Delhi District Court
State vs . Pradeep Kumar on 21 May, 2022
IN THE COURT OF SH. DEEPAK WASON:
SPL. JUDGE (NDPS): DWARKA COURTS: NEW DELHI
SC No. 68/2021
FIR No. 981/2020
PS: Uttam Nagar
U/s. 18 (c) NDPS Act
State vs. Pradeep Kumar
Date of Institution of case:30.01.2021
Date of arguments:21.05.2022
Date on which Judgment pronounced:21.05.2022
JUDGMENT
CNR No. :DLSW010010892021
Date of commission of offence :07.12.2020
Name of complainant :SI Vijay Pal
Name and address of accused :Pradeep Kumar
S/o Sh. Dhanejar Gupta
R/o Village Jaindaili
near Khoariya,
Ludhiana City, Punjab.
Offence complained of :18 (c) of the NDPS Act
Plea of accused :Pleaded not guilty
Date of order :21.05.2022
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 07.12.2020, a secret informer met SI Vijay Pal at the police station and informed him that a person would come at Shiv Vihar Nala who used to involve in Narcotic substance and if raided, he would be apprehended. It is further the case of the prosecution that thereafter, the said secret information was shared by SI Vijay Pal with SHO and thereafter, SHO further shared the said secret information with ACP Dabri, upon which ACP ordered SC No. 682021 State Vs. Pradeep Kumar Page 1 of 22 for raid. It is further the case of the prosecution that as per the directions of the ACP, a raiding team was constituted consisting of SI Vijay Pal, HC Gopal and Ct. Ajay and at about 4:40pm, SI Vijay Pal proceeded from the police station vide DD No. 62A along with raiding team and IO kit and before proceeding from the police station, the said information was reduced into writing vide DD No. 60A in compliance of proceedings under Section 42 NDPS Act. It is further the case of the prosecution that at about 5:00pm, they reached at Shiv Vihar Nala near Kura Ghar. Thereafter, they started the search of the accused and reached near gate of MCD yard. It is further the case of the prosecution that on pointing out of secret informer, accused was apprehended, who was carrying coca cola colour bag on his right shoulder and he was also carrying a yellow colour bag in his hand and thereafter, secret informer left the spot and at about 5:15pm. It is further the case of the prosecution that on inquiry, accused disclosed his name as Pradeep Kumar. It is further the case of prosecution that thereafter, SI Vijay Pal informed about legal rights to accused Pradeep Kumar and prepared a notice under Section 50 Narcotic Drugs and Psychotropic Substances Act, (in short, the NDPS Act) in duplicate and the original copy of notice was served to the accused, upon which accused gave his reply on the carbon copy of the notice that he wants to be searched in the presence of Gazetted Officer and accordingly, duty officer was informed regarding Gazette Officer and accordingly, ACP Anil Dureja and SHO Ram Kishore also reached at the spot and cursory search of accused Pradeep Kumar was conducted by SI Vijay Pal and during the search, one coca cola colour bag SC No. 682021 State Vs. Pradeep Kumar Page 2 of 22 containing two plastic packets and another yellow colour bag containing one plastic packet were recovered from the possession of accused and after checking the same, brown colour substance was recovered, upon which accused Pradeep Kumar disclosed that said substance was doda chura. It is further the case of prosecution that thereafter, SI Vijay Pal weighed the brown colour substance (doda chura) with the help of Electronic Weighing Machine and on weighing the same, 5.520 Kg and 5.506 Kg were found from packets of coca cola colour bag and 5.510 Kg were found from the packet of Yellow colour bag. It is further the case of prosecution that thereafter, both the bags were kept in a white plastic katta by SI Vijay Pal and gave separate exhibits to them and further kept in four plastic kattas and converted into four pulandas and sealed with the seal of VP. It is further the case of prosecution that thereafter FSL form was filled up and case property was seized and seal after use was handed over to Ct. Ajay. It is further the case of the prosecution that thereafter, SI Vijay Pal prepared rukka and sealed case property, form FSL and copy of seizure memo along with rukka were handed over to HC Gopal for registration of FIR and proceedings under Section 55 NDPS Act. On the same day ie on 07.12.2020, HC Gopal also produced sealed case property along with copy of seizure memo and FSL form before the concerned SHO and all 4 sealed parcels and FSL form were counter sealed by the SHO and concerned SHO handed over all the sealed parcel, FSL form and carbon copy of seizure memo to MHC(M) for depositing the same in the malkhana and in this regard entry was also made in register No. 19 and lodged DD entry regarding depositing of SC No. 682021 State Vs. Pradeep Kumar Page 3 of 22 case property in malkhana under compliance of Section 55 of NDPS Act.
