Delhi District Court
The State vs Bhim Kumar S/O Sh on 12 March, 2008
IN THE COURT OF SH BABU LAL ADDL SESSIONS
JUDGE/SPECIAL JUDGE (NDPS)DELHI
SC No 140/07
The State Versus Bhim Kumar S/o Sh
Laxman Shah, R/o Village
Jadua, P.S.& P.O. Hajipur,
Vaishali, Bihar.
FIR No 397/07
P.S. Kashmere Gate
U/s 20/61/85 NDPS Act.
Arguments heard on 12.03.2008
Judgment pronounced on 12.03.2008
JUDGMENT
1. Prosecution has filed the present challan against accused Bhim Kumar U/s 20 of Narcotic Drugs and Psychotropic Substances Act ( hereinafter referred to as 1 the Act). Case of the prosecution in brief is that on 12.7.07 Ct Neeraj Kumar was allegedly on duty at Arrival Hall, DFMD point, ISBT, Kashmere Gate. At about 5.45 p.m. accused is alleged to have come towards DFMD and on seeing the policeman, he allegedly retreated back, therefore, on suspicion he was apprehended. Accused was allegedly carrying a plastic katta of white colour on his shoulder. When Ct Neeraj Kumr allegedly asked the accused as to contents of the katta and tried to open it, accused told that it contained Ganja. Information is alleged to have been given at Police Post, Kashmere Gate and ASI Manohar Lal along with Ct Munnawar Khan reached the spot at 6.00 p.m. ASI Manohar Lal allegedly checked the katta and gave information to the SHO. He is alleged to have requested 4-5 passers by to join the raid but none agreed. He is alleged to have given notice U/s 50 of the Act to the accused and apprised him of his legal right that since Ganja had been recovered from his 2 possession and he could be in possession of more contraband, therefore, his search was required to be taken and if he so desired, his search could be taken in the presence of a Gazetted Officer or a Magistrate, but he is alleged to have declined this offer. Thereafter katta carried by the accused was allegedly checked and it was found to contain a polythene having Ganja. Ganja was allegedly taken out and was weighed and it came to 21 Kg out of which 500 gram was taken as sample and was converted into a pulanda. Remaining Ganja was converted into another pulanda. Form FSL is alleged to have been filled in. Thereafter both the pulandas and form FSL are alleged to have been sealed with the seal of MLJ. Both the pulandas and form FSL were allegedly taken into police possession. Statement of Ct Neeraj Kumar was recorded and tehrir was prepared. Case was allegedly got registered by sending Ct Neeraj Kumar to the PS with rukka and case property with directions to 3 hand over the rukka to duty officer and the case property along with form FSL to SHO. After registration of the case, ASI Manohar Lal is alleged to have prepared site plan. He is alleged to have arrested accused and conducted his personal search. He allegedly recorded statement of the witnesses, sent information U/s 57 of the Act to Senior Officers of the Police, got the sample sent to FSL. After obtaining report of FSL, he is alleged to have tendered the same in evidence. After completion of the investigation, he has filed the chargesheet in the court.
2. On appearance, accused was supplied with copies of the challan and documents filed therewith as required under Section 207 Cr.P.C.
3. Charge U/s 20 of the Act was framed against the accused Bhim Kumar to which he pleaded not guilty and claimed a trial.
4. In order to bring home guilt of the accused, prosecution in all has examined as many as seven 4 witnesses out of which PW-6 Ct Neeraj Kumar and PW-5 ASI Manohar Lal are witnesses of alleged recovery and rest of witnesses are witnesses of investigation.
5. The accused was examined under Section 313 Cr.P.C. His case is that he is innocent and has been falsely implicated in this case. His case is also that the invitation of his friend Ram Babu who resides in Usman Pur, he had come from Bihar in search of employment. He was lifted from Usmanpur Pusta by the police and thereafter he has been implicated in this false case.
