Delhi District Court
Fir No. 135/16 State vs . Farooq 1/66 on 29 August, 2019
IN THE COURT OF MS. MANJUSHA WADHWA
ADDITIONAL SESSIONS JUDGE-03
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 135/2016
Under Section : 20 of NDPS Act
Police Station : Nand Nagri
Sessions Case No : 907/2016
Unique I.D. No. : 02402R04303516
STATE
..... PROSECUTION
Vs.
Farooq
S/o Sh. Shiraj
R/o H. No.E-127,
New Seema Puri,
Delhi
..... ACCUSED
Name and particulars of complainant :
Date of Institution : 10.05.2016
Date of reserving judgment : 21.08.2019
Date of pronouncement : 29.08.2019
Decision : Acquittal
FIR No. 135/16 State Vs. Farooq 1/66
JUDGMENT
1. Briefly stated, facts as per the prosecution are that on 10.02.2016, ASI Devi Ram/IO (PW-3), HC Sardar Singh (PW-4) and Ct. Sunil (PW-2) were on patrolling duty and at about 3.30 pm, they reached at Peeli Mitti Ground near TLM Hospital where they saw the accused sitting by the side of the road on a white plastic sack. They went near the accused and felt smell of ganja coming out of plastic sack. The accused was intercepted and the information in this regard was conveyed to SHO, who gave direction to conduct the proceedings. On interrogation, the accused told his name as Farooq s/o Siraj, r/o New Seema Puri, Delhi. IO/ PW-3 ASI Devi Ram prepared a notice u/s 50 NDPS Act, 1985 with the help of carbon process and apprised the contents of notice to the accused. The IO/ PW-3 ASI Devi Ram served carbon copy of notice upon the accused and offered search of patrolling party to the accused prior to his search. The accused was further apprised by IO/ PW-3 ASI Devi Ram regarding his legal right of calling Gazetted officer or Magistrate at the spot in whose presence his search can be conducted. The accused did not take search of the patrolling party and also refused to call the Gazetted officer or Magistrate at the spot. The accused informed that he is illiterate and can only sign.
FIR No. 135/16 State Vs. Farooq 2/66 1.1. IO/ PW-3 ASI Devi Ram wrote reply of the accused on the notice u/s 50 NDPS Act (Ex.PW-2/C) as stated by the accused and after writing, IO/ PW-3 ASI Devi Ram read over reply to the accused and the accused signed the reply. IO/PW- 3 ASI Devi Ram asked 5-6 passersby to join the investigation but none agreed. They went away without disclosing their names and addresses and showing their genuine concerns. The accused was searched by IO/PW-3 ASI Devi Ram but nothing incriminating was found in his possession. IO/PW-3 ASI Devi Ram opened the plastic sack, checked the same which was found containing ganja like substance having smell of ganja coming out.
1.2. IO/ PW-3 ASI Devi Ram sent PW-4 HC Sardar Singh to the Police Station to procure the electronic weighing machine, who collected the same from MHC(M), Police Station Nand Nagari and returned along with electronic weighing machine to the spot. IO/PW-3 stopped one Tata 407 at the spot. The wires of electronic weighing machine were attached with the battery of Tata 407 and it was made functional. The entire recovered ganja along with plastic sack(katta) was weighed and it was found to be 37 kg. The recovered ganja was mixed randomly and two samples of 1 kg each were taken out and kept in two transparent polythenes. The two polythenes containing the samples were kept in two transparent jars and the samples were wrapped in white clothes and two pullandas were FIR No. 135/16 State Vs. Farooq 3/66 prepared and sealed with the seal of DRS (Ex. PW-2/Article-1 and Ex. PW-2/Article-2) and the sealed samples were marked A and B. The remaining ganja i.e. 35 kg was sealed in the white plastic sack and the mouth of sack was wrapped by cloth and was sealed with the seal of DRS (Ex. PW-3/Article 1) and the sealed sack was marked C. The FSL form was filled up at the spot and seal impression of DRS was also affixed on the form. The seal after use was handed over to PW-4 HC Sardar Singh. The entire case property along with samples were seized vide seizure memo, Ex.PW2/B. 1.3. The IO/PW-3 ASI Devi Ram prepared a tehrir Ex.PW3/A and handed over the same to PW-2 Ct. Sunil. He also handed over three sealed pullandas, carbon copy of seizure memo and FSL form to PW-2 Ct. Sunil with the direction to hand over the same to SHO, PS Nand Nagari and hand over the tehrir to DO for registration of case.
1.4. PW-4 HC Sardar Singh remained at the spot along with IO/ PW-3 ASI Devi Ram and the accused was in custody of IO/ PW-3 ASI Devi Ram. PW-1 ASI Pradeep was posted as duty officer and his duty hours were from 4 PM to 12 midnight. At around 6.30 pm, Ct. Sunil (PW-2) handed over a rukka to PW-1 ASI Pradeep, which was sent by ASI Devi Ram and on the basis of the rukka, PW-1 ASI Pradeep registered FIR No.135/2016. The print out copy of FIR is Ex.PW-1/A. PW-1 ASI Pradeep made endorsement on the back side of rukka at point- X, Ex PW-1/B and also made relevant entry in this regard in DD FIR No. 135/16 State Vs. Farooq 4/66 register vide DD No. 15 and 17, copy of relevant page of register is Ex. PW-1/C. 1.5. On 10.02.2016 at about 6.40 pm, PW-2 Ct. Sunil met PW-8 Inspector Tarkeshwar Singh in his office, to whom he handed over two sealed plastic containers and one sealed plastic sack recovered from the accused; carbon copy of seizure memo and FSL form. PW-8 Inspector Tarkeshwar Singh (PW-8) had counter sealed all the three sealed pullandas and FSL Form with his seal of TS. He had also mentioned details of FIR on all the three sealed exhibits after asking from DO/ PW-1 ASI Pradeep. He called the MHC(M) (PW-7) in his office with register no. 19 and got deposited the case property in the malkhana after making entry no. 4633 in register no.19, Ex.PW7/A. He also lodged DD no. 16A, Ex. PW-8/A regarding the proceedings conducted by him.
