Delhi District Court
State vs . 1 Roof Ahmad S/O Sayeed Ahmad, on 21 October, 2010
IN THE COURT OF MANOJ JAIN
SPECIAL JUDGE (NDPS)
OUTER DISTRICT: ROHINI COURTS: DELHI
SC No.86/10
Unique ID No.02404R0437712006
FIR No. 51/06
PS Narcotics Branch
U/s 20/21/29/25 NDPS Act
State Vs. 1 Roof Ahmad s/o Sayeed Ahmad,
R/o Village Gingal, PS Uri,
District Baramula,
Jammu & Kashmir.
2 Gulam Qadir Bhatt,
S/o Sanaulah Bhatt,
R/o Village Rakh-e-Vitter,
PO Wachi, PS Lassipara,
District Pulwama,
Kashmir.
Date of Institution: 06.12.06
Date of conclusion of Arguments: 07.10.10
Date of pronouncement of Judgment: 21.10.10
JUDGMENT
1 Both the accused have been charge-sheeted by PS Narcotics Branch for commission of offence under Section 20/21/25/29 of Narcotic Drugs and Psychotropic Substances Act (herein after referred to as 'NDPS Act').
2 Case of the prosecution, briefly stated, is to the effect that on 15.06.2006 a secret informer came at PS Narcotics Branch and told SI Avinash Singh that four persons, FIR No. 51/06 PS: Narcotics Branch page 1 of 31 namely, Roof Ahmad Khan @ Roof, Mohd. Amin Dhar, Mohd. Amin Malha and Gulam Qadir Bhatt were residents of District Baramulla, Kashmir and they used to deal in heroin, charas and doda and that they used to bring the contraband from Kashmir and used to supply the same in Punjab and Delhi by transporting the same in truck. Informer further told that between 7.45 AM and 8.30 AM that day, Roof Ahmad, Amin Malha and Gulam Qadir would come in truck no. JK-03A-1419 and would bring heavy quantity of charas and heroin and would supply the same to one Lalu Langra @ Lovely at Outer Ring Road, Haider Pur, Delhi and if raided, they could be caught along with truck. Informer was produced before SI Sudhir Singh who was officiating as SHO, PS Narcotics Branch and he also verified about the information from informer and apprised ACP Sh. Mehar Singh telephonically who directed to carry out immediate legal action. DD No. 5A was recorded regarding receipt of information and was produced before SHO in compliance of Section 42 NDPS Act. Raiding party was prepared which consisted of SI Avinash Singh, HC Harcharan Singh, Ct. Parveen Kumar, Ct. Yogesh Kumar, Ct. Neeraj Kumar and Ct. Om Pal and driver Ct. Pooran Singh. Informer also accompanied the raiding party. They reached near Haider Pur turning at about 7.30 AM. En route, several passersby were requested to join the raiding party but they declined. Without wasting any further time, nakabandi was laid and all the members of the raiding party were briefed. At about 8.00 AM, said truck was found coming from the side of Karnal Bye Pass, FIR No. 51/06 PS: Narcotics Branch page 2 of 31 Delhi and took turn towards Haider Pur Village and stopped at a distance of 15-20 steps. Informer identified the truck. He also told that person, on the steering wheel of the truck, was Mohd. Amin Malha. There were two more persons in the front cabin of the truck along with driver and they both alighted down and informer identified them as Roof Ahmad @ Roof and Gulam Qadir Bhatt. One heavy bori was unloaded from the truck. Accused Gulam Qadir Bhatt stood near such bori. Roof Ahmad, after alighting down from the truck, went towards truck driver and starting conversing him from the driver side window and truck driver then handed over one plastic thaili to him. In the meanwhile, truck driver started the truck and SI Avinash indicated the driver of official gypsy to block the truck. Truck driver Amin Malha was able to smell something wrong and he immediately jumped from the truck and was able to dodge the police. Other two persons were, however, apprehended. Police team gave their introduction to them and told them about the information and they both were also served with notices u/s 50 NDPS Act and were apprised about their legal rights which they refused to avail. Bori, which was in the possession of accused Gulam Qadir Bhatt, was checked and it was found containing 30 KGs charas. Two samples of 250 grams each were drawn from such quantity. Bori, which was with accused Roof Ahmad, was also checked and it was found containing 3 KGs heroin. Two samples of five grams each were also drawn from such quantity. Pullandas were prepared and requisite documentation was done. Both FIR No. 51/06 PS: Narcotics Branch page 3 of 31 accused were arrested. Accused Roof Ahmad was taken on police remand in order to apprehend Mohd. Amin Malha but it did not yield any result. Efforts were also made to nab alleged receiver i.e. Lalu Langra and one Raj Kumar but even they could not be apprehended. Samples were sent to FSL and the contraband in question were confirmed to be charas and heroin respectively. It is in these circumstances that both the accused have been charge-sheeted.