6. PW- 6 Ct Neeraj Kumar in his testimony has stated that on 12.7.07 he was on duty at Arrival Hall, DFMD point, ISBT, Kashmere Gate. At about 5.45 p.m. accused is deposed to have come towards DFMD and on seeing the policeman, he retreated back, therefore, on suspicion he was apprehended. Accused is deposed to have been carrying a plastic katta of white colour on his shoulder. When he is deposed to have asked the accused 5 as to contents of the katta and tried to open it, accused told that it contained Ganja. Information is deposed to have been given at Police Post, Kashmere Gate and ASI Manohar Lal along with Ct Munnawar Khan reached the spot at 6.00 p.m. ASI Manohar Lal is deposed to have checked the katta and gave information to the SHO. He is deposed to have requested 4-5 passers by to join the raid but none agreed. He is deposed to have given notice U/s 50 of the Act Ex PW5/A to the accused and apprised him of his legal right that since Ganja had been recovered from his possession and he could be in possession of more contraband, therefore, his search was required to be taken and if he so desired, his search could be taken in the presence of a Gazetted Officer or a Magistrate. But he is alleged to have declined this offer vide his reply Ex PW5/B. Ct Munnawar is deposed to have been sent to fetch weighing material from police post and on his return Ganja was taken out of the katta, it was weighed 6 which came to 21 Kg. Out of the above 500 gram was taken as sample and was converted into a pulanda. Remaining Ganja was converted into another pulanda. Form FSL is deposed to have been filled in. Both the pulandas and form FSL are deposed to have been sealed with the seal of MLJ. Both the pulandas and form FSL are deposed to have been taken into police possession vide memo Ex PW5/C. Statement of Ct Neeraj Kumar was recorded which has been proved as Ex PW6/A and tehrir was prepared. It is deposed that case was got registered by sending him to the PS with rukka and case property with directions to hand over the rukka to duty officer and case property along with form FSL to SHO. It is deposed that SHO had put his seal of AK on both the pulandas and form FSL and deposited them in the malkhana. After registration of the case, ASI Manohar Lal is deposed to have prepared site plan Ex PW5/E. He is deposed to have arrested accused vide memo Ex 7 PW5/F and conducted his personal search vide memo Ex PW5/G. He has identified Gaja as Ex P-1, plastic katta carried by the accused as Ex P-2, and remnants of Ganja has been identified as Ex P-3.
7. Mutatis mutandis PW-5 ASI Manohar Lal has also deposed to the same effect on all the material facts, and his testimony has not been reproduced here for the sake of brevity.
8. PW-3 is Inspector Arun Kumar. On 12.7.07 he was working as SHO, PS, Kashmere Gate when Ct Neeraj Kumar came and handed over to him two pulandas and form FSL sealed with the seal of MLJ along with carbon copy of the seizure memo. He is deposed to have affixed his seal of AK on both the pulandas as also on form FSL and deposited them in the malkhana. He is deposed to have signed register No 19 against the relevant entry. He is deposed to have made DD No 28A in this regard.
8
9. PW-2 ASI Ran Singh was working as duty officer on 12.7.07. On that day at about 8.20 p.m. he is deposed to have received a rukka through Ct Neeraj Kumar and sent by ASI Manohar Lal on the basis of which he recorded FIR in this case. He has proved copy of the FIR as Ex PW2/B and endorsement made by him on the rukka as Ex PW2/A.
10. PW-1 Hc Vijender Singh was working as MHCM on 12.7.2007 in PS Kashmere Gate. He has deposed that on that day Inspector Arun Kumar, SHO had deposited two pulandas, one form FSL duly sealed with the seal of MLJ and AK along with carbon copy of seizure memo in malkhana vide entry No 4346 in register No 19. He has further testified that on the same day IO ASI Manohar Lal had deposited personal search of accused in the malkhana. On 14.8.07 he is deposed to have got sent the sample pulanda and form FSL sealed with the seal of MLJ and AK to FSL Rohini through Ct Ved Parkash 9 through RC No 116/21.. On 17.10.07 result of FSL along with pulanda containing remnants of sample is deposed to have been received in malkhana through Ct Ashok. He is deposed to have deposited sample parcel containing remnants in the malkhana and handed over result to IO. He is deposed to have made entry in register No 19 in this regard. He has proved copy extract of register No 19 showing above entries as Ex PW1/A. He has also proved copy of RC as Ex PW1/B and copy of receipt as Ex PW1/C.