1.6. PW-1 ASI Pradeep handed over copy of FIR and original rukka to PW-2 Ct. Sunil to deliver the same to PW-6 SI Rajender as further investigation was marked to him. After receiving the same, Second IO/PW-6 SI Rajender and PW-2 Ct. Sunil reached the spot where they met IO/PW-3 ASI Devi Ram and HC Sardar. The First IO / PW-3 ASI Devi Ram handed over the accused and the documents to second IO/ PW-6 SI Rajender. The second IO/ PW-6 SI Rajender had prepared site plan, Ex. PW-6/A at the instance of first IO/ASI Devi Ram. The second IO/SI Rajender (PW-6) prepared and served notice u/s 52 NDPS Act, 1985, Ex PW-6/B upon the accused and the FIR No. 135/16 State Vs. Farooq 5/66 accused was arrested at the spot vide arrest memo, Ex.PW2/A and personally searched vide personal search memo, Ex.PW2/B. The disclosure statement of the accused was also recorded as Ex PW-2/E. From personal search of the accused conducted vide memo Ex. PW-2/B, carbon copy of notice u/s. 50 NDPS Act (Ex. PW-2/F) and Rs. 50/- cash were recovered.
1.7. On 12.02.2016, second IO/ PW-6 SI Rajender prepared the report u/s. 57 NDPS Act which is Ex. PW-6/C. On 12.02.2016, Ct. Praveen (PW-5) Reader to ACP received report u/s. 57 NDPS Act regarding seizure of 37 kg ganja recovered from the accused and made entry in the daily diary register at Serial No.474 dated 12.02.2016 and produced before ACP on the same date, which was signed by the ACP. The said report signed by ACP is Ex. PW-5/A. Copy of relevant page of register bearing entry no. 474 from point Y to Y1 is Ex. PW5/B. 1.8. PW-9 Ct. Vikas after receiving instruction from second IO/SI Rajender Singh collected two sealed containers alongwith FSL form, copy of FIR and other documents from malkhana and deposited the same at FSL, Rohini vide RC no. 42/21/16. After deposing the same, Ct. Vikas (PW-9) had handed over the acknowledgement of case acceptance, Ex.PW7/C alongwith copy of RC no. 42/21/16, Ex. PW7/B to MHCM, CP. On 24.06.2016, two sealed parcels and report of FSL were deposited in malkhana by Ct. Anuj vide entry no. 4633 which is from point Z to Z1 on Ex. PW7/A. FIR No. 135/16 State Vs. Farooq 6/66
2. The FSL result dated 27.05.2016, confirmed the presence of Ganja in the sealed sample. Charge was framed against the accused under section 20 NDPS Act, 1985 on the premise that accused was found in possession of 37 kgs Ganja in contravention of NDPS Act, 1985.
3. The prosecution in order to prove the case has examined the following witnesses: -
A. MATERIAL WITNESSES 3.1. ASI Devi Ram/IO (PW-3), Ct. Sunil (PW-2) & HC Sardar Singh (PW-4) who were part of patrolling team and are witnesses of arrest. Pertinently, PW-2 Ct. Sunil deposed relevant facts when leading questions were put to him by Ld. Addl. PP for State. PW6 is SI Rajender Singh who is second IO of the case.
B. FORMAL WITNESSES 3.2 PW-1 is ASI Pradeep who was posted as Duty Officer on 10.02.2016 from 4.00 pm to 12.00 pm. PW-5 is Ct. Parveen who was Reader to ACP, Seema Puri. PW7 is ASI Prem Kumar who was posted as MHC(M) on 10.02.2016. PW8 is Inspector Tarkeshwar Singh, who was posted as SHO PS Nand Nagri, Delhi. PW-9 is Ct. Vikas who collected the samples from MHC(M) and deposited the same in FSL, Rohini, Delhi.
3.3. The testimony of prosecution witnesses is not being reproduced herein as crux of their examination in chief has FIR No. 135/16 State Vs. Farooq 7/66 been narrated hereinabove while stating the facts of prosecution. Their testimony would be appreciated while dealing with different aspects of the case.
4. DEFENCE UNDER SECTION 313 CR.PC 4.1. The incriminating circumstances were put to the accused under section 313 CrPC. The accused stated that he has been falsely implicated in the present case. He further stated that he was lifted from his house by Ct. Parmod and Ct. Vikrant and taken to PS Nand Nagri where he was produced before ACP Nand Nagri and was asked to work as informer. On his refusal, the then ACP directed the SHO PS Nand Nagri to implicate him in a NDPS case, whereafter, he was made to sign blank documents forcefully. On the basis of those blank documents, he was falsely implicated in this case. He also stated that he was earlier called by the police on 17.01.2016 and he was beaten to become informer for which MLC was also made on 17.01.2016.
4.2. The accused further stated that he also moved an application at a very initial stage with the prayer to summon the call details and location of members of the raiding party. The call details and location of the members of the raiding party were filed by the respective service provider which shows that none of member of the raiding party was present at the spot on 10.02.2016.
FIR No. 135/16 State Vs. Farooq 8/66 4.3. The accused also stated that he had studied upto 5th class and appearing for 10th class exam through National Open School. He further stated that he had not given any instructions to IO to write any reply on his behalf on the notice u/s 50 NDPS Act. He stated that he was neither present at the spot nor he was served with any notice u/s 50 NDPS Act. He admitted that the carbon copy of notice u/s 50 NDPS Act, Ex. PW2/F bears his signature at point C and C1 and original notice u/s 50 NDPS Act (Ex. PW2/C) also bears his signature at point X and Y but he stated that he was lifted from his house and taken to Police Station where he was made to sign blank documents forcefully.
5. Sh. U.A Khan, Ld. Advocate for the accused & Sh. Vikas Kumar, Ld. Addl. PP for State advanced various arguments which would be considered hereinafter, under separate heads.
6. COMPLIANCE OF SECTION 50 NDPS ACT, 2005 6.1. It is submission of ld. Counsel for the accused that the prosecution has not complied with the requirement of Section 50 of NDPS Act, 1985. On the other side, Ld. Addl. PP for State submitted that there was no such requirement as it was a case of chance recovery. It is his contention that the contraband 'Ganja' was recovered from the plastic sack upon which the accused was sitting, and therefore, compliance of Section 50 of NDPS Act, 1985 was not mandatory.
6.2. Before proceeding further, it is necessary to consider as FIR No. 135/16 State Vs. Farooq 9/66 to whether compliance of section 50 NDPS Act, 1985 was required to be done in case of chance recovery of contraband.
6.3. In State of Himachal Pradesh v Pawan Kumar 1 (2005) 4 SCC 350, a three judge Bench of Hon'ble Apex Court held that the search of an article which was being carried by a person in his hand, or on his shoulder or head, etc., would not attract Section 50 of NDPS Act, 1985.
