Delhi District Court
State vs . Manoj Kumar on 4 June, 2013
IN THE COURT OF SH. ARVIND BANSAL : MM (CENTRAL) - 04
TIS HAZARI COURTS, DELHI
JUDGMENT
FIR No. 69/2011
U/s 27/61/85 NDPS Act & S. 174A IPC PS NDRS State vs. Manoj Kumar A Sr. No. of the case 02401 R0200202011 B Date of institution 30/04/2011 C Date of commission of 27/03/2011 offence D Name of the complainant HC Sunder Singh through State E Name of the accused & Mohan s/o Ram Phal his parentage and r/o Vegabond, Patri Pahar Ganj, New address Delhi Railway Station.
F Offence complained of U/s 27/61/85 NDPS Act & 174 A IPC G Plea of the accused Pleaded not guilty H Order Reserved on Not reserved I Final order Acquitted u/s 27/61/85 NDPS Act Convicted u/s 174A IPC J Date of such order 04/06/2013
Brief statement of reasons for decision of the case:
1. Accused Mohan is facing trial having been charged for the offence u/s 27/61/85 NDPS Act. The facts in brief leading to the commencement of criminal proceedings against the accused may be summed up as under:- On 27.03.2011 at about 10:15 am Below pakka pul, Platform No. FIR No. 69/11, PS NDRS State vs. Mohan Page No. 1 of 11 8/9, NDRS (New Delhi Railway Station), Delhi within the jurisdiction of PS NDRS accused was found consuming smack (Diacetylmorphine) with the help of panni pipe. After completion of the necessary formalities u/s 27/61/85 NDPS Act, FIR was registered against the accused. He was formally arrested and his personal search memo and arrest memo were prepared.
2. After completion of the investigation, challan u/s 173 Cr.P.C. was filed by the IO on 30.04.2011 u/s 27/61/85 NDPS Act. The Court took cognizance of the offence on the facts alleged in the challan and proceeded against the accused. Accused was supplied with the copy of challan in compliance of Sec. 207 Cr.P.C. After hearing the arguments, notice u/s 251 Cr.PC for the offence U/s 27 of NDPS Act was served upon the accused on 23/02/2013, to which accused pleaded not guilty and claimed trial.
3. It is necessary to observe that the accused stopped appearing before the Court even before framing of notice and the Court after necessary observations, ordered the issuance of process u/s 82 CrPC against the accused.
The accused Mohan failed to appear before the Court despite publication of a declaration U/s 82 (1) Cr.P.C. and was thus, declared ABSCONDING vide order dated 18/12/2012. The accused by his non appearance before the Court despite publication of a declaration u/s 82 CrPC, committed an offence U/s 174 A IPC. Later, on 23/01/2013, accused Mohan was apprehended by the police at Paharganj Side of NDRS as he had been declared ABSCONDING vide order dated FIR No. 69/11, PS NDRS State vs. Mohan Page No. 2 of 11 18.12.12 69/11, PS NDRS, U/s 27 NDPS Act and was produced before the Court in compliance of statutory requirements. Finally, after completing the necessary formalities of investigation, IO filed the supplementary charge sheet in the Court against the accused for the offence punishable u/s 174 A IPC.
4. To establish its case u/s 27 NDPS Act, prosecution produced and examined following witnesses:
PW1 HC Sunder Singh testified as under :
That on 27.03.2011, he was posted as Head constable at PS NDRS and was on patrolling duty with Ct. Manish at Platform No. 8/9. At about 10.15 am, they noticed that accused was consuming smack with the help of panni pipe near Pakka pul. He requested 4/5 passersby to join the proceedings but none of them agreed and went away without disclosing their names and addresses. They apprehended the accused who revealed his name as Mohan. He informed him about his right to get his personal search conducted in the presence of Gazetted Officer or Magistrate and also gave a notice u/s 50 of NDPS Act to him but accused refused to avail the said right. Copy of notice u/s 50 of NDPS is Ex. PW1/A and reply of accused thereupon is at point A to A1.
Case property was taken into possession by preparing the pulanda sealed with the seal of AK vide seizure memo Ex. PW1/B. He also filled up the FSL form. Seal after use was handed over to Ct. Manish. Thereafter he prepared tehrir Ex. PW1/C and gave it to Ct. Manish alongwith pulanda and seizure memo to get FIR registered. After getting FIR registered, he returned at the spot along with HC Anil, who conducted further investigation. He handed over the accused and prepared documents to HC Anil, who prepared site plan Ex. PW1/C at his instance and after recording his statement, set him free.