2. Further, it is the case of the prosecution that after registration of FIR, the investigation of present case was marked by the order of SHO to SI Vipin Malik and accordingly, SI Vipin Malik and HC Gopal reached the spot where they met SI Vijay Pal and Ct. Ajay along with accused Pradeep Kumar. It is further the case of the prosecution that thereafter, SI Vijay Pal handed over all the documents and custody of the accused to SI Vipin Malik and after interrogation, arrested the accused and his personal search was conducted. It is further the case of prosecution that after recording of disclosure statement of accused Pradeep Kumar, the accused was medically examined at DDU hospital and was sent to lockup and after producing before the Court, accused was sent to JC. Further, on 09.12.2020, intimation under Section 57 of NDPS Act was sent to ACP Dabri by SI Vipin Malik. During the investigation, an application was moved by SI Vipin Malik for drawing samples before Ld. MM. On 16.12.2020, SI Vipin Malik took one day PC remand of accused from the Court for the search of coaccused. After PC remand, accused was sent to JC. After completing the investigation, final report was filed and thereafter, after collecting FSL result the same was filed before the Court through supplementary chargesheet.
3. Vide order dated 13.09.2021, the charge for the offence under Section 18 (c) of the NDPS Act was framed SC No. 682021 State Vs. Pradeep Kumar Page 4 of 22 against the accused on the allegations that accused was found in possession of 16.536 Kg of Poppy Straw to which he pleaded not guilty and claimed trial.
4. The prosecution examined 8 witnesses in support of its case who are as follows:
5. PW1 is Ct. Kuldeep Singh. He has deposed that on 11.12.2020, on the directions of the IO, he collected three seized exhibits and sample seal duly sealed with the seal of SST for depositing at FSL, Rohini vide RC No. 237/21/2020 and after depositing the same at FSL Rohini handed over the receipt to MHC(M). He has further deposed that the case property was not tampered with as long as the case property remained in his possession. This witness was crossexamined by Ld. defence counsel.
6. PW2 is HC Kuldeep. He has deposed that on 11.12.2020, he was posted as MHC(M) and on that day, a forwarding letter handed over by IO to him, three exhibits and sample seal of SST were sent to FSL Rohini through Ct. Kuldeep vide RC No. 237/21/2020 as Ex. PW1/A and after returning, he handed over the receipt to him which is Ex. PW1/B. He has further deposed that he made entry in register no. 19 with regard to case property sent to FSL as Ex. PW2/A. He has further deposed that the case property was not tampered with as long as the case property remained in his possession. This witness was also crossexamined by Ld. defence counsel.
SC No. 682021 State Vs. Pradeep Kumar Page 5 of 227. PW3 is Inspector Ram Kishore. He has deposed that on 07.12.2020, he was posted as SHO Uttam Nagar and has also joined the investigation with IO/SI Vijay Pal in the present case and deposed about the recovery from the accused as well as investigation conducted by the IO. He has further deposed that on the same day, HC Gopal produced 4 sealed parcels/ pulandas duly sealed with the seal of 'VP', FSL form and carbon copies of seizure memo before him duly sealed with the seal of 'VP'. He has further deposed that after checking the parcel / pulandas and documents, he put up his counter seal of 'RK' on all 4 sealed pullandas and FSL form. He has further deposed that he called MHC(M) CP at his office along with register No. 19 and handed over the case property and seizure memo to him with the direction to deposit the same in the malkhana. He has further deposed that he got entered regarding depositing of case property into register no. 19 and also signed on register no. 19, copy of the same is already Ex.PW2/A and got lodged DD No. 93A dt. 07.12.2020 PS Uttam Nagar regarding depositing of case property under compliance of Section 55 NDPS Act, same is already exhibited as Ex.PW3/B. This witness has also identified the accused as well as the case property. This witness was also cross examined by Ld. defence counsel.