6.4. The Hon'ble Apex Court In State of Rajasthan v. Parmanand, (2014) 5 SCC 345, has observed as:-
"12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanands bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
6.5. It is trite from the reading of the aforesaid judgments that non-compliance of Section 50 of NDPS Act has to be ignored in cases where recovery of contraband was not effected from person of the accused. It appears at the first blush that compliance of Section 50 of NDPS Act, 1985 is not mandatory FIR No. 135/16 State Vs. Farooq 10/66 in the instant case as it was a case of chance recovery and the contraband was recovered from the plastic sack upon which the accused was found sitting. Undoubtedly, the plastic sack would not be included within the ambit of "person" used in section 50 NDPS Act, 1985. In other words, the compliance of section 50 NDPS Act, 1985 is not required if the person of the accused is not searched thereafter. However, in the instant case, testimony of recovery witnesses makes it apparent that IO / ASI Devi Ram had also conducted personal search of the accused after serving notice u/s 50 of NDPS Act, 1985. Therefore, compliance of Section 50 of NDPS Act, 1985 was mandatory.
6.6. Apparently, carbon copy of notice under section 50 NDPS Act, 1985, Ex PW-2/F, which was served upon the accused, is replica of original notice, Ex.PW-2/C. The peculiar situation to note herein is that original notice u/s 50 of NDPS Act, 1985 Ex PW2/C as well as carbon copy of notice u/s 50 of NDPS Act, Ex. PW2/F 1985 bears reply of the accused. Meaning thereby, the notice was served after writing reply i.e. refusal of the accused. The very fact that the notice with reply was served upon the accused, the requirement of section 50 NDPS Act, 1985 appears to have been not duly complied with.
6.7. It is also pointed out by Ld. Counsel for the accused that the testimony of PW2 HC Sunil regarding the service of notice u/s 50 of NDPS Act on the accused is shaky inasmuch as he FIR No. 135/16 State Vs. Farooq 11/66 stated during cross-examination by Ld. Addl. PP for state that carbon copy of notice was served on the accused (paragraph 3 of cross examination dated 21.08.2018) whereas in his further examination in chief dated 24.08.2018, he stated that original notice u/s 50 of NDPS Act was served by the IO / PW-3 ASI Devi Ram upon the accused. Due to contradiction in the aforesaid two statement of PW-2 HC Sunil, he was again cross examined by Ld. Addl. PP for State when he admitted that carbon copy of notice u/s 50 of NDPS Act, Ex.PW2/F was served upon the accused and not the original as stated by him during identification of the notice.
6.8. Regarding the service of notice u/s 50 of NDPS Act, 1985, the testimony of PW2 HC Sunil raise doubt about its service in as much as he gave different version as to whether original notice u/s 50 of NDPS Act, 1985 or carbon copy of notice u/s 50 of NDPS Act, 1985 was served upon the accused.
6.9. It is also contention of ld. Counsel for the accused that reply on the notice under section 50 NDPS Act, 1985 was written by the IO / PW-3 ASI Devi Ram though the accused could read and write, which is apparent from the application, Ex. DW1/A as the same was written and signed by the accused.
6.10. In the statement under section 313 Cr.PC, the accused stated that he had studied upto 5th class and appearing for 10th class exam through National Open School. According to the FIR No. 135/16 State Vs. Farooq 12/66 accused, he was neither present at the spot nor he had given any instructions to IO to write any reply on his behalf on the notice u/s 50 NDPS Act. He also took a defence that his signatures were obtained forcefully on blank documents after lifting him from house.
6.11. The accused had also examined Sh. Manoj Kumar, Assistant Superintendent, Jail no. 11, Mandoli Jail, Delhi as DW-1 to prove that the accused was admitted in class Xth of National Institute of Open Schooling from Mandoli Jail in the academic year 2018-2019. DW-1 Sh. Manoj Kumar produced the hall ticket which was issued in the name of accused by National Institute of Open Schooling as Mark A and Mark B. He also testified that the accused Farooq had written an application addressed to Jail Superintendent, Jail no. 11, Mandoli, Delhi-93 and also signed the application at point B as well as affixed thumb impression on the application at point A in his presence. The said application is Ex. DW1/A. 6.12. Perusal of testimony of DW1 Sh. Manoj Kumar coupled with the documents produced by DW1 especially the application, Ex. DW1/A makes it apparent that the accused can read as well as write Hindi, and therefore, the refusal written on notice by the IO / ASI Devi Ram on the pretext that accused stated himself to be illiterate with knowledge of sign only, does not inspire any confidence.
FIR No. 135/16 State Vs. Farooq 13/66
7. MENTIONING OF FIR NUMBER ON THE SEIZURE MEMO 7.1. It is also contention of ld. Counsel for the accused that FIR number is mentioned on the original seizure memo though neither the first IO / PW-3 ASI Devi Ram nor the second IO / PW-6 SI Rajender Singh stated that they had mentioned the FIR number. He thus contended that the seizure memo has been prepared in the PS itself after registration of FIR and not at the spot.
7.2. In order to appreciate the aforesaid contention, it is apt to peruse the testimony of first IO/PW-3 ASI Devi Ram & Second IO/PW-6 SI Rajender Singh. The first IO / PW-3 ASI Devi Ram testified in his cross examination dated 31.10.2018 as "I had not made any addition or deletion in the documents prepared by me". The second IO / PW-6 SI Rajender Singh has also not deposed in his examination in chief that he had mentioned the FIR number on the seizure memo.
7.3. IO / PW3 ASI Devi Ram admitted in his examination in chief dated 27.08.2018 that he had handed over seizure memo and notice u/s 50 of NDPS Act to second IO / PW-6 SI Rajender Singh and second IO had prepared site plan at his instance. Second IO / PW- 6 SI Rajender Singh simply testified in his examination in chief dated 23.04.2019 that ASI Devi Ram handed over the documents pertaining to the present case to him. He neither described about the nature of documents FIR No. 135/16 State Vs. Farooq 14/66 handed over to him nor about mentioning of FIR number on the seizure memo handed over to him by the first IO / PW-3 ASI Devi Ram. As per deposition of first IO / PW3 ASI Devi Ram, he had not made any addition or deletion in the documents prepared by him. Even, the possibility of mentioning of FIR number by Second IO / PW- 6 SI Rajender Singh is also ruled out since he did not aver in this regard in his examination in chief dated 23.04.2019.
