Delhi District Court
State vs . Raj Kumar @ Raju on 14 May, 2019
FIR No. 2012017
P.S.: Paharganj
U/s: 27 NDPS Act
IN THE COURT OF SH. JITENDRA SINGH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
State Vs. Raj Kumar @ Raju
FIR No.: 2012017
P.S.: Paharganj
U/S: 27 of NDPS Act
Case ID No. 75452018
1. No. of the Case : 75452018
2. Date of Commission of Offence : 19.06.2017
3. Date of institution of the case : 04.06.2018
4. Name of the complainant : Constable HC Yogender
5. Name of accused, parentage & address. : Raj Kumar @ Raju S/o Sh. Kapoor
Chand, R/o; H.No. 3894, Chowk
Kaseruwalan, Paharganj, Delhi.
6. Offence complained or proved : U/s. 27 of NDPS Act
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Acquitted
9. Date of Final Order : 14.05.2019
JUDGMENT
1. Accused Raj Kumar @ Raju has been sent up to face trial for offence under Section 27 of NDPS Act with the allegations that on 19.06.2017, at about 10.40 am, Gali Dispensary, near Tempo Stand, Paharganj, Delhi, accused was found consuming smack, a narcotic drug or psychotropic substance with the help of panni, pipe and match box and as such had allegedly committed the offence under Section 27 of Narcotic Drugs and Psychotropic Substances Act 1985. After usual investigation, the charge sheet was filed in the court and provisions of Section 207 Cr. P.C was completed.
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2. Vide order dated 08.08.2018, the accused was charged for offence under Section 27 of NDPS Act, to which the accused pleaded "Not Guilty" & claimed trial.
3. In order to substantiate the charge, prosecution had examined two witnesses.
PW-1 ASI Chander Shekhar, who had proved on record the copy of FIR, which is Ex. PW1/A, rukka, which is Ex. PW1/B and certificate u/s. 65B of Indian Evidence Act, which is Ex. PW1/C. The said witness was not cross examined on behalf of the defence.
4. The other witness of prosecution was PW2 Constable Ram Singh, who had stated on oath that on 19.6.2017, he was posted at PS Paharganj as Constable. On that day, he was on patrolling duty alongwith HC Yogender and while patrolling at about 10:30am 10:45am, when they reached near Dispensary near Tempo Stand, where they noticed a person sitting near on chabutra, who was consuming smack with panni pipe and he was having a matchbox in between the fingers and was trying to lit the cigarette panni with his right hand. He requested some passersby to join the proceedings but none of them had agreed. He further deposed that after that they apprehended that person, who after interrogation disclosed his name as Raj Kumar, who is present in the Court today. He further deposed that when they were trying to apprehend the accused, the accused had thrown the panni pipe and the matchbox on the ground. He further deposed that after that he told the accused that he was caught red handed while consuming smack and that he was having doubt that he might be in possession of more smack and that he wanted to take search of him and accused was also told that before his search, 14.05.2019 Page 2 of 11 of Pages FIR No. 2012017 P.S.: Paharganj U/s: 27 NDPS Act he can take search of me and that if he wishes so, his search can be taken in the presence of a Magistrate or a Gazetted Officer and that it was his legal right. He further deposed that accused denied that he wanted his search to be conducted in presence of a Magistrate or a Gazetted Officer and he also refused to take search of him. He further deposed that one notice U/s 50 NDPS Act was also given to the accused by him in writing, the copy of which is Ex. PW2/A, bearing his signatures at point A. He further deposed that thereafter, IO searched the accused. But no more smack or any other incriminating article was recovered from the possession of the accused. He further deposed that thereafter, IO lifted the panni pipe, matchbox, matchsticks (810 were used and 810 were unused) and put the same in the matchbox and matchbox was put in a white cloth and a pulanda was prepared. Pulanda was sealed with the seal of 'VD'. FSL form was filled at the spot. Seal after use was handed over to him. He further deposed that sealed pulanda was seized vide seizure memo Ex.PW2/B, which bears his signatures at point A. He further deposed that after that, IO prepared a Tehrir Ex.PW2/C, bearing his signatures at pointA and handed over the same to him alongwith the sealed pulanda containing case property for registration of FIR. He further deposed that he handed over copy of FIR and original rukka to the IO at the gate of the PS. He further deposed that after that he alongwith HC Yogender , ASI Vijay Dutt and SHO Inder Kumar Jha reached at the spot. He further deposed that after that IO had also requested some public persons to join the investigation but none agreed. IO handed over the accused alongwith seizure memo case property to SI Vijay Dutt. He further deposed that after that IO prepared the site plan, which is Ex PW 2/D bearing his 14.05.2019 Page 3 of 11 of Pages FIR No. 2012017 P.S.: Paharganj U/s: 27 NDPS Act signature at point A at his instance and recorded his statement. He further deposed that accused was arrested vide memo Ex PW 2/E bearing his signature at point A and personal search of accused was also conducted, vide memo Ex PW 2/F, bearing his signature at point A. He further deposed that disclosure statement of accused also recorded, vide memo Ex PW 2/G, bearing his signature at point A. The said witness was cross examined on behalf of the defence.
5. No other witness was examined by the prosecution and after completion of prosecution evidence, all the incriminating evidence was put to the accused in the statement of accused recorded under Section 313 Cr. P.C. wherein while denying the allegations, the accused had taken the plea of "False Implication". No evidence in defence was led however by the accused.