3 Charge-sheet was filed in the Court on 06.12.2006.
4 Vide order dated 08.02.2007, accused Gulam Qadir Bhatt was charged u/s 20 NDPS Act and accused Roof Ahmad was charged u/s 21 NDPS Act. It will not be out of place to here that charge was amended by the Court of Sh. Virender Kumar Bansal, learned Special Judge (NDPS), North-West District, Rohini, Delhi. As per amended charge, accused Gulam Qadir Bhatt was ordered to be charged u/s 20 NDPS Act and in alternate u/s 22 NDPS Act and similarly accused Roof Ahmad was charged u/s 21 NDPS Act and in alternate u/s 22 NDPS Act. They both were also asked whether they wished to recall any witness, already examined before such amendment, but they answered in negative. It is also important to mention here that none of the accused has been charged u/s 29 NDPS Act.
FIR No. 51/06 PS: Narcotics Branch page 4
of 31
5 Prosecution was directed to adduce evidence and
examined eleven witnesses in all viz. PW1 HC Harcharan Singh (recovery witness), PW2 Ct. Parveen (recovery witness), PW3 SI Satish Rana (second investigating officer), PW4 Ct. Dharminder Singh (sample depositor), PW5 HC Jagdish Prasad (MHCM), PW6 HC Om Prakash (official from office of ACP, Narcotics Cell), PW7 Ct. Manoj Kumar (DD Writer), PW8 Insp. Sudhir Singh (officiating SHO PS Narcotics Branch), PW9 SI Avinash Singh (first investigating officer/recovery witness), PW10 Pradeep Kumar (official who was having charge of truck) and PW11 HC Ajay Kumar (duty officer).
6 Both accused, in their respective statements u/s 313 Cr.P.C., pleaded innocence and claimed that they have been falsely implicated. According to them, they both hailed from Jammu & Kashmir and police officials asked them to accompany them to PS for some inquiry. Two persons were already sitting at the PS and they were let off. They both claimed that they have been falsely implicated in the present matter and nothing was recovered from them. Accused Roof Ahmad also examined DW1 B. Deva Swamy (Manager, Ridge View Service Station) in his defence.
7 I have heard Ms. Purnima Gupta, learned Addl. P.P. and Ms. Sadhna Bhatia, learned Amicus Curiae for accused Gulam Qadir and Sh. Devinder Chowdhury, learned counsel for accused Roof Ahmad. It will be worthwhile to mention here FIR No. 51/06 PS: Narcotics Branch page 5 of 31 that case was at the stage of final arguments when it was received on transfer by this court.
8 Ms. Purnima Gupta, learned Addl. P.P. has contended that prosecution has been able to prove its case to the hilt. She has argued that testimony of all the three recovery witnesses clearly indicates that both accused alighted down from the truck and they both were carrying contraband in question. She has argued that possession of contraband stands proved and there is nothing to infer false implication. She has also contended that case property was immediately and appropriately deposited at malkhana and there was compliance of each and every mandatory provision of NDPS Act and no link evidence is missing. She has also argued that FSL result also clearly indicates contraband in question to be charas and heroin respectively. She has, therefore, contended that prosecution has been able to bring home the guilt of the accused persons beyond doubt and accused should be handed out severe sentence.
9 All the aforesaid contentions have been refuted by defence. Sh. Chowdhury has contended that both the accused persons have been falsely implicated. Ms. Sadhna Bhatia has also adopted similar arguments. According to defence counsels, both the accused persons were called at PS merely due to the fact that they belonged to Jammu & Kashmir and they have been falsely implicated and nothing was recovered FIR No. 51/06 PS: Narcotics Branch page 6 of 31 from them. Defence contentions can be summarized as under:
(i) There is no independent witness which clearly shows hollowness in the case of prosecution.
(ii) Raiding party consisted of seven police officials but for reason best known to the investigating agency, only three such witnesses were cited and examined.
(iii) Secret informer was not shy in coming in open and, therefore, he should have been cited as witness.
(iv) There are major contradictions appearing on record and the story put forwarded by prosecution becomes highly unbelievable and imaginary.
(v) Identity of samples is highly doubtful as it is not clear as to who had deposited the case property.
(vi) There is violation of Section 42 NDPS Act and Section 50 NDPS Act.
(vii) There is unexplained delay in sending the samples to FSL.
(viii) No investigation was made about the owner of the truck.
(ix) There are numerous interpolation and overwriting in the DD entries and relevant entries maintained in Registers No. 19 and FIR No. 51/06 PS: Narcotics Branch page 7 of 31 21 which clearly shows false implication.
