Delhi District Court
State vs . Vikas Dahiya on 7 January, 2015
IN THE COURT OF MS CHETNA SINGH METROPOLITAN
MAGISTRATE-02 (SOUTH) NEW DELHI
STATE Vs. Vikas Dahiya
FIR NO. 97/04
U/s : 21(b) of NDPS Act
P.S. : Malviya Nagar
Date of Institution : 07.08.2004
Date on which case reserved for Judgment : 07.01.2014
Date of judgment : 07.01.2014
JUDGMENT
1.FIR No. of the case : 97/04
2.Date of the Commission : 01.02.2004
of the offence
3.Name of the accused : Vikas Dahiya S/o Sh. Karan Singh
: R/o Chaudhary Khad Beej Bhandar,
: Kakrohi Road, Sonepat, Haryana.
4.Name of the complainant : SI Rajender Singh, Special Shift,
: South District, PS Malviya Nagar,
: New Delhi.
5.Offence complained of : 21 (b) of NDPS Act.
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
FIR No. 97/04 State Vs. Vikas Dahiya 1/12
BRIEF FACTS
The story of the prosecution is that on 01.02.2004 at about 2.10PM at Press Enclave Road near Alibaba chalis Chor Restaurant, Khirki Extension, New Delhi within the jurisdiction of PS Malviya Nagar, accused Vikas Dahiya was found in possession of 10 gms of smack in contravention of the provisions of NDPS Act and thereby committed an offence punishable u/s 21(b) of NDPS Act.
On the basis of the said allegations and on the basis of the complaint of the complainant, an FIR bearing number 97/04 under section 21 (b) of NDPS Act was lodged at Police Station Malviya Nagar.
After investigation, charge-sheet under section 173 Cr.P.C was filed on 07.08.2004.
On the basis of the charge-sheet, a charge for the offence punishable under section 21 (b) of NDPS Act was framed against the accused Vikas Dahiya and read out to the said accused person, to which he pleaded not guilty and claimed trial on 10.12.2004.
APPRECIATION OF EVIDENCE To prove its case, prosecution has examined the following witnesses:
PW-1 HC Veer Sain being Duty Officer was examined on 24.01.2005 and proved the FIR vide Ex. PW-1/A and his endorsement on the basis of rukka vide Ex. PW-1/B. This witness was not cross examined by Ld. Defence counsel for the accused despite opportunity given.
FIR No. 97/04 State Vs. Vikas Dahiya 2/12 PW-2 Ct. Sant Ram was examined on 24.01.2005 and deposed that on 26.02.04 he was posted at PS Malviya Nagar and on that day on the direction of the IO, he took one sealed parcel duly sealed with the seal of RS and SK and FSL forms from MHC(M) vide RC no. 146/21 and one priority letter to FSL Rohini Sector 14 and deposited the same there. After that he handed over copy of Road Certificate to MHC(M) HC Ram Heth at PS Malviya Nagar on the same day. So long as there exhibits remained with him they remained intact and not tampered in any way by him.
This witness was not cross examined by Ld. Defence counsel for the accused despite opportunity given.
PW-3 HC Satish Kumar was examined on 23.08.2005 and deposed that on 01.02.04 he was posted at Special Staff South District and was working as DD writer/duty officer from 8am to 8pm in their office. He further deposed that at about 12noon, SI Rajinder Singh along with HC Shyam Veer, HC Yogender, HC Shiv Ram, HC Ram Karan, HC Manoj, Ct. Rajbir and Ct. Vir Singh left their office for patrolling vide DD no. 5 dated 01.02.2004. He further brought original daily diary and the said entry was in his hand and the copy of the same is Ex. PW-3/A on the same date, at about 9.00pm. He further deposed that SI Suresh Sharma came to him and he lodged DD no. 12 regarding the proceedings conducted in this case till that time and he recorded the same in the daily diary. He further brought original daily register and DD no. 12 was in his hand and copy of the same is Ex. PW-3/B (OSR).
This witness was not cross examined by Ld. Defence counsel for the accused despite opportunity given.