7.4. The Hon'ble High Court in the case reported as Giri Raj vs State 2000 (83) DLT 201 has duly observed that the prosecution case becomes highly doubtful, in case the document which were prepared prior to registration of FIR, bears the FIR number. Relevant para of the judgment reads as under:-
"It needs to be highlighted that the rukka (Ex.PW-7/A) recites that the alleged contraband was seized at 6.10 P.M. and the rukka was dispatched from the spot at 7.30 P.M. The FIR (Ex.PW2/A) shows that the same was registered at the police station at 7.40 P.M. Surprisingly, the appellant's personal search memo (Ex.PW-4/B) and the seizure memo (Ex.PW-4/A) bear the number of the FIR (Ex.PW-2/A). The number of the FIR (Ex.PW-2/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW-2/A had appeared on the top of the said documents, which were allegedly prepared on the spot FIR No. 135/16 State Vs. Farooq 15/66 before its registration. This gives rise to two inferences that either the FIR (Ex.PW-2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant."
7.5. It is explicit from the reading of the aforementioned judgment that in case FIR number is mentioned on the document prior to the registration of FIR, same would reflect upon the veracity of the prosecution version and creates doubt about recovery of contraband in the manner as alleged by the prosecution. In the instant case, FIR number is mentioned on the seizure memo though seizure memo stated to have been prepared prior to registration of FIR. Even the FIR number mentioned on the seizure memo and the contents of seizure memo appears to have been written by one person and with the same pen. In such eventuality, the seizure memo appears to have been prepared after the registration of FIR, which put dent in the case of prosecution.
8. MANIPULATION IN DEPARTURE ENTRY 8.1. It is contention of Ld. Counsel for the accused that departure entry of raiding team is manipulated as PW1 ASI FIR No. 135/16 State Vs. Farooq 16/66 Pradeep, who as per the case of prosecution made departure entry, was on duty from 4.00 pm to 12.00 midnight on 10.02.2016, however, the departure entry has been made at about 3.00 pm i.e. prior to his being on duty. PW1 ASI Pradeep deposed that on that day, duty officer had left before time and that is why he was assigned the duty of DO. However, no written order has been produced on record. It is further stated that there is manipulation in the register in so far as PW1 deposed during his cross-examination that he had put the line of demarcation between DD no. 11A and 12A with his hand and without use of scale. He also contended that PW1 ASI Pradeep had recorded DD no. 12A regarding departure entry but he had produced DD no. 12B in this regard. He thus stated that DD entry with respect to departure entry of raiding team is manipulated.
8.2. In this regard, it is apt to refer to the testimony of PW-1 ASI Pradeep, who deposed that on 10.02.2016, his duty hours were from 4.00 PM to 12.00 midnight. On 06.06.2019, PW1 ASI Pradeep testified that on 10.02.2016, he had recorded DD No. 12A regarding departure of ASI Devi Ram, HC Sardar Singh, Ct. Sunil from the Police Station for patrolling. He testified that the said DD was lodged at about 3.00 pm and he was made to sit as DO at 3.00 pm since the then duty officer left the office before time. He stated to have lodged the DD no. 12A in his writing in the rojnamcha and placed the copy of same as Ex. PW1/D with entry from point X to X1.
FIR No. 135/16 State Vs. Farooq 17/66 8.3. During cross-examination, he did not recall the name of DO who left before time. He testified that no written instruction was given to him by SHO to sit as DO prior to his duty. He deposed that his duty hours were from 4.00 pm to 12.00 midnight. He admitted that he had put line of demarcation between DD no. 11A and 12A with his hands and without the use of scale. He denied the suggestion that said DD entry was manipulated and fabricated in connivance with IO and SHO in order to suit the case of prosecution. He admitted that copy of DD no. 12B, Ex. PW1/D placed on file shows DD number as 12B and not 12A.
8.4. The testimony of PW-1 ASI Pradeep regarding recording of departure entry of raiding team on 10.02.2016 at 3.00 p.m. though his duty hours were from 4.00 PM to 12.00 midnight, is not trustworthy inasmuch as PW-1 ASI Pradeep did not have any written direction from SHO concerned in this regard. The fact cannot be overlooked that the entry in rojnamcha register is made at Sr. No. 12A whereas DD produced on record is 12B. Therefore, departure entry made on behalf of raiding team is also not free from doubt.
9. COMPLIANCE OF SECTION 42 NDPS ACT, 1985 9.1. It is contention of Ld. Counsel for the accused that the compliance of Section 42 of NDPS Act, 1985 has not been done in the present matter. On the other side, it is contention of Ld. FIR No. 135/16 State Vs. Farooq 18/66 Addl. PP for State that the compliance of section 42 of NDPS Act, 1985 is not required as Section 43 NDPS Act, 1985 is applicable in the facts of the present case.
9.2. As prior information was not available, provisions of Sec. 42 of NDPS Act, 1985 was not required to be complied with. Reference in this regard is made to the recent judgment of Hon'ble Apex Court passed in Crl. Appeal No. 459/2017 titled as SK Raju @ Abdul haque @ Jagga Vs State of West Bengal decided on 05.09.2018 wherein Hon'ble Apex Court observed as under: -
"6 We are unable to accept the submission made by the learned counsel for the appellant that Section 42 is at- tracted to the facts of the present case. In State of Punjab v Baldev Singh (1999) 6 SCC 172, Chief Justice Dr A S Anand speaking for a Constitution Bench of this Court, held:-
"The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before con- ducting search and seizure, Section 43 does not contain any such provision and as such while act- ing under Section 43 of the Act, the empowered of- ficer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful." [Emphasis supplied] FIR No. 135/16 State Vs. Farooq 19/66 In Narayanaswamy Ravishankar v Assistant Direc- tor, Directorate of Revenue Intelligence, (2002) 8 SCC 7 a three judge Bench of this Court consid- ered whether the empowered officer was bound to comply with the mandatory provisions of Section 42 before recovering heroin from the suitcase of the appellant at the airport and subsequently arresting him. Answering the above question in the negative, the Court held:
"In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be ap- plicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Sec- tion 42 of the NDPS Act is wholly irrelevant."
9.3. It is trite from the reading of aforesaid judgment that where there is reason to believe from personal knowledge or has prior information of possession of contraband, reason for such belief or information is required to be reduced in writing and copy is required to be sent to immediate senior officer within 72 hours. In the instant case, no prior information for pos- session of contraband with the accused was available and con- traband Ganja was recovered from the plastic sack upon which the accused was found sitting. Therefore, section 43 of NDPS Act, 1985 was applicable and non-compliance of section 42 NDPS Act, 1985 has no significance.