10 I have given my thoughtful consideration to the rival contentions.
11 It is admittedly not a case of chance recovery. Police was acting on a specific tip-off. If prosecution case is to be believed then secret informer had come at PS Narcotics Branch on 15.06.2006 at 5.40 AM and told SI Avinash Singh about the information. He was accordingly produced before SI Sudhir Singh and then ACP Sh. Mehar Singh was telephonically intimated. Information was very specific and according to the information, contraband was to be brought in truck no. JK-03A- 1419. As per the information, contraband as well as truck could be apprehended if raid was conducted. Since a vehicle was to be intercepted, it was incumbent on the part of the investigating agency to have reduced the secret information in writing and to send the same to the senior police officials as per Section 42 NDPS Act. As per the challan, such information was reduced in writing by recording DD No. 5A. Such DD No. 5A has been proved as Ex. PW8/A. According to Insp. Sudhir Singh, information was reduced in writing by SI Avinash Singh and was placed before him and he forwarded the same to the senior officers. As per challan, informer had come at PS at 5.40 am and information was revealed to SI Avinash Singh immediately but the information was allegedly reduced in writing after talking with concerned SHO and ACP. It was FIR No. 51/06 PS: Narcotics Branch page 8 of 31 recorded in writing at 6.15 am. Thus it was not reduced in writing immediately. It was rather after due deliberation with senior officers. There was no impediment in recording the information forthwith and then to produce the informer before superior officers. SI Avinash is a senior officer who was capable of taking major decisions and moreover, finally as well, he was the in-charge of raiding team.
12 It is not explained by the prosecution as to why concerned ACP has not been examined. In his place, HC Om Prakash appeared and proved the reports u/s 57 NDPS Act as well as DD No. 5A. He merely deposed that as per diary register, said DD was received in the office of ACP vide entry no. 1096. He nowhere claimed that such DD No. 5A was ever seen or signed by ACP. Surprisingly, HC Om Prakash has no personal knowledge of the matter and entry as well, as he was not even posted in the office of ACP at that time. Moreover, ACP Mehar Singh was an important link because immediately on receipt of information, he had been telephonically apprised and he had directed for conducting immediate raid. For reason best known to the investigating agency, neither ACP was cited as witness nor examined. Thus, it does not stand substantiated to the hilt that such report i.e. DD No. 5A was seen and signed by ACP at all. It can, at best, be assumed that it was transmitted to his office but that does not really serve the purpose.
FIR No. 51/06 PS: Narcotics Branch page 9
of 31
13 As already noticed above, raiding party consisted of
seven police officials besides secret informer. There is no
explanation much less cogent one as to why only three such members were cited as prosecution witnesses. There are neither statements u/s 161 Cr.P.C. of remaining four police officials nor they were, naturally speaking, cited as witnesses. There was no reason to hold them back particularly when the case in hand pertains to recovery of heavy quantity. Defence counsel has contended that if material witnesses are held back by the investigating agency for totally undisclosed reasons then Court should draw adverse inference against the prosecution. I also do not find any reason to come to a different opinion.
14 As already noticed above, secret information was allegedly reduced in writing vide DD No. 5A. It was, therefore, expected that all the members of raiding party would depose in this regard as well. I have carefully seen the testimony of PW1 HC Harcharan Singh and PW2 Ct. Parveen. Surprisingly, they have not uttered even a single word in this regard. HC Harcharan Singh has deposed that he and SI Avinash Singh were present in the PS when informer came and informed SI Avinash Singh about the secret information. He then revealed contents of secret information. He deposed that thereafter SI Avinash Singh formed a raiding party and they all left PS along with secret informer in government gypsy. PW2 Ct. Parveen has also deposed that SI Avinash Singh had received secret FIR No. 51/06 PS: Narcotics Branch page 10 of 31 information and raiding party was prepared by SI Avinash Singh and they left PS along with secret informer.
15 Testimony of PW1 HC Harcharan Singh reveals that he was present with SI Avinash Singh when informer had come at PS and had apprised SI Avinash Singh about the secret information. Not a word has been whispered either by HC Harcharan Singh or by PW2 Ct. Parveen that on receipt of information, SI Avinash Singh had ever tried to apprise SI Sudhir Singh, officiating SHO about the secret information or that SI Sudhir Singh further apprised ACP Mehar Singh about the information. They have not uttered even a single word regarding reducing of secret information in writing or regarding DD No. 5A. This rather persuades me to hold that information was never reduced in writing. Undoubtedly, SI Avinash Singh has tried to make up the loss by deposing that information was reduced in DD No. 5A and Insp. Sudhir Singh has also supported him but if at all such fact had taken place then even PW1 HC Harcharan Singh and PW2 Ct. Parveen would be knowing the same. It is all the more important because when informer had come at PS and met SI Avinash Singh, at that time, HC Harcharan Singh was present with SI Avinash Singh. It, therefore, becomes apparent that there is no wholehearted compliance of Section 42 NDPS Act.