11. PW-4 Ct Ved Parkash is deposed to have taken the sample along with form FSL duly sealed with the seal of MLJ and AK to FSL vide road certificate 116/21 and deposited it there on 14.8.07. On his return to PS, he is deposed to have handed over receipt of RC to MHCM. He has proved copy of RC as Ex PW1/B and receipt as Ex PW1/C. He has also testified that till the time above articles remained in his custody, nobody had tampered 10 with the same and seal thereon remained intact.
12. PW-1 Ct Parkash in his testimony has stated that report U/s 57 NDPS Act Ex PW3/A pertaining to this was received in his office on 12.7.07 vide entry at Sl No 4287. He has proved copy of diary register containing relevant entry as Ex PW3/B.
13. It has been argued by ld APP that accused was apprehended by the police and from his possession 21 Kgs of Ganja had been recovered from the bag which he was carrying with him. It has been argued that as per report of FSL, contents of the sample taken from the stuff recovered from the accused have been opined to be Ganja, therefore, case against the accused U/s 20 NDPS Act stands proved.
14. It is argued that place of apprehension of accused was ISBT, Kashmere Gate where public persons were available yet no one has been joined, therefore, testimony of the police officials is not trust worthy. On the other 11 hand, ld Addl PP for the State has argued that public persons were asked by the police to join the proceedings but they declined, therefore, non joining of any independent witness was beyond the control of police.
15. It is well settled law that it is not sine qua non to the credibility of police officials that invariably their testimony should be corroborated by independent witness. Even otherwise in Munshi and others vs. State 20 (1981) DLT (SN) 26 had observed that public generally hesitate to associate with police therefore the police has to take help of person known to them or the complainant. Even otherwise, in Natho Singh vs. State AIR 1973 SC 2763 the Lordship of Hon'ble Supreme Court has held that evidence of police officials cannot be discredited in the absence of the hostility to the accused. In other authority reported as State vs. M.M. Methew AIR 1978 SC (1571) it was held that evidence of police officials cannot be branded as highly interested 12 only on the ground that they are interested in the success of their case. Even in Appa Bhai vs State of Gujrat AIR 1988 SC 696, it has been held that civilised people are generally insensitive when a crime is committed in their presence. They keep themselves away from the court unless it is inevitable and they try to avoid to involve themselves. In the present case, place of apprehension of accused was Arrival Hall, DFMD, ISBT. Though PW-5 ASI Manohar Lal and PW-6 Ct Neeraj Kumar have stated that 4/5 passers by were asked to join the proceedings but nobody agreed and left after telling their genuine difficulties. Even PW-5 has stated that he had announced loudly and requested to join the passengers in the proceedings but no one had come forward. In view of these authorities, I am of the view that keeping in view general disinclination on the part of the people at large to join the police investigation, it cannot be said that there was any avoidance or evasion on the part of first IO in 13 joining independent witnesses. I am therefore of the view that non-joining of the independent witnesses in the factual matrix of the case was beyond the control of police and it is not a circumstance to raise suspicion about the motives of the police officials.