6. I have heard Ld. APP for State and the accused, who has appeared in person and has also gone through the case file very carefully.
Ld. APP for the State submitted that in the present case, the accused is liable to be convicted for the offence under Section 27 of NDPS Act , on the basis of depositions made by various prosecution witnesses.
On the other hand, accused submitted that he has been falsely implicated in this case and case property has been falsely planted upon him and thus acquittal has been prayed for.
7. I have given a considered thought to the rival submissions made by Ld. APP for state and accused, keeping in view the material available on the judicial file.
8. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading 14.05.2019 Page 4 of 11 of Pages FIR No. 2012017 P.S.: Paharganj U/s: 27 NDPS Act reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
9. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story.
10. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: "22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
11. In the present case, the above said provision appears to have not been complied with by the prosecution. As per the prosecution version, at the 14.05.2019 Page 5 of 11 of Pages FIR No. 2012017 P.S.: Paharganj U/s: 27 NDPS Act time of the apprehension of the accused while he was consuming the smack with the help of punni pipe, PW- 2 Ct. Ram Singh alongwith HC Yogender were on patrolling duty in the area, but the said DD entry vide which they had left the police station for beat duty has not been brought on record. In my opinion, the prosecution was under an obligation to bring on record and prove the above said DD entry vide which the above said police official had left the police station office for patrolling duty, so as to prove the possibility of availability of PW2 Ct. Ram Singh and HC Yogender at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have brought on record & prove the DD entry by which the above said police official had left the police station so as to inspire the confidence regarding his availability/presence at the place of apprehension of the accused, since the said police official was under bounden duty to enter his departure & arrival from/at the police station by making a D.D. entry in that respect as per the aforesaid mentioned P.P. Rule.
12. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the relevant DD entry as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the raiding party.
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13. As per rukka and testimony of PW2 Ct. Ram Singh as well as HC Yogender before conducting the investigation in the instant matter asked the some passerby's to join the raiding party, but all of them left the spot after giving reasonable excuses without disclosing their names and addresses. Now as per rukka, it is clear that no serious attempt was made by the concerned police officials i.e. PW2 and HC Yogender to get independent public persons to join the police proceedings and of subsequent apprehension of the accused despite availability of such witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the raiding party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of seeking their initial assistance for joining the raid or later at the time of apprehension of the accused since after the apprehension of the accused, there was no possibility of accused escaping his arrest or crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the conceptualization of the raid on information from the secret informer and also at the spot of the arrest & search of the accused on the spot of apprehension by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments: 14.05.2019 Page 7 of 11 of Pages FIR No. 2012017 P.S.: Paharganj U/s: 27 NDPS Act In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under: "18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC". In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, 14.05.2019 Page 8 of 11 of Pages FIR No. 2012017 P.S.: Paharganj U/s: 27 NDPS Act the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
14. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
15. The prosecution has failed to prove that the investigating party had offered their own search to the accused or to any other member of the public before conducting the search of the accused, which led to the recovery of the smack, punni pipe and match sticks from the possession of the accused. It is not mentioned anywhere in the rukka that the police officials had offered their own personal search to the accused or to any other member of the public before conducting the search of the accused. The said contradiction on the aspect of the personal search by police officials (witnesses), so appearing in the testimony of PW2 Ct. Ram Singh and HC Yogender, who were member of beat/patrolling & investigating/raiding party, creates a shadow of doubt on the aspect as to in reality whether the member of the investigating/raiding party had offered their own search before searching the accused. The aforesaid contradiction makes it a probability that the case property might have been planted over the accused.
At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa"
14.05.2019 Page 9 of 11 of Pages FIR No. 2012017 P.S.: Paharganj U/s: 27 NDPS Act wherein it was held as under: "10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J.
279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search.
There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 & 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
16. Being guided by above said case law, it can be said that search of the accused by above said police official (s) i.e. members of the investigating/raiding party was in complete violation of the above said case law and the same can be said to be illegal & motivated, more so, in the circumstances as discussed herein above which otherwise makes the story of prosecution doubtful.
17. As per rukka and testimony of PW 2, the case property allegedly recovered from the accused was given to none else but to PW2 Ct. Ram Singh, who was the material prosecution witness being member of the raiding party & one of the witness to the alleged recovery of the smack, punni pipe and match sticks from the possession of the accused. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication & planting of the case property cannot be ruled out beyond reasonable doubt.
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18. In my opinion framed in view of the above mentioned discussion, it can be safely concluded that prosecution has failed to prove its case on judicial file beyond reasonable doubt. There do exist such doubts & unexplained holes in the prosecution story and as such accused is given benefit of doubt & is hereby acquitted of the charge framed against him. At request of the accused, his earlier bail bond is extended for the compliance of Section 437A of Cr.P.C.
File be consigned to record room after due compliance.
Digitally signed by JITENDRAAnnounced in the open court on 14.05.2019 JITENDRA SINGH Date:
SINGH 2019.05.14
15:26:18
(JITENDRA+0530
SINGH)
ADDI. CHIEF METROPLITAN MAGISTRATE
TIS HAZARI COURTS(C), DELHI
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FIR No. 2012017
P.S.: Paharganj
U/s: 27 NDPS Act
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