16 After the raiding party was prepared and raiding team left PS at 6.30 AM along with informer, HC Harcharan FIR No. 51/06 PS: Narcotics Branch page 11 of 31 Singh has deposed that they had reached at the spot via Dabri, District Centre Janak Puri, Outer Ring Road and on the way, IO requested few passersby and some passengers at bus stand of Mangol Puri red light to join the proceedings but none agreed and all such persons even did not disclose their names and addresses. Spot is not any isolated stretch and it is admitted fact that place of alleged apprehension of accused is busy area. It is also admitted fact that a petrol pump was also situated at a short distance and no employee of such petrol pump was ever asked to join the proceedings. Police has come up with stereotyped version which is not believable. No necessity was felt of recording names or addresses of the passersby who were allegedly requested by the investigating agency. No action was taken against them and all the police officials have churned out parrot-like version which does not seem be convincing. Informer had revealed about the names of persons who would be bringing contraband in heavy quantity and since the police team was having information in hand, it was expected that they would have made sincere and earnest efforts to join the independent witnesses. Nothing of that sort has been done at all.
17 The recovery in question is admittedly a huge one but it rather makes the task of police more onerous and strenuous. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness FIR No. 51/06 PS: Narcotics Branch page 12 of 31 imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution and simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses more so when they are available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. Reference be made to judgment cited as Pawan Kumar Vs. The Delhi Administration, 1989 CRLJ 127 DELHI. Reference in this regard be also made to two judgments of our own Hon'ble High Court cited as RATTAN LAL VS. STATE 32 (1987) DLT DELHI 1 and MOHD. JAVED VS. STATE I (2000) CCR 402 DELHI. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow.
FIR No. 51/06 PS: Narcotics Branch page 13 of 31 Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The stringent punishment prescribed by the NDPS Act clearly renders such a course imperative. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure keeping in view the punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect of law.
18 I have very minutely scrutinized the testimony of PW1 HC Harcharan Singh and PW2 Cr. Parveen. Their examination-in-chief is virtually in the same sequence. Informer was accompanying the raiding party and after the members of raiding party were briefed in detail at the spot and after the gypsy was parked and raiding party members took their respective positions, truck was found coming at about 8.00 AM. According to HC Harcharan Singh and Ct. Parveen, FIR No. 51/06 PS: Narcotics Branch page 14 of 31 two more persons were sitting in the truck and both these persons got down from the truck and they were carrying one heavy khaki color gunny bag. One of those persons carried the gunny bag in his hand and other person went to the driver of the truck and after having some conversation with the driver of the truck, he took from him one red and yellow color plastic panni and came to his associate and stood with him. He further deposed that truck driver started the truck and immediately at the instance of IO, driver of the gypsy put his gypsy in front of the truck whereupon the truck driver jumped from the truck ran away. He deposed that Ct. Neeraj Chased that person but that truck driver managed to escape and other two persons were apprehended. These are accused Roof Ahmad and Gulam Qadir Khan. HC Harcharan Singh further deposed that secret informer told IO that name of the truck driver was Mohd. Amin Malha. To the similar extent is the testimony of Ct. Parveen. Their testimony indicates that informer remained with the police team. None of them deposed that after indicating towards the truck and accused persons, informer had ever left the place. So much so even PW9 SI Avinash Singh has not told any such thing in his examination-in-chief. It rather indicates that secret informer was not shy in coming in open and, therefore, there was no reason whatsoever for not joining him in the investigation. He could have been very well made a prosecution witness. His testimony would have given a strong boost to the case of prosecution as testimony from neutral and unbiased corner FIR No. 51/06 PS: Narcotics Branch page 15 of 31 attains lot more importance.
19 In the case of Peeraswmi v. State NCT of Delhi, (Delhi) 2007(4) R.C.R.(Criminal) 339, it has been observed as under by our own High court:-
"The manner in which DD Ex.PW5/A has been recorded, casts doubt on the receipt of information itself. This doubt is further fortified from the testimony of PW-14, who stated that SI Raj Kumar had received telephonic information and communicated the same to him whereas Sub Inspector Raj Kumar stated that the information was received through a secret informer. The other factors which throw doubt on the story of prosecution is that the secret informers are nourished by the police to receive informations about the crimes. They are never brought face to face before the accused persons because that puts their lives in danger, neither their identity is disclosed to the courts and courts also do not insist upon their identity. But in the instant case, it is testified by Sub Inspector Raj Kumar that despite the fact that secret informer had given specific address where the trade of smack and charas was being carried out, the secret informer was made a part of the raiding party. He was taken to the spot and he also pointed out to the appellant Peeraswmi and at his pointing out the appellants were arrested. If the identity of the secret informer was not so secret and he could accompany police party up to the house and come face to face with the appellant, there is no reason FIR No. 51/06 PS: Narcotics Branch page 16 of 31 why he could not have been produced in the court for deposition. The entire story of secret informer in fact is falsified from the testimony of PW14, who stated that the information was received on telephone."