FIR No. 135/16 State Vs. Farooq 20/66
10. COMPLIANCE OF SECTION 52 NDPS ACT AND SECTION 57 NDPS ACT, 1985.
10.1. It is contention of Ld. counsel for the accused that the second IO/PW6 SI Rajender has not done compliance of section 52 and 57 of NDPS Act, 1985. He has drawn attention of this Court to cross examination of second IO/PW6 SI Rajender conducted on dated 23.04.2019 wherein he admitted that he had not mentioned in the charge-sheet about the service of notice under section 52 of NDPS Act upon the accused or that he had taken the personal search of accused or any article was recovered from personal search of the accused; or that he had interrogated the accused or that the accused had made disclosure statement; or that he had prepared and sent report under section 57 NDPS Act, 1985 to the higher officials. He denied the suggestion that he had not visited the spot or that he had not prepared the above-mentioned documents and for the said reason, he had not mentioned these facts in the charge- sheet.
10.2. On the other side, it is contention of Ld. Addl. PP for State that PW-5 Ct. Parveen had produced the report u/s 57 of NDPS Act, 1985 as Ex.PW5/A which bears the forwarding by SHO and approval by ACP 10.3 The testimony of Second IO/PW6 SI Rajender makes it evident that he has not mentioned the relevant facts in the charge-sheet i.e. about interrogation of accused, conducting FIR No. 135/16 State Vs. Farooq 21/66 search of accused, serving notice u/s 52 NDPS Act, interrogation of accused, arrest of accused, recording of disclosure statement of the accused and preparation of report u/s 57 NDPS Act, 1985. Had the Second IO/PW-6 duly conducted the aforesaid proceedings, he would have mentioned about the same in charge sheet. It is not expected from investigating officer of the case to be so callous in preparing the chargesheet. Rather, it is improbable to even assume that any prudent police officer would not mention about the aforesaid proceedings in the chargesheet if he had conducted the same. The testimony of Second IO/PW6 SI Rajender reflects serious doubt as to whether the aforesaid proceedings were at all conducted by him. Even the charge sheet records the time of arrival of patrolling team/raiding party on the spot as 8.30 pm instead of 3.30 pm. 10.4. Notwithstanding that the compliance with Section 57 of NDPS Act, 1985 is indicated from the report, Ex. PW5/A, the non-mentioning about the report in the chargesheet raise doubt on the story of prosecution. Be that as it may, compliance of Section 52 and 57 of NDPS Act, 1985 is directory and non- compliance by itself will not vitiate the prosecution if otherwise there is sufficient material to proceed against the accused.
11. PRESENCE OF PUBLIC PERSONS ON THE SPOT 11.1. It is submission of ld. Counsel for the accused that non joining of public person in the investigation raises doubt about FIR No. 135/16 State Vs. Farooq 22/66 the recovery of contraband from the possession of the accused.
11.2. It is further submitted that it is apparent from the testimony of recovery witnesses that the IO/ASI Devi Ram had not even asked the passersby to join the investigation at the time of giving notice under section 50 NDPS Act, 1985 and the passersby were asked to join the investigation only prior to taking search of the accused. He contended that despite the fact that the spot is surrounded by BSES office, TLM hospital, Rajiv Gandhi Super Specialty Hospital and Janta Flats, IO had not made any efforts to call any person from such places to join the investigation.
11.3. Ld. Addl. PP for the State submitted that sincere efforts were made to join public persons post apprehension of accused but none agreed to join. It is also submitted that mere non- joining of independent witnesses is no ground to discard the testimony of members of the raiding team who were discharging their duties.
11.4. Before considering the aforesaid contention of ld. Counsel for the accused, it is necessary to peruse the testimony of aforesaid witnesses in this regard.
11.5. Regarding the presence of public persons, PW-2 Ct. Sunil admitted that TLM hospital is adjacent to the spot. He further admitted that Rajiv Gandhi Super Specialty hospital is FIR No. 135/16 State Vs. Farooq 23/66 nearby to the spot. He also testified that office of Electricity is at a distance of 300-400 meters away from the spot. He admitted that Janta flats are situated infront of the spot. He testified that the public persons from TLM Hospital, Rajiv Gandhi Super Specialty Hospital, Janta flats and electricity office were not called by the IO to join the investigation. He volunteered that the said places are at some distance and IO had asked only the passersby to join the investigation but they refused.
11.6. IO/PW-3 ASI Devi Ram testified during his cross examination that prior to giving of notice under section 50 NDPS Act, 1985 he had not asked the passersby to join the investigation. It is his deposition that the passersby who were asked to join the investigation did not disclose their names and addresses. He testified that no notice in writing was given to them. He testified that he remained at the spot for about four hours during the proceedings. He admitted that public persons were not asked to join investigation while preparing seizure memo. He admitted that TLM hospital is nearby to the place of apprehension. He also admitted that Rajiv Gandhi Super Specialty Hospital is in front of the spot. He denied the suggestion that market is nearby to the spot. He volunteered that the market is about 250 meters away from the spot. He denied the suggestion that the electricity office is nearby to the spot. He testified that electricity office is adjacent to the Rajiv Gandhi Hospital. He had not called any official from the Electricity office or anyone from both the hospitals to join the FIR No. 135/16 State Vs. Farooq 24/66 investigation. He denied the suggestion that accused was not apprehended from the spot and that is why no one was called to join the investigation either from the hospital or the electricity office.
11.7. PW-4 HC Sardar Singh Meena deposed that prior to giving notice, IO had asked public persons to join the proceedings but none agreed. He testified that no notice in writing was given to the public persons who did not join the proceedings. Neither their names nor addresses were noted down by the IO. He admitted that TLM hospital is nearby the spot and testified that Rajiv Gandhi Super Speciality Hospital is at a distance of 500 meters. He denied the suggestion that Rajiv Gandhi Super Speciality Hospital is in front of the spot. He admitted that there is a small BSES office by the side of Rajiv Gandhi Super Speciality Hospital. He admitted that DDA Janta flats are in front of the spot. He testified that no officials of BSES, TLM hospital, Rajiv Gandhi Super Speciality Hospital or occupants of Janta Flats were called to join during the entire proceedings of search and seizure.