8. PW4 is SI Vijay Pal. He is the first IO and has deposed that on 07.12.2020, one secret informer came to the police station and informed him that a person would come at Shiv Vihar Nala who used to involve in Narcotic substance and if raided, he can be apprehended. He has further SC No. 682021 State Vs. Pradeep Kumar Page 6 of 22 deposed that said information was shared by him with SHO and after satisfaction, SHO further shared the said secret information with ACP Dabri. He has further deposed that thereafter, he constituted a raiding party on the directions of the ACP consisting of HC Gopal and Ct. Ajay including himself. He has further deposed that at about 4:39pm, they proceeded from police station alongwith IO Kit vide DD No. 62A and after making departure Entry vide DD No. 60A with compliance under Section 42 of NDPS Act and at about 5:00pm, they reached the spot i.e Shiv Vihar Nala near Kura Ghar and on the way, he requested 2/3 public persons to join the raiding party, but they all refused the same and left the spot without disclosing their names and addresses. He has further deposed that thereafter, they started the search of the accused and reached near gate of MCD yard and secret informer pointed out towards a person and stated that he is same person who used to involve in drug supplying business. He has further deposed that the said person was carrying coca cola colour bag on his right shoulder and he was also carrying a yellow colour bag in his hand and thereafter, secret informer left the spot. He has further deposed that at about 5:15pm, accused was apprehended and on inquiry, accused revealed his name as Pradeep Kumar. He has further deposed that he informed the accused about the secret information and that his search was to be taken and also apprised him about his legal rights that his search can be taken in the presence of any Magistrate or Gazetted officer and also apprised the accused that before his search, the accused can take the search of the police party and thereafter, he informed SC No. 682021 State Vs. Pradeep Kumar Page 7 of 22 to duty officer regarding the Gazetted officer. He has further deposed that accused demanded that his search to be conducted in front of Gazetted Officer. He has further deposed that he prepared notice under Section 50 NDPS Act in duplicate with the help of a carbon as Ex.PW4/B and the same was given to the accused and took his reply on the carbon copy of notice of u/s 50 of NDPS Act which is Ex.PW4/C. He has further deposed that in the meantime, ACP Anil Dureja and SHO Ram Kishore reached at the spot and in the presence of ACP and SHO, he took the cursory search of accused and during the cursory search of accused, one coca cola colour bag containing two plastic packets and another yellow colour bag containing one plastic packet were recovered. He has further deposed that thereafter, he checked all three packets and found brown colour substance (bhurey rang ka chura) and upon inquiry, accused Pradeep Kumar disclosed that recovered substance was doda chura. He has further deposed that after weighing the recovered substance with the help of Electronic Weighing Machine, the same was found to be 5.520kg and 5.506kg (both packets recovered from coca cola bag) and the weight of 3 rd packet was found 5.510 kg (which was recovered from the yellow colour bag) and gave marked Ex.1 to 5.520 kg and Ex.2 to 5.506 kg and Ex.3 to 5.510 kg. He has further deposed that thereafter, he kept both bags(coca cola colour and yellow colour) in a white plastic katta and marked as Ex.4 and all exhibits P1 to P4 separately kept in four plastic katta and all plastic kattas were converted into pulandas and all four puladadas sealed with the seal of 'VP' and signed by this witness. He has SC No. 682021 State Vs. Pradeep Kumar Page 8 of 22 further deposed that case property seized and FSL form filled by this witness at the spot having seal impression of 'VP' and after used seal was handed over to Ct. Ajay. He has further deposed that thereafter, he prepared a rukka u/s 18 of NDPS Act and handed over the same to HC Gopal along with sealed case property, FSL form, copy of seizure memo for registration of FIR and proceedings u/s 55 of NDPS Act. He has further deposed that after registration of FIR, SI Vipin Malik along with HC Gopal came to the spot and and custody of the accused was handed over to SI Vipin Malik. He has further deposed that thereafter, SI Vipin Malik prepared site plan at his instance and thereafter, he left the spot. He has further deposed that on 09.12.2020, report u/s 57 of NDPS Act was sent to ACP by this witness. This witness was also cross examined by Ld. defence counsel.
9. PW5 is HC Gopal. He is one of the members of raiding team and has deposed on the lines of PW4 SI Vijay Pal. This witness was also crossexamined by Ld. Defence counsel.