20 All the three recovery witnesses i.e. PW1 HC Harcharan Singh, PW2 Ct. Parveen and PW9 SI Avinash Singh have deposed regarding recovery, preparation of the documents at the spot, drawing of samples and sealing of pullandas. As per the clear-cut case of prosecution, after the recovery had been effected and after the samples were drawn, samples and main pullandas were sealed and case property was sent to PS immediately through Ct. Parveen Kumar. It has been specifically mentioned in rukka Ex. PW9/A as well. He was directed to hand over the case property and FSL form and copy of seizure memos to SHO in compliance of Section 55 of NDPS Act and rukka to the duty officer. PW2 Ct. Parveen has deposed so and according to him, he left the spot with rukka and case property, FSL form and carbon copies of seizure memo in the same official gypsy driven by Ct. Pooran Singh and reached at PS at 2.00 PM and handed over rukka to duty officer and remaining articles to SHO. PW8 Insp. Sudhir Singh has also confirmed the aforesaid fact and according to him, he entrusted the case property to MHC(M).
21 Let me, therefore, now come to the testimony of PW5 HC Jagdish. He was MHC (M) at the relevant point of time. However, he has come up with different version. He has FIR No. 51/06 PS: Narcotics Branch page 17 of 31 deposed that at about 2.25 PM, SI Sudhir Singh handed over him the pullandas D, E, F, FSL form, carbon copy of seizure memo having seals of 2CPS NB DELHI and 1 SHO NBR DELHI and he made entry in register no. 19 at serial no. 612. Such entry was made by him at 2.25 PM. However, in the next breath, HC Jagdish Prasad deposed that at about 10.00 PM same day, SI Satish Rana handed him over one carbon copy of seizure memo of heroin, FSL form and pullandas mark A-1, A- 2, B1 and B2 and pullanda C having said seals and he made entry at serial no. 612. Such fact is naturally not in consonance with the case of prosecution. As per case of prosecution, all the articles were brought to PS from the spot by Ct. Parveen and he had handed over the same to officiating SHO who, after affixing his seal and putting FIR number, handed over the same to MHC(M). According to the case of prosecution, all the pullandas of charas and heroin were deposited together with MHC(M) by SI Sudhir Singh in one go but MHC(M) had categorically deposed that pullandas pertaining to heroin and documents thereof were deposited with him at 10.00 PM (not at 2.25 PM) by SI Satish Rana (not by SI Sudhir Singh). SI Satish Rana had no occasion to see or deposit the case property at any point of time. He was only having the custody of personal search articles and could have deposited the same only but MHC(M) is found to be very certain and categoric and according to him SI Satish Rana himself had deposited the pullandas pertaining to heroin and FSL form thereof at 10.00 PM. His testimony rather indicates FIR No. 51/06 PS: Narcotics Branch page 18 of 31 that recovery had taken place at different times but this is not the case of prosecution at all. I have seen the register no. 19 also very carefully and copy thereof has been proved as Ex. PW4/A and even such entry indicates that pullandas pertaining to charas were deposited by SI Sudhir Singh at 2.40 PM and heroin was deposited by SI Satish Rana at 10.00 PM. So much so, he even signed against such entry. In witness box, he never claimed so. But as per record and as per MHC (M), he was having part property with him till 10 pm. Prosecution has miserably failed to explain such anomaly of piece-meal deposit. This witness was not cross-examined by the prosecution at all which means that prosecution admits the correctness of his version.
22 Moreover, entry in the register no. 19 was made at serial no. 612 and MHC(M) admitted in his cross-examination that there was overwriting at serial no. 612. He also admitted that there was overwriting at serial no. 611 also and it was observed by the Court that there was overwriting at serial no. 610 also. So much so, overwriting was found to there in entries at serial no. 606, 607 and 608. Things do not stop here as according to case of prosecution, samples were sent to FSL on 13.07.2006 and again there is overwriting with respect to date of dispatch as MHC(M) admitted that there was overwriting on the date of sending of pullandas and also that there was overwriting on the date of receiving of result and remnant of samples from FSL. Single overwriting can be FIR No. 51/06 PS: Narcotics Branch page 19 of 31 assumed to be the case of inadvertent mistake but when such over-writings appear in wholesale then eyebrows are bound to be raised.