11.8. As per settled law, it is not proper to reject the case of prosecution for want of corroboration by independent witnesses, if the case made out, is otherwise true and acceptable. It has been held by the Hon'ble Apex Court in Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 that non joining of independent FIR No. 135/16 State Vs. Farooq 25/66 witness is not fatal to the prosecution case particularly when efforts were made by the investigating party to join public witness but none was willing. The Hon'ble Apex Court in the judgment, reported as Manu/SC/0568/2013 Kashmiri Lal Vs. State of Haryana, observed that ordinarily, the public at large show their disinclination to come forward to become witnesses but if the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. It is further observed that if in the course of scrutinizing the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him. This is also based on the principle that quality of the evidence weighs over the quantity of evidence, which is required for conviction and that can be based even on the testimony of sole eye witness.
11.9. Reference is also made to the judgment of Mohd. Masoom Vs. State of NCT of Delhi, Criminal Appeal 1404/11, decided by Hon'ble Delhi High Court on 09.04.2015 regarding the non-joining of public witnesses as :-
11. In the instant case, despite availability of independent public witnesses, no genuine and sincere efforts were made by the Investigating Officer to associate them. The explanation offered by the Investigating Officer does not inspire confidence. Secret information was received at around 09.30 a.m. at Crime Branch, Chanakyapuri.
Allegedly, A-2 was to receive a huge consignment of Heroin / smack at IGI Airport from Afghan Nationals who FIR No. 135/16 State Vs. Farooq 26/66 were to arrive in India by Afghan National flight at about 12.30 p.m. or thereafter. Apparently, the police officials had sufficient time to make sincere efforts to associate independent public witnesses in the raiding team. However, nothing was done. For the first time, when the raiding team reached Lajpat Nagar at about 11.30 a.m., some passers-by were allegedly asked to join the raiding party. They purportedly declined to participate taking the plea that they were busy in their own work. It has come on record that there were number of shops at Lajpat Nagar, where the police party had followed A-2s car. None of the shopkeepers was requested to be a part of the raiding team. Again, at 06.30 p.m., an attempt was allegedly made at the airport to join some public persons in the raiding team but none was willing and they left without disclosing their names and addresses. It is a matter of record that the raiding team remained at the spot till 03.00 a.m. It is strange that for about thirteen hours the Investigating Agency was not able to associate even a single independent public witness at any stage of the investigation. Admitted position is that there were number of police officials, government / private employees, Traffic Police Control Room, Prepaid Taxi- booth, CISF officials and shopkeepers, etc. at the crowded and busy airport. It is not explained as to why only the passers-by were requested to join the investigation. Even their names or addresses were not recorded and no action whatsoever was taken for their refusal to assist in the investigation. Apparently, the Investigating Agency were not interested to make any independent witness to be a part of the raiding team.
11.10. Adverting to the facts of the present case, the IO/ PW-3 ASI Devi Ram admittedly did not make any effort to join any FIR No. 135/16 State Vs. Farooq 27/66 public witness pre-apprehension of the accused. Even post- apprehension of the accused, it does not appear that the IO/PW-3 ASI Devi Ram made any genuine or sincere effort to associate them. The fact cannot be overlooked that the spot was surrounded by BSES, TLM hospital, Rajiv Gandhi Super Specialty Hospital or Janta Flats which is explicit from the testimony of recovery witnesses and despite that, the IO did not try to call any person from such places to associate any of them in the investigation process. As per testimony of IO/PW-3 ASI Devi Ram, the entire process took about 4 hours i.e. would have continued from 3.30 p.m. to 7.30 p.m, but the IO had not made any effort to join public person in the investigation except asking passersby and that too only once i.e. prior to search of the accused. When the entire process took about 4 hours, IO ought to have made proper efforts for joining of public witness in the investigation from places around the spot, not only prior to search but also pre-apprehension and during the investigation process. It appears that no genuine and sincere efforts were made by the Investigating Officer to associate independent public witnesses in the investigation process. No explanation has been put forth as to why the passers-by were only requested to join the investigation and that too once during the period of about 4 hours. The probability that the investigating agency was not inclined to join the public witness in the investigation cannot be ruled out.
FIR No. 135/16 State Vs. Farooq 28/66
12. NON-PRESENCE OF MEMBERS OF RAIDING TEAM AT THE TIME OF APPREHENSION OF THE ACCUSED 12.1. It is further submitted by learned counsel for the accused that members of the raiding team were not present on the spot at the time of apprehension of the accused at about 3.30 pm as apparent from the call detail record and tower location of members of the raiding team, which has been proved by the defence witnesses. It is further submitted that the members of the raiding team have not disputed that they were using the said numbers at the time of apprehension of the accused.
12.2. Ld. Counsel for the accused further submitted that the accused has been falsely implicated in this case and for the said reason, the accused had moved an application to summon the call details of the members of the raiding party and same was allowed by the Ld. Predecessor of this court vide order dated 17.09.2016 but despite that the concerned police official deliberately and malafidely not filed the CDR of members of the raiding party and took various objections before this Court. Even after passing of order dated 17.09.2016, the concerned police official filed reply dated 17.03.2017 stating that the accused has no right to seek call details of the police officials and relied upon the order passed by the Hon'ble High Court of Delhi in Crl. M.C. No. 406/2016 titled as Attar Singh Vs. State. He contended that the said order dated 17.09.2016 was FIR No. 135/16 State Vs. Farooq 29/66 confirmed by Ld. Predecessor of this court vide order dated 26.04.2017. Even thereafter, the concerned police officials did not submit the CDR and filed a report on 02.06.2017 stating that the CDR is not available beyond one year.
12.3. Ld. Counsel for the accused further submitted that finding no other alternative, the accused moved an application to initiate the action against erring police officials for deliberately not complying with the orders dated 17.09.2016 and 26.04.2017. In reply to the said application, a report was filed on 18.12.2017 reiterating that CDR is not available beyond one year. He contended that Ld. Predecessor of this Court was not satisfied with the report and vide order dated 18.12.2017, directed the SHO concerned to file parawise reply of the said application. The parawise reply dated 21.12.2017 was filed with CDR of members of the raiding party.