10. PW6 is Ct. Ajay. He is also one of the members of raiding team and has deposed on the lines of PW4 SI Vijay Pal. This witness was also crossexamined by Ld. Defence counsel.
11. PW7 is SI Vipin Malik. He is the second IO of the case and has deposed that on 07.12.2020, after registration of FIR, the investigation of present case was marked to him by SC No. 682021 State Vs. Pradeep Kumar Page 9 of 22 the order of SHO and Duty Officer handed over to him the copy of FIR and original rukka and he along with HC Gopal reached at the spot i.e MCD Yard Gate, Uttam Nagar, Delhi where he met SI Vijay Pal and Ct. Ajay along with accused Pradeep Kumar. He has further deposed that thereafter, IO/SI Vijay Pal handed over to him all the documents and custody of the accused. He has further deposed that thereafter, he prepared site plan at the instance of SI Vijay Pal as Ex. PW 4/F, arrested the accused vide memo Ex. PW5/A and conducted his personal search as Ex. PW5/B and during his personal search, original notice under Section 50 NDPS Act, aadhar card of accused Pradeep, one mobile phone (blue colour) make itel and another mobile phone (make Mi) (black colour) and Rs. 4,910/ were recovered from the accused. He has further deposed that he recorded the disclosure statement of accused as Ex. PW5/C and filled age memo of accused as Ex.PW7/A and got conducted the medical examination of the accused at DDU Hospital and thereafter, the accused was produced before the Court and sent to JC. He has further deposed that on 09.12.2020, he sent the intimation under Section 57 NDPS Act to ACP, same is Ex. P1/4/A2. He has further deposed that on 10.12.2020, after taking samples under Section 51 of NDPS Act by Ld. MM, case property was again deposited in the malkhana by him. He has further deposed that on the next day, samples were sent by him to FSL vide RC No. 237/21/2020 as Ex.PW1/A and recorded the statement of witnesses and prepared the charge sheet. He has further deposed that on 16.12.2020, he took the PC remand of accused Pradeep Kumar and along SC No. 682021 State Vs. Pradeep Kumar Page 10 of 22 with Ct. Praveen and Ct. Pawan along with accused went to Bhilwara, Rajasthan for searching of coaccused and source of recovered narcotic substance and on 18.12.2020, he returned to Delhi and accused was sent to JC. He has further deposed that after collecting FSL result as Ex.PW1/A, the same was filed before the Court through supplementary chargesheet. This witness was also crossexamined by Ld. defence counsel.
12. PW8 is Ct. Pawan Kumar. On 16.12.2020, this witness has joined the investigation with second IO PW7/SI Vipin Malik. This witness was also crossexamined by Ld. defence counsel.
13. It is a matter of record that during the trial, the statement of the accused under Section 294 Criminal Code of Procedure (in short Cr.P.C) was recorded on 02.05.2022 wherein the accused has admitted the genuineness of certain documents i.e Ex. P1/A1 to Ex. P1/4A2 i.e FSL report, proceedings of sampling dated 07.12.2020 along with the photographs, recording of formal FIR No. 981/2020, P.S Uttam Nagar and two reports u/s 57 of NDPS Act dated 09.12.2020. It is a matter of record that vide order dated 02.05.2022, last and final opportunity was given for remaining PE. It is also matter of record that on 04.05.2022, the summons report of ACP received with the report that he is out of India till 07.06.2022 and accordingly, by observing that all the relevant witnesses have been examined, PE was closed on 04.05.2022. Thereafter, on 12.05.2022, statement of SC No. 682021 State Vs. Pradeep Kumar Page 11 of 22 accused under Section 313 Cr.P.C was recorded whereby all the incriminating evidence was put to him to which he stated that he is innocent and has been falsely implicated in the present case. During the recording of the statement, the accused did not wish to lead defence evidence and matter was posted for final arguments.
14. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
FINDINGS:
15. The records of the present case reveals that the accused stands charged for the possession of an intermediate quantity of contraband i.e 16.536 Kg of Poppy Straw. The stringent provisions are provided under the law qua the punishment especially in the NDPS cases. The scheme of the NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguards ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, the balance must be struck between the need of the law and the enforcement of such law on one hand and the protection of the citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on the exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband. In the present case, the accused was apprehended from Shiv Vihar Nala, MCD Yard Gate, Uttam Nagar, New Delhi and SC No. 682021 State Vs. Pradeep Kumar Page 12 of 22 accused was found in possession of intermediate quantity of Poppy Straw. Hence, it has to be proved that the accused was found in possession of the contraband i.e Poppy Straw. The record reveals that no independent public person was joined in the proceedings.
16. It is to be kept in mind that nonjoining of public witnesses itself cannot become a ground for acquittal, if the case of prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution cannot be held to be vulnerable for nonexamination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution cannot be disbelieved. The preposition is not disputed but balance has to be maintained, if some doubt is created regarding the involvement of accused. Each case has its own facts and circumstances.
17. Accordingly, it is trite that mere failure to associate public witnesses in search and seizure proceedings is not fatal to the case of the prosecution. However, in such a case, the burden lies heavily on the prosecution to prove two things. Firstly, that genuine and sincere efforts were made by the investigating officer to join independent persons in the proceedings and secondly, that the evidence of the official witnesses does not suffer from any infirmity.
SC No. 682021 State Vs. Pradeep Kumar Page 13 of 2218. In the present case, as per the story of prosecution, on 07.12.2020, on receiving secret information, as per the direction of ACP Anil Dureja, SI Vijay Pal constituted a raiding party consisting of HC Gopal and Ct. Ajay and apprehended accused Pradeep Kumar with illegal contraband. Though, in the present case, it has been tried to be brought on record from the testimony of prosecution witnesses that sincere efforts were made to join the public witnesses but none of them inclined to join.
19. The testimonies of the members of the raiding team suffer from contradictions and it is evident therefrom that the witnesses have remained evasive on material aspects. As far as the testimonies of witnesses with regard to joining of independent witnesses are concerned, PW3 Inspector Ram Kishore has deposed in his crossexamination that during his presence at the spot, IO had requested public persons to join the proceedings but all of them refused however, IO did not record the names and addresses of the public persons and no notice was also given to them. He has further deposed that no person from the school was called to join the proceedings. He admitted as correct that no public person was called from the nearby vicinity. However, PW4 SI Vijay Pal has also deposed in his crossexamination that at the time of leaving the police station, he did not request any public person to join the proceedings however, when he reached the spot, he requested 3 public persons to join the investigation, he had not asked the names and addresses of the said public persons and no legal action was taken against them. He has further deposed SC No. 682021 State Vs. Pradeep Kumar Page 14 of 22 that the place was not a crowded place and no person was present at MCD yard gate and during the entire proceedings conducted by him, no public persons was passing through the spot. Rather, PW5 HC Gopal has deposed in his cross examination that when they reached at the spot, 45 public persons were requested to join the investigation but all of them refused and no legal notice was given to them. He further deposed that various public persons were going through the place at the time of proceedings. He has further deposed that there was one MCD yard but no person was present there. He has further deposed that the vehicles were moving through the spot and they stopped some of the vehicles to join the proceedings but none of them agreed for the same and no notice was served upon any of them to join the proceedings. He has further deposed that IO asked those public persons verbally but they did not disclose their names and addresses. On the other hand, PW6 Ct. Ajay has deposed in his crossexamination that when they reached at the spot, 57 public persons were requested to join the investigation but all of them refused and no legal notice was given to them. He has further deposed that there was one nala near the spot and khatta and various persons were going through the place at the time of proceedings. He has further deposed that there was one MCD yard and there was no person in the MCD yard. Even, PW7 SI Vipin Malik has deposed in his cross examination that he did not request any public persons to join the investigation. However, he admitted as correct that public persons were passing through the spot. As per PW5 HC Gopal, he went to PS for registration of FIR through one e SC No. 682021 State Vs. Pradeep Kumar Page 15 of 22 rickshaw which fact has been corroborated by PW4 SI Vijay Pal and PW6 Ct. Ajay but, the driver of said erickshaw was not joined in the investigation. Apart from this, there was one MCD yard gate and one Government Boys. Sr. Secondary School have been shown in the site plan Ex. PW4/F near point A from where the accused has been apprehended. There could be a possibility that there would be no crowd at the MCD yard gate or the Govt. Boys Sr. Secondary School but there may be some gatekeeper / guard present at the said places who could have been joined in the investigation of the case. Hence, from the examination of the above witnesses, it is evident that public persons were present at the spot but perusal of the crossexamination of witnesses show that neither any sincere efforts have been made by the IO to join any public persons/the driver of erickshaw to join the investigation nor served any notice to them for nonjoining the investigation.