23 It is not that over-writings are there in Register no. 19 alone. DD register is also full of same. Incident is of 15.06.2006. Naturally, there cannot be any entry pertaining to previous date so far present case is concerned. But there are number of such DD Enteries.DD No. 10A (Ex PW3/D1), DD No. 11A (Ex PW8/C), DD No. 12A (Ex PW11/C) and DD No. 13A ( Ex PW3/J) are of previous date. Surprisingly all these are duly attested by concerned ACP as well. These DDs were shown to SI Satish Rana during trial and he admitted that there even over-writings on these DDs. DD register was also brought before the court during trial. Its photocopy was retained. I have seen the same. Date on the top of such register is found mentioned in unusual manner. Date should have been 15.06.2006 but it has been mentioned as 14/15/6/06 and number 15 is again mentioned in denominator. It seems that some interpolation has been made subsequently. Surprisingly next day's DD register shows the date in normal manner i.e. as 16/6/06. This means that there was indeed something special about the relevant time period as maximum over-writings and cuttings are found to be there during that period only. PW 11 HC Ajay Kumar has not been able to give any satisfactory answer regarding these over-writings despite the fact that some of these were in his hand only.
FIR No. 51/06 PS: Narcotics Branch page 20 of 31 24 It would be pertinent to mention that when the contraband was recovered and seized at the spot, SI Avinash Singh affixed his seal of 2CPS NB DELHI and later on at PS, SI Sudhir Singh had affixed his seal of 1SHO NBR DELHI. As per challan, SI Avinash Singh had used his seal at the spot and thereafter he gave his seal to HC Harcharan Singh. Let me see as to HC Harcharan Singh has to say in this regard. In examination-in-chief, he has admitted that seal, after use, was handed over to him and thereafter the case property was entrusted to Ct. Parveen. However, in cross-examination, he came up with interesting fact. He claimed that seal was kept by SI Avinash Singh himself but when Ct. Parveen was leaving with the case property, seal was handed over to him. This answer given by him in the cross-examination indicates that SI Avinash Singh did not hand over his seal to HC Harcharan Singh. On the other hand, seal after use was given to Ct. Parveen. Ct. Parveen does not say so at all. Moreover, there was no point in handing over the seal to Ct. Parveen when Ct. Parveen was also handed over the case property. Since he was having seal as well as case property, he had every chance in the world to tamper with the case property. Purpose of sealing stood completely negated and frustrated.
25 Moreover, as per PW9 SI Avinash, he had given his seal to HC Harcharan Singh and HC Harcharan Singh had returned his seal to him on 23.06.2006. It was not appropriate on his part to have received back his seal before the samples FIR No. 51/06 PS: Narcotics Branch page 21 of 31 had been dispatched to FSL. In the case of MODH.SALEEM VS. DELHI__66(1997) DLT 826 it has been observed as under:-
"Normally, the seal should be handed over to the IO only after the case property has been dispatched to CFSL. In the non- observance of the safeguards by (i) not handing over seal to the independent witness, and (ii) further to deliver the seal to the independent witness, and (iii) further to deliver the seal to SHO before the dispatch of the sample to CFSL, the possibility of seal being tampered with and the substance being changed and subsequently containers being resealed cannot be ruled out".
26 It is also not clear as to where exactly writing work was done while police team was present at the spot. Moreover, all three important members of the raiding team were involved with the writing work. It is not made clear as to why rukka was not prepared by SI Avinash Singh himself in his own hand. Rukka was got prepared through Ct. Yogesh but Ct. Yogesh is not a witness in the present case. No reason has been assigned as to why services of Ct. Yogesh were taken. Notices u/s 50 NDPS Act were prepared at the spot and seizure memos were also prepared at the spot but it is not explained as to why seizure memo Ex. PW1/D pertaining to accused Roof Ahmad is in the hand of PW2 Ct. Parveen and other seizure memo pertaining to accused Gulam Qadir Khan is in the hand FIR No. 51/06 PS: Narcotics Branch page 22 of 31 of SI Avinash himself. Undoubtedly, there is no impediment in dividing the work but then there has to be some logical explanation behind such division of work. As per PW2 Ct. Parveen, writing work was done while sitting inside official vehicle. However, SI Avinash Singh has contradicted him as according to SI Avinash Singh, such writing work was conducted outside the vehicle on the bonnet of the vehicle. In the case of Dinesh Kumar Vs. State 1993 (1) CC Cases 267 (DEL), there were contradictions with respect to aspect of place of recording of proceedings and such discrepancies were found to be material particularly in the absence of corroboration from the neutral corner and accused was acquitted.