12.4. Ld. Counsel for the accused contended that the CDR of members of the raiding party makes it apparent that they were not present at the spot on 10.12.2016 at about 3.30 pm. 12.5. In order to prove the aforesaid contention, the accused examined Sh. Vinod Kumar, Nodal Officer, MTNL as DW2, who has proved the certified copy of call detail record of mobile no. 9868462668 registered in the name of Ct. Sunil Kumar for dated 10.02.2016 as Ex. DW2/C and certified copy of location chart as Ex. DW2/D. He also proved the CAF (customer application form) of Ct. Sunil Kumar as Ex. DW2/A and the self-
FIR No. 135/16 State Vs. Farooq 30/66 attested copy of I-Card of Ct. Sunil Kumar as Ex. DW2/B. In order to prove the aforesaid documents, he also placed on record the certificate u/s 65B of Indian Evidence Act as Ex. DW2/E. 12.6. The relevant chart of call detail record and tower location of Ct. Sunil Kumar for the particular period from 3.00 pm to 8.00 pm for 10.02.2016, produced by DW2 Sh. Vinod Kumar is reproduced hereunder as:-
CDR WITH TOWER LOCATION OF MOBILE NO. 9868462668 FOR 10.02.2016 IN THE NAME OF CT. SUNIL EXTRACTED FROM EX. DW-2/C & EX. DW-2/D AS:-
Telephone Telephone Call date time Call Cell Cal Tower No. No. durat ID l Location A Party B Party ion typ e 919868462 81950395239 20160210144 35 50551 MO GTB 668 9 546 C Hospital, Shahdara 918698479 91986846266 20160210161 10 37121 MT A-2/1 and 695 8 340 C A-2/2, Nand Nagri, Delhi 919868462 91918698479 20160210161 9 37121 MO A-2/1 & A-
668 695 423 C 2/2,Nand
Nagri,
Delhi
FIR No. 135/16 State Vs. Farooq 31/66
919810112 91986846266 20160210164 36 35342 MT Ashok
956 8 812 C Nagar,
Shahdara
919810112 91986846266 20160210164 17 35342 MT Ashok
956 8 913 C Nagar,
Shahdara
919810112 91986846266 20160210183 29 37121 MT A-2/1 and
956 8 811 C A-2/2,
Nand Nagri,
Delhi
919868462 91919810112 20160210192 264 8593 MO Dilshad
668 956 946 C Garden
919899769 91986846266 20160210193 53 50551 MT GTB
071 8 430 C Hospital,
Shahdara
917840009 91986846266 20160210193 22 8593 MT Dilshad
299 8 710 C Garden
919810112 91986846266 20160210200 103 8153 MT Anand
956 8 822 C Gram,
Kusht Rogi,
Kalyan
Samiti,
Tahir Pur,
Delhi -95/
Kusht
Ashram
Kodi
Colony,
Nand Nagri,
Delhi
12.7. DW2 Sh. Vinod Kumar also brought the certified copy of call detail record and tower location of mobile no. 9868369884 of Ct. Sardar Singh for dated 10.02.2016 and proved the same as Ex. DW2/G and Ex. DW2/H respectively. He also proved the FIR No. 135/16 State Vs. Farooq 32/66 CAF of Ct. Sardar Singh as Ex. DW2/F and I-card of Ct. Sardar Singh of Delhi Police as Mark X. He produced the certificate u/s 65B of Indian Evidence Act as Ex. DW2/I. 12.8. The relevant chart for the particular period from 3.00 pm to 8.00 pm for 10.02.2016 extracted from the call detail record and tower location of mobile No. 9868369884 of Ct. Sardar Singh, produced by DW2 Sh. Vinod Kumar, is reproduced hereunder as:-
CDR OF MOBILE NO. 9868369884 FOR 10.02.2016 IN THE NAME OF CT. SARDAR SINGH EXTRACTED FROM EX DW- 2/G & EX DW-2/H AS:-
Calling No. Called No. Call date time Call Cell Call Tower A Party B Party durati ID type Location on 919868369 9191988741 20160210144 24 35022 MOC Gandhi 884 8425 538 Nagar, Delhi 919582573 9198683698 20160210151 22 35022 MTC Gandhi 504 84 100 Nagar, Delhi 112258598 9198683698 20160210152 14 35022 MTC Gandhi 5 84 536 Nagar, Delhi 919811330 9198683698 20160210154 30 35763 MTC GTRDSILM 159 84 951 PR, Kanti Nagar Extension, Delhi 919868369 8108527920 20160210160 105 8481 MOC Anarkali, 884 241 648 Krishna FIR No. 135/16 State Vs. Farooq 33/66 Nagar, Delhi 919868369 8109990634 20160210162 132 35003 MOC Shahdara- 884 324 902 CBD, Near KKD Court 919868369 8107219930 20160210182 8 8153 MOC Nand Nagri, 884 015 137 Delhi 919868369 8107219930 20160210182 217 35373 MOC Sunder 884 015 200 Nagari 919868369 8109680116 20160210190 68 35373 MOC Sunder 884 781 042 Nagari 112258598 9198683698 20160210191 86 35373 MTC Sunder 5 84 037 Nagari 919868369 8109717225 20160210192 74 37123 MOC Nand Nagri, 884 972 557 Delhi 919868369 8109717225 20160210192 42 37123 MOC Nand Nagri, 884 972 852 Delhi 919811330 9198683698 20160210193 69 37123 MTC Nand Nagri, 159 84 252 Delhi 919868369 9191880059 20160210194 54 37121 MOC Nand Nagri, 884 5367 628 Delhi 919868369 9191981192 20160210194 79 35342 MOC Ashok 884 9299 935 Nagar, Delhi 12.9. The accused had also examined Sh. Pawan Singh, Alternate Nodal Officer, Vodafone Idea Ltd. as DW3, who had brought the CDR of the mobile No. 8586908532 of Devi Ram Sharma for the period from 09.02.2016 to 11.02.2016 and proved the same as Ex. DW3/C. He also proved the CAF of Devi Ram Sharma as Ex. DW3/A and self-attested copy of Voter I-Card of Devi Ram Sharma as Ex. DW3/B. FIR No. 135/16 State Vs. Farooq 34/66 12.10. DW3 Sh. Pawan Singh also proved CDR of mobile No. 9711513609 of Ravi Prakash Singh for the period from 09.02.2016 to 11.02.2016 as Ex. DW3/F and CAF of Ravi Prakash Singh as Ex. DW3/D. He also proved the certificate copy of driving license of Sh. Ravi Prakash Singh as Ex.
