the route while goning on the place of recovery. This failure of PW-1 to tell the aforesaid fact is highly unusual as being a police official deputed in the area he must have been aware about the installation of CCTV Cameras on the route towards place of recovery. Record further shows that PW-1 in his cross FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.12 of 17 examination deposed that he along with PW-2 left the police station at about 9:00 PM where as PW-2 deposed in his cross examination that he along with PW-1 left the police station at 9:25 PM and reached at the spot 10:00 pm. The aforesaid contradicting testimonies of PW-1 and PW-2 create grave suspicion on the presence of PW-1 and PW-2 together at the spot as there cannot be a difference of 25 minutes in leaving the police station when they both had allegedly left the police station together for patrolling on a motorcycle.
Furthermore, PW-2 deposed that he does not know whether HC Akash asked any person to join investigation, that he does not know from where HC Akash brought the polythene pouch and that he does not remember the exact time when he along with HC Vikas reached on the spot. These failures of PW-2 create grave doubt upon his very presence at the spot along with PW-1 as one cannot forget the aforesaid facts in case one had accompanied the other police official i.e. PW-1 for patrolling duty and apprehended the accused at the spot in the alleged manner. These omissions, inconsistencies and contradictions further create suspicion upon the prosecution version of consuming of cigarette filled with ganjha by the accused at the spot and substantiate the defence version of false implication of accused by planting the case property on him at the police station.
17. It is pertinent to mention that there is no material on record apart from the testimonies of PW-1 and PW-2 suggesting that accused was consuming cigarette filled with ganjha. Even medical examination for detecting presence of ganjha in the blood of accused was not carried out by the IO. This omission being material one goes to the very roots of the prosecution version and shatteres the same.
18. The manner in which the search of the accused was conducted on the spot is also FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.13 of 17 not satisfactory as the police persons had not offered their own search to the accused before taking the search of Accused which is evident from the testimonies of PWs 1 & 2 wherein it is not mentioned specifically that the said PWs offered their own search to the accused before conducting his search in compliance of the settled procedure for investigating the cases like the present one. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty Vs. State of Orissa, wherein it was held as under:
"10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching officer and other assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53:(1969 Cri L.J. 279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
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19. Being guided by above-said case law, it can be said that search of the Accused by above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal. These illegalities, omissions and discrepancies in the prosecution version create grave doubts on the recovery of alleged ganjha filled cigarette from the possession of the accused from the spot and substantiate the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
20. The prosecution further failed to prove any authorization obtained in compliance of Section 42 of the Act and no evidence to seek exemption therefrom has been adduced. Furthermore, considering that the factum of preparation of Notice under Section 50 at the spot is under grave doubt as discussed in paragraph no. 14 and placing reliance upon Section 50 of the Act as well as law laid down in case titled as Ashok Kumar Sharma Vs. State of Rajsthan 2013 STPLC (Web) 20 , this Court is of the view that Investigating agency has failed to discharge the burden of informing the accused of his rights effectively. Thus, fairness of investigation remains doubtful.
21. In the present facts and circumstances, it is pertinent to mention the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.15 of 17 accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC). In the present case, there is more than reasonable doubt with regard to the guilt of accused. So, the benefit of doubt also accrues in favour of accused.
22. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the Accused beyond reasonable doubts. Accordingly, accused Zulfi @ Ajay S/o. Sh. Bhagwati Prasad C/o. Najakat Ali is here by acquitted of the charge leveled against him.
23. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, FIR No. 294/2020 PS Shahdara State Vs. Zulfi @ Ajay Page No.16 of 17 be returned to the rightful person against receiving and after cancellation of endorsement, if any.
24. Fresh bail bond and surety bond furnished and accepted in compliance of Section 437 A Cr.P.C.
25. File be consigned to the Record Room after due compliance.
VIPLAV Digitally signed by VIPLAV
DABASS
Location: Shahdara District,
Court NO.59, Karkardooma
Announced in the Open Court
today i.e on 26.03.2022
DABASS
(VIPLAV DABAS) Courts, Delhi
Date: 2022.03.26 16:23:37 +0530
Chief Metropolitan Magistrate,
Shahdara District, Karkardooma
Court, Delhi, 26.03.2022
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