FIR No. 97/04 State Vs. Vikas Dahiya 3/12 PW-4 SI Kailash Bisht was examined on 23.08.2005 and deposed that an information u/s 57 NDPS Act in writing sent by SHO and IO Special Staff was received by the office of ACP on 02.02.04 and the entry at serial no. 703 was made in the diary register. He further deposed that the he brought the original diary register pertaining to that date, photocopy of the said entry is Ex. PW-4/A (OSR) and he brought the original copy of the information u/s 57 NDPS Act which was sent by SI Suresh Sharma of special staff, south district dated 02.02.2004 which bears the signature of ACP Sh. O.P. Yadav. Photocopy of the same is Ex. PW-4/B. He further identified the signature of ACP as per record.
This witness was not cross examined by Ld. Defence counsel for the accused despite opportunity given.
PW-5 Inspector Surender Sharma was examined on 30.03.2006 and deposed that on 01.02.04 he was posted as SHO of PS Malviya Nagar and on that day at about 2.15pm SI Rajender Singh, Special Staff, South District gave him a phone call at Phone no. 26680424 in PS Malviya Nagar that he along with the staff had apprehended two persons on a black pulsar Motorcycle bearing no. HR-20J-3972 near Ali Baba Restaurant, Khirki Extension and the name of the apprehended persons were one Pradeep Kumar R/o Jind Haryana, from whom one knife was recover and one Vikas Dahiya i.e. Accused present in the court from whom Smack was recovered. He further deposed that he asked SI Rajender Singh to proceed against the accused Vikas Dahiya under NDPS Act as per legal procedure. He further deposed that at about 4.30pm on the same day Ct. Beer Singh of special staff south district came to PS Malviya Nagar and met him and Ct. Beer Singh handed over 3 sealed parcels duly sealed with the seal of RS containing Smack, one CFSL form FIR No. 97/04 State Vs. Vikas Dahiya 4/12 and carbon copy of the seizure memo. He further deposed that he put the case details on the seizure memo, the FIR no. on all the three sealed parcels and CFSL form and also signed the sealed parcels and the CFSL form and thereafter he deposited the same in the Malkhana of PS Malviya Nagar with MHCM and recorded DD entry also in this regard.
This witness was cross examined by Ld. Defence counsel wherein he stated that he was asked in question form that Did you receive information from Rajinder Singh in writing? He had given an answer that I received information on phone as mentioned in my chief about the apprehension of the accused and not about the secret information in writing. He further deposed that SI Rajender Singh did not call him at the spot as he was also busy in the PS and he did not visit the spot by reason and he was busy in some other work. He admitted that the proceedings of the present case did not take place in his presence. He further deposed that Ct. Beer Singh came to PS Malviya Nagar and met him at 4.30pm and it was stated by Ct. Beer Singh and SI Rajinder Singh of Special Staff, South District that there are sealed parcels with the seal of RS containing Smack but he did not open the parcels so he did not see himself what was the substance there in the three sealed pullanda. He further deposed that accused Vikas Dahiya was not produced before him so he cannot identify him. He denied the suggestion that the accused has been falsely implicated in this case as it has been planted by the Special Staff and SHO. He further denied the suggestion that the sealed parcels were never produced before him and neither he affixed his seals on them. He further denied the suggestion that neither the sealed parcels nor the CFSL form were deposited in the Malkhana or that he was deposing falsely.