16. ASI Manohar Lal recorded statement of Ct Neeraj Kumar Ex PW6/A and sent the same to PS for registration of the case after making endorsement Ex PW5/D thereon. Rukka Ex PW5/D was sent at 7.50 p.m. Recovery is alleged to have been effected at 5.45 p.m. No explanation is forthcoming as to what was done between 5.45 p.m. to 7.50 p.m. when rukka was sent. On the basis of rukka FIR Ex PW2/B was recorded. In Ex PW2/B it has been mentioned that information was received at 8.20 p.m. and recorded in general diary as DD No 27A which shows that DD was recorded first and then FIR was recorded. First of all, FIR has to be recorded and only then it is to be followed by a DD in the daily 14 diary register. But practice of the police in recording DD first and then recording FIR is contrary to the provisions of law as contained in section 154 of Code of Criminal Procedure. This practice has been deprecated by Hon'ble Supreme Court in Paramjit Singh vs State of Punjab, AIR 2008 SC 441 where it has been held that when any information has been received by the PS, if it discloses commission of a cognizable offence, FIR has to be straightway recorded. It was further held that practice of the police official governed by Punjab Police Rules to enter the information into daily diary of PS first and then record the FIR is contrary to provisions of Code of Criminal Procedure inasmuch as provisions of Punjab Police Rules do not override the provisions of Code of Criminal Procedure. By this method police can easily overcome the difficulty of anti dating and anti timing of the FIR. After FIR has been recorded, DD to this effect is required to be made in daily diary. Purpose of such 15 entry in daily diary is to ensure that FIR had actually been recorded at the time given in the DD entry. Therefore, in the present case, no reliance can be placed on the assertion of the prosecution that FIR was recorded on 12.7.07 at 8.20 p.m. inasmuch as distance between place of incident and PS is 1 K.M. as mentioned in the FIR, rukka was sent at 7.50 p.m., Ct Neeraj Kumar might have taken time to reach PS, DD No 27A was recorded first and then FIR was recorded. It does not appeal to the reasons that all these proceedings could have been completed within 30 minutes. Therefore, possibility of whole of the proceedings being conducted in the PS can not be ruled out.
17. It is further argued that it is duty of the prosecution to rule out the possibility of sample being changed or tampered with and if same has not been ruled out, accused is entitled to benefit thereof. On the other hand, ld Addl PP has argued that prosecution has 16 examined all the witnesses who might have handled the sample, therefore, possibility of sample being changed or tampered with stands ruled out.
18. PW-5 ASI Manohar Lal in his testimony has stated that after recovery of 21 Kg Ganja, he had taken out 500 gram Ganja as sample and sample Ganja and remaining Ganja were converted into two separate pulandas which were sealed with the seal of MLJ. He is deposed to have also filled in form FSL and sealed the same with above seal and handed over both the pulandas and form FSL to Ct Neeraj Kumar with directions to hand over the same to SHO. According to PW-6 Ct Neeraj Kumar, he hand handed over two pulandas and from FSL to SHO along with form FSL having aforesaid seal impressions. SHO has been examined as PW-7 Inspector Arun Kumar. He has stated that on 12.7.2007 Ct Neeraj Kumar had produced two pulandas and form FSL sealed with the seal of MLJ along with carbon copy of seizure 17 memo. He is deposed to have affixed his seal of AK on both the sealed pulandas as also on FSL form and deposited the same in malkhana with their seal intact. MHCM is deposed to have made entries in register No
19. He is deposed to have also lodged DD 28A in this regard. MHCM in this case has been examined as PW-1. PW-1 Hc Vijender Singh in his testimony has deposed that on 12.7.2007 SHO Inspector Arun Kumar had deposited two pulandas, one FSL form duly sealed with the seal of MLJ and AK and copy of seizure memo in PS Malkhana and he made in register No 19. Copy of the malkhana register has been proved as Ex PW1/A. If I peruse copy of register No 19 Ex PW1/A, I find that it is nothing but reproduction of seizure memo which only narrates that two pulandas and one FSL sealed with the seal of 'MLJ' were deposited. There is no mention of the fact in Ex PW1/A if pulandas and form FSL were also sealed with the seal of AK. Therefore, version of PW-7 18 Inspector Arun Kumar and PW-1 Hc Vijender Singh is not supported by Ex PW1/A that two pulandas and form FSL sealed with the seal of MLJ and AK were deposited in the malkhana.