20. Admittedly, the police officials remained at the spot for a considerable period of time and IO was having ample time to join the independent person in the proceedings. It is the case of the prosecution that public persons were requested to join the proceedings but they declined. It is a quite surprising fact that despite the availability of the public witnesses, the investigating agency could not associate even a single public witness at any stage of the investigation. It has been stated in a casual and routine manner that the public persons, who were asked to join the investigation, declined to do so and went away without disclosing their names and SC No. 682021 State Vs. Pradeep Kumar Page 16 of 22 addresses. Subsection (8) of Section 100 Cr.P.C clearly spells out that if a public witness refuses or neglects to attend a search without reasonable cause in spite of an order in writing, he shall be deemed to have committed an offence under Section 187 IPC. There is nothing on record to indicate that the investigating officer had served or even attempted to serve any order in writing upon any public witness. So much so, neither the names nor the addresses of the persons who refused to join the proceedings have been given. All the above leads to the inevitable inference that the investigating agency was not interested to make any public witness to be a part of the raiding team and thus there has been a deliberate disregard of the statutory safeguards relating to search and seizure on its part which renders the recovery proceedings unworthy of credence. Hence, all these facts give some doubt in the prosecution story.
21. Further, PW4 SI Vijay Pal has deposed in his crossexamination that after handing over the accused and other documents, he alone finally left the spot at about 10:15 p.m and SI Vipin Malik, HC Gopal and Ct. Ajay remained at the spot but, as per PW7 SI Vipin Malik, after registration of FIR, he reached the spot where he met SI Vijay Pal, Ct. Ajay and accused Pradeep Kumar and after interrogation, he arrested the accused, conducted his personal search, recorded his disclosure statement and prepared site plan at the instance of SI Vijay Pal. As per the arrest memo, accused was arrested at 10:30 p.m. If the accused was arrested at 10:30 p.m, then how PW4 SI Vijay Pal left the spot at 10:15 SC No. 682021 State Vs. Pradeep Kumar Page 17 of 22 p.m. However, as per the crossexamination of PW7 SI Vipin Malik, SI Vijay Pal and Ct. Ajay left the spot at about 11:00/11:15 p.m
22. Further, PW4 SI Vijay Pal has deposed in his crossexamination that all the proceedings were conducted at the bonut of his car under one street light of MCD yard gate but the said street light was not shown in the site plan however, which is in contrast to the deposition of PW7 SI Vipin Malik who has deposed in his crossexamination that all the proceedings were conducted while standing at the spot.
23. Furthermore, as per the testimony of PW6 Ct. Ajay, after registration of FIR, HC Gopal came back at the spot alone through one erickshaw which is again in contrast to the deposition of PW7 SI Vipin Malik who has deposed in his crossexamination that he reached at the spot at about 10:15 p.m along with HC Gopal through a private vehicle.
24. As per the crossexamination of PW3 Inspector Ram Kishore, they went to the spot through government vehicle i.e gypsy. However, the prosecution has also failed to produce either the log book of the official vehicle used during the investigation. Since the log books are maintained for recording the movement of the official vehicles, there should have been no difficulty at all in producing such evidence if indeed SHO has moved to the spot from his office in a government vehicle. This also creates a grave suspicion regarding the truthfulness of the case of the prosecution.
SC No. 682021 State Vs. Pradeep Kumar Page 18 of 2225. Furthermore, PW3 Inspector Ram Kishore has deposed in his crossexamination that he returned to the police station at about 8:20 p.m which is in contradiction to the deposition of PW4 SI Vijay Pal who has deposed in his crossexamination that SHO Ram Kishore left the spot at around 6:40 p.m. Further, PW4 SI Vijay Pal has deposed in his crossexamination that the contraband was recovered in the presence of ACP Anil Dureja as well as SHO Ram Kishore which is in corroboration to the deposition of PW3 Inspector Ram Kishore as well as PW5 HC Gopal. PW5 has also deposed in his crossexamination that IO had obtained the signatures of SHO and ACP on the recovery. However, the recovery memo does not bear the signatures of PW3 Inspector Ram Kishore which creates a serious doubt in the story of prosecution.