27 It is clear from the case of prosecution that driver of the truck was able to dodge the police and was able to flee away. This all happened despite the fact that a full-fledged raiding team had gone to the spot and police gypsy had blocked the truck then and there. SI Avinash was carrying weapon with him but he did not think it prudent to use the same and it has not been explained why? Moreover, it was only Ct. Neeraj who had allegedly chased him. Again, such Ct. Neeraj has not been made witness. He was also an important link and vital member of the raiding party but for reasons best known to the investigating agency, Ct. Neeraj was not cited as witness. It is not clear as to in which direction he had vanished. As per PW2 Ct. Parveen, Ct. Neeraj was not having FIR No. 51/06 PS: Narcotics Branch page 23 of 31 any physical disability and he chased such accused for a distance of one or two kms. According to him, accused had run towards open lane whereas according to SI Avinash Singh, driver had run towards the direction where there were some trucks on the road. Surprisingly, if at all such unfortunate thing had happened at the spot and that one accused was able to flee away, it was expected that police party would have immediately informed their superiors telephonically but nothing of that sort was done by SI Avinash Singh. Local police was also not alerted as if he was given safe exit by the team members only. Surprisingly, driver/Ct. Pooran Singh of official gypsy who was also member of the raiding party, did not do anything at all and merrily kept on sitting in his official gypsy and did not even bother to chase such truck driver. Story put forwarded by the investigating agency, therefore, does not seem to be credible enough.
28 It would be worthwhile to see as to what chemicals were noticed by FSL. Samples were initially sent to FSL during investigation and as per the report of FSL (Ex. P-X), samples were found to be of heroin and were found containing monoacetylmorphine, acetyl-codeine, diacetylmorphine, Phenobarbital and Alprazolam and percentage of diacetylmorphine was found to be 2.2 per cent and 2.5 per cent in two counterparts. During trial, another sample was drawn and was sent to FSL as per the direction of the Court and result of FSL has been proved as Ex. PY but in such FIR No. 51/06 PS: Narcotics Branch page 24 of 31 sample, FSL noted presence of paracetamol and caffeine also. It is indeed intriguing and surprising as to how these two constituents were not detected in the earlier counterparts of the same lot. It rather indicates that there is some tampering with the case property else there was no reason for there being existence of two new additional chemicals. Moreover, even percentage of diacetylmorphine stood drastically reduced to 0.33 per cent and 0.01 per cent. FSL expert has not been examined by the prosecution and anomaly, as discussed above, remains a mystery.
29 Moreover, as per the seizure memo, charas was found containing in a bori and it was in the shape of slab of brown color which were covered with leaves of corn (jinke uppar makka ke bhutte ka chhilka lipta hua tha). It was also mentioned that it was in semi liquid state (ardh gili avastha). It has also been mentioned in the seizure memo that after removing the leaves' cover, brown color slab was found to be charas when tested with the help of field testing kit and it was also giving smell of charas. I have seen the FSL result dated 18.10.2006 and a per this report, charas was found to be of dark greenish brown color piece of solid material wrapped in yellow color dry leaves. Thus, when it was received by FSL, its color was not brown but it was dark greenish brown and it was not in semi liquid state but rather it was in solid shape. Moreover, it is not explicable as to why charas was weighed along with these yellow color dried leaves alleged to be corn FIR No. 51/06 PS: Narcotics Branch page 25 of 31 leaves. These corn leaves are not part of contraband and do not attract any penal action under NDPS Act. Every care should have been taken at the spot and charas should have been weighed independent of such extraneous material. Nothing of that sort was done either. I would, however, like to say that PW1 HC Harcharan Singh deposed before the Court that brown color material was separated from the covers of bhuttas and then weight was found to be 30 KGs and in the similar manner, samples were taken but as already noticed above, report of FSL reveals that even leaves were recovered from the counterparts of sample which means that weight was carried out without removing the leaves. Moreover, if at all such covering of corn had been separated then it should have been brought before the Court during the trial but when the case property was opened, nothing of that sort was noticed. Moreover, first IO-SI Avinash Singh has nowhere deposed that he had separated such corn cover from the charas.
30 Learned defence counsels have contended that there is violation of Section 50 NDPS Act. However, it becomes very much apparent that Section 50 NDPS Act did not come into play in the present case. Recovery was not from the person of accused. Accused persons were allegedly carrying bori and polythene from which the contraband was recovered. Therefore, Section 50 NDPS Act does not stand attracted. Moreover, notices were prepared and served individually and there does not seem to be infraction of such provision though FIR No. 51/06 PS: Narcotics Branch page 26 of 31 there was no reason to have served accused with such notice. I would, however, like to add that despite service, it seems that SI Avinash did not make any effort to take physical search of accused. Contraband was allegedly recovered from bori and Panni and IO felt more than satisfied and did not even think of searching the person of accused. This job was later on done by SI Satish Rana.
31 It has also been argued that there is unexplained delay in sending the samples to FSL. Recovery took place on 15.06.2006 and samples were sent on 13.07.2006. Though delay can happen because priority letter is not received and even the FSL is heavily overburdened but keeping in mind the aforesaid peculiar facts of the case and also the fact that case pertained to commercial quantity, it was expected that investigating agency would not have wasted even a single second and would have sent the sample immediately to the FSL. In the case of MATLOOB VS. STATE OF DELHI ADMN. 67 (1997) DLT 372, it has been observed that sample should be dispatched to CFSL with least possible delay. In JARNAIL SINGH VS. STATE OF PUNJAB 2008 (4) JCC (NARCOTICS) 204 PUNJAB & HARYANA HIGH COURT, there was delay of 13 days and such delay was held to be fatal. In that case, Hon'ble High Court had extracted standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotic Control Bureau. Such instruction reads as under:
FIR No. 51/06 PS: Narcotics Branch page 27 of 31 "1.13 Mode and Time limit for despatch of sample to Laboratory.