PW-6 SI Suresh Sharma was examined on 15.07.2008 and FIR No. 97/04 State Vs. Vikas Dahiya 5/12 deposed that on 01.02.04 he was posted at Special Staff, South District, Madangir, New Delhi and was present at the office and on that day at about 3.45pm, duty officer HC Satish Chand informed him that he had been entrusted with investigation of FIR no. 97/04, PS Malviya Nagar u/s 21/61/85 NDPS Act and he was further told to reach at the spot at Press Enclave Road near Ali Baba Chalis Chor Restaurant, Khirki Extension, New Delhi. Accordingly, he reached at the spot along with HC Phool Singh where SI Rajender Singh along with staff and accused Vikas Dahiya met them and SI Rajender Singh handed over him relevant documents of the case FIR no. 97/04. Meanwhile, Ct. Bir Singh also reached at the spot who handed over him original rukka along with copy of FIR. The copy of FIR is already Ex. PW-1/A while the rukka is Ex. PW-1/B. He further verified the facts from accused Vikas Dahiya and prepared site plan Ex. PW-6/A at the instance of SI Rajender Singh which bears his signature at point A. Statement of SI Rajender Singh u/s 161 Cr.P.C. recorded. Accused was arrested and his personal search was conducted vide memos Ex. PW-6/B and C respectively. One brown colour purse containing some visiting cards, one RC of vehicle no. HR-20J-3972 in the name of Anil Sangwan, two blank I cards of Shaheed Bhagat Singh College and case of Rs. 280/- were seized. Thereafter, disclosure statement of the accused was recorded vide memo Ex. PW-6/D. He further deposed that the accused got joined in the investigation in pursuance of disclosure statement and he got recovered 4 mobile phones from his rented house i.e. Flat no. A-11, Building no. 22, Gupta Colony, Khirki Extension, Malviya Nagar, New Delhi. He further deposed that out of 4 mobile phones, one was of Reliance LG, second one was of Nokia 3310, third one was of Nokia 7650 and fourth one was of Nokia 3650 which he took into police possession vide memo Ex. PW-6/E FIR No. 97/04 State Vs. Vikas Dahiya 6/12 bears his signature at point A u/s 102 Cr.P.C. from there they went to PS Malviya Nagar where he deposited personal search articles and above mobile phones seized u/s 102 Cr.P.C. in malkhana. The accused was got medically examined. He further deposed that he brought the accused to special staff office, Madangir and produced before Inspector Rajinder Singh, In-charge of Special staff. The accused was sent to lock up of PS Ambedkar Nagar. He further deposed that he recorded the statement of the witnesses and on 02.02.2004, he prepared report u/s 57 NDPS Act and submitted the same to Inspector of Special Staff for forwarding the same to senior officers. He further deposed that he had recorded the statement of Inspector Surender Sharma, SHO PS Malviya Nagar on 02.02.2004, his report u/s 57 NDPS Act is Ex. PW-6/F. He further deposed that on 26.02.2004, he directed Ct. Sant Ram to collect the representatives samples of heroin recovered from the accused along with form FSL of this case from PS Malviya Nagar and deposit the same in FSL Rohini who accordingly deposited the same. The statement of Ct. Sant Ram and MHCM was recorded. The FSL result was collected which is Ex. PW-6/G. Challan was filed in the court. He further identified the accused present in the court today.
This witness was cross examined by Ld. Defence counsel wherein he stated that the incident in question occurred on 01.02.2004 and on that day he was posted as Special Staff, SD at Madangir and DO/HC Satish informed him about the incident at about 3.45 pm and told him that SI Rajender had apprehended Vikas Dhaiya and Pradeep Sangwan and given separate Parcha under NDPS Act against Vikas Dhaiya and under Arms Act against Pradeep Sangwan. He further deposed that he along with HC Phool Singh reached at the spot at about 4.15.pm. He further deposed FIR No. 97/04 State Vs. Vikas Dahiya 7/12 that there is no public witness to the recovery and recovery was not effected in his presence as he was the second IO who had submitted the challan.