26. Further, as per the prosecution story, site plan Ex. PW4/F was prepared at the instance of SI Vijay Pal however, as per the deposition of PW5 HC Gopal, immediately, after their arrival at the spot, SI Vijay Pal left the spot and site plan was prepared by SI Vipin after the departure of SI Vijay Pal which also creates doubt in the story of prosecution.
27. The record reveals that as per personal search memo i.e Ex. PW5/B, two mobile phones were recovered, one mobile phone blue colour itel company with SIM card and other mobile phone black colour MI company with SIM card. It is pertinent to mention here that accused was the resident of Village Jandiali, near Kohari, Ludhiana, Punjab, PS SC No. 682021 State Vs. Pradeep Kumar Page 19 of 22 Sanewal and was apprehended at Uttam Nagar. If accused was apprehended with the contraband then same would have to be delivered to somebody and he must have called the person before leaving his house to whom it was to be sold or supplied. Further, as per the examination of PW8 Ct. Pawan Kumar, on 16.12.2020, SI Vipin Malik took two days PC remand of accused Pradeep Kumar and went to Bhilwara for the search of coaccused however, coaccused and source of Narcotics Drugs were not traced out. Further, in this regard, call details of accused should have been checked and verified but same has not been done in this case which shows that IO has not made any sincere efforts.
Attention of Court is drawn to the judgment titled as Masoom & Ors. Vs. State of NCT of Delhi, 2015 III AD (CRI) (DHC) 349 passed by Hon'ble High Court of Delhi wherein it was held that "23. The prosecution has not given any explanation as to why cellular evidence was not brought on record. It has come on record that A2 had conversation on mobile in his possession at IGI Airport. Personal search memo shows recovery of two Nokia mobiles, with Vodafone and Idea Chips. Similarly, on personal search of A1, one mobile make Fashion with two SIMs was recovered. The Investigation Officer did not attempt to collect call details records pertaining to these mobile phones to ascertain as to with whom, at what time and place the appellants were in regular and constant touch. Call Details Records were relevant SC No. 682021 State Vs. Pradeep Kumar Page 20 of 22 to ascertain appellant's location at the relevant time and their nexus with themselves and others". It is clear from the testimony of witnesses that no sincere efforts have been made to apprehend the source of contraband and recipient of same despite taking police custody remand of accused in the present matter.
28. Hence, the above said contradictions cast a grave doubt on his presence at the spot. From above discussion of testimonies of prosecution witnesses, it is clear that the witnesses have also created dent to the case of prosecution as all the witnesses are giving different versions though all were present at the same time together and were members of investigation team.
29. Hence, from above discussion, it is observed that there are major contradictions in the deposition of prosecution witnesses, the statement of official witnesses without corroboration from independent source cannot be believed to base conviction for stringent provisions of the NDPS Act. From above mentioned all the facts and circumstances and other discussions as detailed above, it becomes very clear that the present case is not such a case where the complexity of the accused has been proved beyond reasonable doubt. From the testimony of witnesses and above discussions, it is crystal clear that there is shadow of doubt upon the accused regarding commission of charged offence framed against him. Thus accused is required to be acquitted in the present case by giving him benefit of doubt. Thus on all SC No. 682021 State Vs. Pradeep Kumar Page 21 of 22 counts, guilt of accused has not been duly proved.
30. Hence, considering the overall facts and circumstances of the present and in view of the above observations, accused Pradeep Kumar is acquitted for offence punishable under Section 18 (c) of the NDPS Act by giving him benefit of doubt.
31. Accused has furnished bail bonds in terms of Section 437A Cr.P.C and shall remain in force for a period of six months from today.
32. Case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. File be consigned to Record Room, after due compliance. Digitally signed DEEPAK by DEEPAK WASON WASON Date: 2022.05.21 12:33:28 +0530 Pronounced in the open court (Deepak Wason) today i.e 21 May, 2022 st Special Judge (NDPS):SW District Dwarka Courts: New Delhi SC No. 682021 State Vs. Pradeep Kumar Page 22 of 22