19. Next step taken by MHCM was that he sent the sample to FSL for chemical analysis. PW-1 Hc Vijender Singh has further stated that on 14.8.07 he had sent one sample pulanda and form FSL sealed with the seal of MLJ and AK to FSL through Ct Ved Parkash. Ct Ved Parkash has been examined as PW-4. According to him one sample pulanda and form FSL sealed with the seal of MLJ and AK were taken by him to FSL vide RC No 116/21 on 14.8.07. He has proved copy of RC as Ex PW1/B and copy of receipt at the back of RC as Ex PW1/C. If I peruse copy of RC Ex PW1/B, I find that there is no mention that sample pulanda sealed with the seal of MSK and AK was accompanied by any form FSL. Therefore, Ex PW1/B copy of RC does not support the 19 version of MHCM PW-1 Hc Vijender Singh and PW-4 Ct Ved Parkash that FSL form had also been sent along with sample pulanda. There is an endorsement in Ex PW1/A regarding sending of the sample to FSL in which it is mentioned that a sample pulanda sealed with the seal of MLJ and AK and form FSL were sent to FSL through Ct Ved Parkash on 14.8.07. There is no mention of the fact as to what seal impressions were thereon on the FSL form. Therefore, it is clear that form FSL was not sealed with above seals. It is not clear that sample and FSL form when deposited in the malkhana were having both the seals of MLJ and AK thereon. Even there is no mention of sending of FSL form to FSL in Ex PW1/B. Therefore, facts brought on record do not rule out the possibility of sample being changed or tampered with in the malkhana. In other words, prosecution has not ruled out the possibility of case property and sample being changed or tampered with in the malkhana. It also does 20 not stands proved on record that seal on the sample as well as on FSL form remained intact from the time they were deposited in the malkhana till they were sent to FSL. These are some of the circumstances which create a doubt about veracity of the prosecution case.
20. There is another point which requires to be taken into account. According to report of FSL Ex PX-1 and PX-2, contents of sample were opined to be '' Indian hemp plant i.e. Cannabis sativa ( Ganja)''. The relevant portion of section 20 of the Act is as follows '' whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:-
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-state, exports inter-State or uses cannabis, shall be punishable when quantity involved is lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees.
21. Ganja has been defined U/s 2 ( b) of the Act 21 which is reproduced as under:-
2(iii) '' cannabis ( hemp)'' means--
(a) Charas, that is, the separated resin, in whatever form whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) Ganja, that is,the flowering of fruiting tops of the cannabis plant ( excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated.
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;
(iv) '' cannabis plant'' means any plant of the genus cannabis''.
22. It is not the case of the prosecution that accused has cultivated cannabis plant. From the combined reading of section 20 and 2(b) of the Act, it is clear that ''Ganja'' is flowering of fruiting tops of the cannabis plant ( excluding seeds and leaves when not accompanied by the tops). However, report of FSL Ex PX-1 clearly states that vegetative material sent for chemical analysis was ''cannabis plant''. It is only specified portion which 22 comes within the definition of Ganja. Since reports of FSL Ex PX-1 and PX-2 state that sample sent was found to be Indian hemp plant, in my opinion, ''Indian hemp plant'' is not equivalent to ''Ganja''. Therefore, the report of FSL does not go to prove that vegetative material recovered from the accused was actually Ganja possession of which is prohibited under the Act.
23. In view of reasons given above, I am of the view that first of all there serious procedural infirmities in procedure of investigation adopted by the police. Secondly, there are infirmities in the testimony of witnesses which cast doubt about veracity of the prosecution story. In view of circumstances explained, I think that it is imperative that court ought to insist on some independent corroboration and in the absence of such independent corroboration it will not be safe to rely upon the testimony of prosecution witnesses. Thirdly prosecution has not ruled out the possibility of sample 23 being changed or tampered with. Fourthly on the basis of report of FSL, I hold that substance recovered from the accused has not been proved as ''Ganja''. I, therefore, hold that prosecution has not proved its case against accused. Accused Bhim Kumar is acquitted. He be set at liberty forthwith, if not required in any other case. File be consigned to record room.
Announced on the Open Court
on 12.03.08 (BABU LAL)
ASJ/SPL. JUDGE( NDPS)
DELHI
24