PW-7 SI Rajender Kumar was examined on 14.11.2014 and deposed that on 01.02.2004 he was posted as SI at Special Staff, SD and on that day he along with HC Shyam Veer, HC Jogender, HC Ram Karan, HC Swaram, HC Manoj, Ct. Veer Singh and Ct. Raj beer were on petrolling duty at T-point Press enclave, Saket at around 1.20 pm. He further deposed that a secret informer informed that two boys moving in Saket on black pulser number HR-20J-3972 who were moving for snatching and they about to come to Khirki Extn in search of accused conducting the illegal arms can be recovered. He further deposed that they started picketing at Kaccha Rasta near Alibaba Chalis Chor. He further deposed that he had requested to public persons to join the investigation however, none agreed at around 2.10 Pm those two boys came and they signaled them to stop at the instance of secret informer. He further deposed that he saw that Vikas Dhiya was driving motorcycle, he apprehended the Vikas Dhaiya and Pradeep Sanwan has been apprehended by HC Shyam veer and Rajbeer. He further deposed that on search of Vikas Dhiaya he found a plastic pouch from right side pocket of the pant. He further examined and found containing samke of about 10 gm. He further deposed that he intimated to SHO Malviya Nagar about the incident and seized the said smack with seal of RS by taking 2 gm as sample vide seizure memo Ex. PW7/A and filled the CFSL form and sealed the said sample with RS and handed over seal to HC. Ram Karan. He further deposed that he had seized the motorcycle under 102 Cr. P.C vide seizure memo Ex. as PW7/B and prepared tehrir and handed all three pullunda with relevant document FIR No. 97/04 State Vs. Vikas Dahiya 8/12 and handed over it to Ct. Veer Singh for registration of the case. The said Tehrir is Ex. as PW7/C bearing his signature at point B. Further investigation of the case had been conducted by SI Suresh Sharma. He further identified the accused present in the court. His cross examination has been deferred.
Apart from these seven witness, no other witness was examined by the prosecution. Hence, PE was ordered to be closed on 19.12.2014. After closing of prosecution evidence, the statement of accused under section 313 r/w section 281 Cr.P.C was recorded on 07.01.2014. In his statement, the accused stated that he has been falsely implicated in this case. He further stated that he does not want to lead defence evidence.
The main arguments of Ld. Defence Counsel can be summarized as follows:
● Non-joinder independent witnesses despite availability casts a serious doubt over the truthfulness of prosecution story.
● Accused was falsely implicated in the present case.
The main arguments of Ld. Prosecutor can be summarized as follows:
● Sufficient materials are available on record to prove the guilt of accused.
● People do not want to get involve in police cases. Notice could not be served due to paucity of time.
Arguments of both sides heard and record perused.
FIR No. 97/04 State Vs. Vikas Dahiya 9/12
REASONS FOR DECISION
It is clear from the evidence on record that there is no public witness to the recovery, which is essential in such cases where recovery in itself forms the sole ground for conviction of the accused.
It is to be noted that the present case that recovery was made from a public place being Press Enclave Road near Ali Baba Chalis Chor Restaurant, Khirki Extension, New Delhi and there was sufficient opportunity to join public witnesses to substantiate the factum of recovery of the case property from the accused.
Failure to join public witnesses can prove fatal in such like cases and my this view is further fortified by the judgments mentioned below:
In the state of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held:
The failure of the prosecution to examine independent witnesses though available is fatal for their case.
In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that:-
Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
FIR No. 97/04 State Vs. Vikas Dahiya 10/12 The court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 the division bench of Honorable Justices Sh. S.B.Sinha and Sh. Dalveer Bhandari observed:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken. Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus: "The court may presume-
(a)***
(b)***
(c)***
(d)***
(e)***
(f)***
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who holds its."
An adverse inference, therefore, could be drawn for non-examination of material witnesses." (emphasis supplied) In absence of a public witness to the recovery and also in absence of an explanation as to why a public person was not joined, the prosecution has failed to prove the recovery of the smack from the accused beyond reasonable doubt.
Thus, the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt.
FIR No. 97/04 State Vs. Vikas Dahiya 11/12 In the light of the above discussion, accused Vikas Dahiya is acquitted for the offence u/s 21 (b) of NDPS Act.
Previous bail bond in compliance of section 437-A Cr.P.C. to remain in force for a period of 6 month from today. File be consigned to record room.
Announced in the Court (CHETNA SINGH) on 07.01.2015 MM-02(SD)/07.01.2015
Certified that this judgment contains 12 pages and each page bears my signatures.
(CHETNA SINGH)
MM-02(SD)/07.01.2015
FIR No. 97/04 State Vs. Vikas Dahiya 12/12