The witness correctly identified the case property including match box of make "Ship Safety Matches", a panni, one pipe, few burnt and unburnt match FIR No. 69/11, PS NDRS State vs. Mohan Page No. 3 of 11 sticks as Ex. P1 (collectively).
Witness was duly cross examined by the Legal Aid Counsel for accused. PW 2 Ct. Manish retiterated the assertions made by PW1 HC Sunder Singh. PW2 also proved arrest memo Ex. PW2/A and personal search memo Ex. PW2/B. PW2 also correctly identified the accused and case property.
PW4 Inspector Suraj Bhan proved DD no. 15A, dated 27.03.2011 as Ex. PW4/A. The witness was not cross examined.
PW 5 HC Anil Kumar testified as follows:
That he was the 2nd IO in the present matter and prior to him investigation of the present case was conducted by HC Sunder. He deposed that on 27.03.2011 while he was posted at PS HQ, Duty Officer handed him over copy of FIR and original tehrir and he alongwith Ct. Manish Kumar went to the spot i.e., Pakka Pull, Opposite Paltform no. 8/9 NDRS, there he met with HC Sunder and accused Mohan. He made enquiry from HC Sunder and he disclosed him the whole incident and also handed over the custody accused to him. Thereafter, he prepared site plan already Ex. PW1/C. He recorded the statement of HC Sunder. He deposed that after making necessary enquiry from accused, he arrested him and conducted his personal search vide memos already Ex. PW2/A and PW2/B respectively. HC Sunder handed over to him the seizure memo and other documents. Thereafter, he recorded the statement of Ct. Manish. Report u/s 57 NDPS Act is Ex. PW5/A bearing my signature at point A. Witness correctly identified the accused in Court.
Witness was duly cross examined by Legal Aid Counsel for accused.
5. Further, in support of its case u/s 174-A IPC prosecution produced FIR No. 69/11, PS NDRS State vs. Mohan Page No. 4 of 11 and examined following one witness.
PW1 HC Harpal Singh testified that on 23.01.2013, while he was posted at PS NDRS and was on patrolling duty alongwith Ct. Bagicha Singh and Ct. Mukesh at Paharganj side, NDRS, Delhi he received information from the secret informer that the accused Mohan who had been declared PO by the Court is present Near Public Toilet and can be arrested. He, thus, reached at that place and noticed the accused standing there. He apprehended the accused with the help of accompanying Constables and on preliminary interrogation, he revealed his name as Mohan s/o Ramphal. He arrested the accused and prepared the kalandra u/s 41(1)(c) CrPC and the said kalandra is Ex. PW3/A. Statements of the witnesses were recorded u/s 161 CrPC. Supplementary Charge sheet was prepared and accused was produced in the Court.
The witness was not cross examined by Legal Aid Counsel for the accused.
As no material witness was left to be examined, PE was closed and the matter was fixed for Statement of accused.
6. In his statement recorded u/s 313 Cr.P.C., accused denied all the incriminating evidence against him and pleaded false implication. However, he chose not to lead evidence in his defence.
Final arguments advanced by the Ld. APP for State and Ld. Legal Aid Counsel for the accused heard. Record carefully perused.
Appreciation of Evidence:
7. The scrutiny of testimonies of witnesses provides that the accused is shown to have been caught red handed on 27.03.2011 at about 10:15 AM from below pakka pul, plat form no. 8/9, New Delhi Railway Station.
FIR No. 69/11, PS NDRS State vs. Mohan Page No. 5 of 11 Further, the accused was allegedly caught red handed while consuming smack with the help of panni pipe.
The place and timing of arrest of the accused is such where the presence of independent public witnesses cannot be ruled out. Rather, PW1 and PW2 admitted in their examination in chief that they requested passersby to join the investigation but none of them agreed and went away without disclosing their names and addresses, but he did not give any written notice to the public persons who refused to join the investigation.
In these circumstances, burden lies on the prosecution to establish that the association of such persons as Public witnesses was not possible in the facts and circumstances of this case. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to seen with suspicion.
There is nothing in the testimony of the police witnesses examined whether any sincere efforts were made by them to join the independent witness. They deposed that no Railway official was joined in the investigation. Such an ordinary conduct of the police officials do not support the case of prosecution and acts fatal to the entire set of events put forth by the prosecution. The witnesses have failed to depose to the effect whether even the names and addresses of such public persons were asked for or recorded or whether any legal action was taken against them for not joining investigation. In the absence of any independent FIR No. 69/11, PS NDRS State vs. Mohan Page No. 6 of 11 witness having been joined in the investigation, false implication of the accused by the local police in the present case cannot be ruled out.