The samples should be sent either by insured post or through special messenger duly authorized for the purpose. Despatch of samples by registered post or ordinary mail should not be resorted to. Samples must be despatched to the Laboratory within 72 hours of seizure to avoid any legal objection."
32 Moreover, in such type of cases, normally, police weigh the entire contraband first and then sample is drawn out. In the present case, situation was other way round. For the totally unexplained reasons, IO did not first weigh the entire quantity of heroin. He rather drew the samples first and weighed such samples and separately packed them and thereafter he had weighed the balance contraband. Such unusual act is unheard of.
33 Truck was seized at the spot but it seems to me that no sincere investigation was made with respect to the owner of the truck. I have failed to find out any statement u/s 161 Cr.P.C. showing as to who was owner of the truck. Truck was released on superdari as an application was moved by one Mohd. Ashraf Malha who claimed himself to be owner of the truck. As per reply to such application, investigating agency was of the view that truck was owned by Mohd. Afzal Tantary and he had executed power of attorney in the name of Mohd.
FIR No. 51/06 PS: Narcotics Branch page 28 of 31 Ashraf Malha and Mohd. Ashraf was brother of driver of the truck who had fled from the spot. Such registered owner was also cited as witness but he did not appear before the Court. On the other hand, one Pradeep Kumar entered into witness box as truck in question was financed one and since EMIs were not paid by the owner, truck was seized by the finance company. SI Satish Rana should have made further investigation. He should not have thought that since recovery had been effected, nothing further was required to be done. On accused was still at large. Moreover, mobile phones were recovered from the person of accused and he should have at least collected CDR. This would have thrown some more light and would have also revealed the location and movement of accused as per CDR. Except for recording few statements u/s 161 Cr.P.C., he did not do even a bit.
34 It is also not clear as to when SI Satish Rana had reached at the spot. According to him, he left PS at 2.00 pm. It is not possible because, Ct parveen has deposed that it took him one hour in coming back to PS and thus, he could not have returned before 2.15 pm. Duty officer has also contradicted SI Satish Rana. According to PW11 HC Ajay Kumar, he recorded FIR and thereafter handed over the same to Satish Rana. He also deposed that he took 2 ½ hours in recording FIR. This means that Satish Rana remained with him till 4.45 pm as Rukka must have been received by Duty Officer at 2.15 pm only. This belies the version of Satish Rana.
FIR No. 51/06 PS: Narcotics Branch page 29 of 31 35 Moreover, as far as heroin is concerned, second counterpart showed presence of diacetylmorphine as mere .01%. Total alleged quantity of heroin is 3000 gms and by extrapolating said percentage, the actual quantity of heroin comes to mere 0.3 grams. Small quantity is upto 5 gms which invites maximum substantive sentence of six months only. Accused Roof Ahmed is behind bars since 15.06.2006. Alternate charge would also fail as Phenobarbital and Alprazolam are not mentioned on Schedule I attached with NDPS Rules and, therefore, the possession thereof does not become penal under NDPS Act. Reference be made to Ouseph @ Thankachan Vs. State of Kerala (2004) 4 SCC 446 and Rajender Gupta Vs. State 123 (2005) DLT 55.
36 Be that as it may, fact remains that in view of my aforesaid discussion, both the accused are entitled to benefit of doubt. NDPS Act provides stringent punishment and, therefore, has adequate safeguards have also been incorporated so that the provisions are not misused by police. The accused would be fully justified in pleading for the strictest scrutiny of all materials and the enforcement of every procedural formality enjoined under statute. The Court must always remind itself that there goes a well settled principle of criminal jurisprudence that the fouler the crime, the stricter is the degree of proof. A higher degree of assurance is sine qua non to convict an accused. Reference be made to State of FIR No. 51/06 PS: Narcotics Branch page 30 of 31 Punjab Vs. Baldev Singh 1999(3) SCC 977. Accused are accordingly given benefit of doubt and are acquitted of all the charges levelled against them.
37 They be released from jail forthwith if not required in any other case.
38 Case property stands confiscated and be destroyed as per rules after expiry of the period of appeal or after awaiting the outcome of appeal, as the case may be.
39 File be consigned to Record Room.
Announced in the open Court On this 21st day of Oct. 2010.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer District: Rohini Courts: Delhi FIR No. 51/06 PS: Narcotics Branch page 31 of 31