This observation of the court is fortified by the following observations of the Hon'ble High Court of Punjab & Haryana in case titled Roop Chand vs. State of Haryana, 1999 (1) C.L.R 69:
"...It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case.
In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have FIR No. 69/11, PS NDRS State vs. Mohan Page No. 7 of 11 proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful..."
8. This contradiction assumes significance on account of another grave contradiction which is to be seen in the document Ex. PW1/B i.e. seizure memo. The said document bears the FIR number. Similarly, notice u/s 50 NDPS Act Ex. PW1/A given to accused also bears FIR number. It is an admitted case of the prosecution that the said documents were prepared by the 1st IO before sending Constable HC Manish with Tehrir for registration of FIR. There is nothing in the testimony of PW5 i.e. 2nd IO regarding any alteration or addition in the documents prepared and handed over to him by the Ist IO.
It raises doubt that that the entire paper work was done by the police officials at the PS itself. It further strengthens the doubt of false implication of the accused.
9. Furthermore, the seal of 'AK' which was used to seal the recovered match sticks and panni pipe was handed over to HC Manish after use by IO HC Sunder Singh. No handing over memo of the seal was ever prepared. Further, the seal was also not deposited in the malkhana by Constable Manish. This further adds to the possibility of planting the alleged panni pipe having traces of smack on the present accused.
FIR No. 69/11, PS NDRS State vs. Mohan Page No. 8 of 11 The arrival and departure entries of the police officials on patrolling duty have also not been proved by the prosecution which raises doubt regarding the presence of the police officials at the alleged place of occurrence.
10. Admittedly, it is the case of prosecution through the testimony of police officials that when the accused was apprehended, he was consuming smack with the help of panni pipe. In fact, the panni which was allegedly seized by the IO was also found having the traces of smack i.e., Diacetylmorphine. The police officials never requested the concerned doctor who prepared MLC to take the blood sample of the accused to ascertain that the accused had consumed smack. The MLC which has been placed on record does not prove in any way that the accused had consumed smack. The failure of the concerned police officials to request the doctor to take blood sample and their failure to apprise the doctor the circumstances of the matter requiring the medical examination of accused for ascertaining the presence of traces of Diacetylmorphine in his blood, also affects the case of prosecution. It also strengthens the observation of the Court that the accused may have been falsely implicated in the present matter.
11. These factors and infirmities, in the considered opinion of the court, are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend the benefit of doubt to the accused Mohan. In view of the foregoing discussion, accused Mohan is given benefit of doubt and is, accordingly, acquitted of the charged offence punishable u/s 27/61/85 NDPS Act.
FIR No. 69/11, PS NDRS State vs. Mohan Page No. 9 of 11
12. To establish the offence u/s 174 A IPC beyond reasonable doubt, the prosecution is required to prove the following ingredients:
(A) that a proclamation U/s 82 (1) Cr.P.C. was issued against the accused by the Court.
(B) that the accused failed to appear at the specified place and time as required by the proclamation.
13. The first ingredient of the offence i.e. the publication of a proclamation against the accused stands proved from the order dated 18.12.12 of this Court. The statement of process server Ct. Om Prakash who had executed the process against the accused has also been perused. The process was issued against the accused U/s 82 (1) Cr.P.C. and he was declared ABSCONDING accordingly.
As per the proclamation published against the accused, he had to appear before the Court on 18.12.12 at 10 AM but he failed to appear despite the publication of the proclamation and hence, was declared ABSCONDING.
The proceedings carried out by the police officials on 23.01.13 i.e. the arrest of the accused is a subsequent development which does not affect the factum of issuance of proclamation and the non appearance of the accused thereupon. The defence of the accused that he was not arrested from the railway station but was lifted from somewhere else does not dent the conclusive evidence that he had failed to appear after declaration of a proclamation.
The accused has failed to accord any reasonable ground for his non appearance before the Court as required by the declaration U/s 82 FIR No. 69/11, PS NDRS State vs. Mohan Page No. 10 of 11 (1) Cr.P.C. and thus, has failed to raise any defence on the standard of preponderance of probabilities. Even otherwise, S. 174A IPC does not create or provide any defence or exception to the accused which he could use to his benefit.
14. In view of the aforesaid discussion, Court is of the considered opinion that prosecution has proved its case against the accused beyond reasonable doubt and hence, accused Mohan is hereby convicted of the offence u/s 174A IPC.
Dictated and announced in the open Court on June 04, 2013.
(Arvind Bansal) Metropolitan Magistrate(Central)-04 Tis Hazari Courts, Delhi FIR No. 69/11, PS NDRS State vs. Mohan Page No. 11 of 11