DW3/E. 12.11. DW3 Sh. Pawan Kumar Singh proved the certified copy of location chart of the aforesaid mobile Nos.8586908532 and 9711513609 as Ex. DW3/G. 12.12. The relevant chart for the particular period from 3.00 pm to 8.00 pm for 10.02.2016 extracted from the call detail record and tower location of mobile No. 8586908532 in the name of Devi Ram Sharma and mobile no. 9711513609 in the name of Ravi Prakash Singh, produced by DW3 Sh. Pawan Singh is reproduced hereunder as:-
CDR AND TOWER LOCATION OF MOBILE NO. 8586908532 FOR 10.02.2016 IN THE NAME OF DEVI RAM SHARMA EXTRACTED FROM EX DW-3/C & EX. DW3/G AS:-
A B Party Call Ca Cell ID Ca Tower Last Tower Party Teleph time ll ll location Cell ID Location Teleph one No du ty one rat pe No. io n 98107 858690 14:24: 38 404110018 Inc Mandoli 4041100 ESI 76212 8532 26 216162 Extensio 1825865 Dispens n, Delhi 1 ary, Nand FIR No. 135/16 State Vs. Farooq 35/66 Nagri, Delhi 11225 858690 15:27: 15 404110015 Inc GTB 4041100 GTB 85985 8532 59 342603 Enclave 1534260 Enclave Chowk, 3 Chowk, Delhi Delhi 99582 858690 16:15: 29 404110015 Inc Delhi 4041100 GTB 11251 8532 12 326142 State 1534260 Enclave Cancer 3 Chowk, Institute, Delhi Dilshad Garden, Delhi 85869 981086 16:17: 40 404110015 Ou Delhi 4041100 GTB 08532 1330 30 326142 t State 1534260 Enclave Cancer 3 Chowk, Institute, Delhi Dilshad Garden, Delhi 97185 858690 16:29: 17 404110015 Inc Delhi 4041100 Delhi 23148 8532 47 1 326142 State 1532614 State Cancer 2 Cancer Institute, Institute, Dilshad Dilshad Garden, Garden, Delhi Delhi VD- 858690 16:58: 1 404110014 S Nand 4041100 Delhi 61112 8532 36 254651 M Nagri, 1532614 State 3 S_ Delhi 2 Cancer Inc Institute, Dilshad Garden, Delhi 11225 858690 17:34: 33 404110018 Inc ESI 4041100 ESI 85985 8532 14 258651 Dispens 1825865 Dispens ary, 1 ary, FIR No. 135/16 State Vs. Farooq 36/66 Nand Nand Nagri, Nagri, Delhi Delhi 85869 112258 17:40: 32 404110012 Ou Mandoli 4041100 Mandoli 08532 5985 02 816162 t Extensio 1821616 Extensio n, Delhi 2 n, Delhi 85869 954095 17:40: 28 404110018 Ou Mandoli 4041100 ESI 08532 6175 54 216162 t Extensio 1825865 Dispens n, Delhi 1 ary, Nand Nagri, Delhi 85869 965435 17:44: 50 404110018 Ou ESI 4041100 -Do-
08532 7034 56 258651 t Dispens 1825865
ary, 1
Nand
Nagri,
Delhi
85869 997183 17:46: 34 404110018 Ou ESI 4041100 -Do-
08532 1151 52 258651 t Dispens 1825865
ary, 1
Nand
Nagri,
Delhi
98719 858690 18:04: 19 404110018 Inc Mandoli 4041100 Mandoli 84714 8532 25 216162 Extensio 1821616 Extensio n, Delhi 2 n, Delhi 88008 858690 18:16: 62 404110018 Inc Nand 4041100 Nand 70379 8532 39 218093 Nagri, 1821809 Nagri, Delhi 3 Delhi 91361 858690 19:44: 10 404110015 Inc Rajende 4041100 Rajende 68565 8532 16 1 319142 r Nagar, 1531914 r Nagar, Ghaziab 2 Ghaziab ad, UP ad, UP 85869 112258 19:46: 10 404110015 Ou Rajende 4041100 -Do-
08532 5985 22 3 319142 t r Nagar, 1531914
FIR No. 135/16 State Vs. Farooq 37/66
Ghaziab 2
ad, UP
91361 858690 20:20: 14 404110015 Inc Shalima 4041100 Shalima 68565 8532 25 340932 r Garden 1534093 r Garden Extensio 2 Extensio n, n, Ghaziab Ghaziab ad, UP ad, UP CDR AND TOWER LOCATION OF MOBILE NO. 9711513609 FOR 10.02.2016 (IN THE NAME OF RAVI PRAKASH SINGH) EXTRACTED FROM EX. DW-3/F & EX. DW-3/G AS:-
A B Dat Call Cal Call ID Ca Tower Last Cell Tower Party Party e time l ll Location ID Location Teleph Teleph dur ty one one ati pe No. No. on 971151 11225 10- 18:1 19 40411001 O 705 & 4041100 705 & 3609 85985 Feb 0:42 1 5328771 ut 706, 1532877 706, 201 Janta 1 Janta 6 Flats, Flats, Nand Nand Nagri, Nagri, Delhi Delhi 971151 92895 10- 18:1 88 40411111 O Janta 4041100 -Do- 3609 11629 Feb 9:43 1903168 ut Flats 1532877 201 GTB 1 6 Enclave, Nand Nagri, Delhi 971151 95824 10- 19:2 49 40411111 O Nand 4041111 ESI 3609 30035 Feb 5:00 1913936 ut Nagri, 1195865 Dispensa 201 Near 6 ry, Nand 6 Post Nagri, FIR No. 135/16 State Vs. Farooq 38/66 Office, Delhi Delhi 91361 97115 10- 19:3 45 40411111 In Nand 4041111 -Do-
68565 13609 Feb 0:53 1913936 c Nagri, 1195865 201 Near 6 6 Post Office, Delhi 98736 97115 10- 20:1 9 40411111 In ESI 4041111 -Do- 88539 13609 Feb 0:57 1958656 c Dispensa 1195865 201 ry, 6 6 NandNa gri, Delhi 91361 97115 10- 20:3 14 40411001 In 705 & 4041100 705 & 68565 13609 Feb 9:09 6 5328771 c 706, 1532877 706, 201 Janta 1 Janta 6 Flats, Flats, Nand Nand Nagri, Nagri, Delhi Delhi 78952 97115 10- 20:4 1 40411221 S 705 & 4041111 ESI 01644 13609 Feb 0:57 5328771 M 706, 1195865 Dispensa 201 S_ Janta 6 ry, Nand 6 In Flats, Nagri, c Nand Delhi Nagri, Delhi 98736 97115 10- 22:5 10 40411111 In ESI 4041100 705 & 88539 13609 Feb 1:54 1958656 c Dispensa 1532877 706, 201 ry, Nand 1 Janta 6 Nagri, Flats, Delhi Nand Nagri, Delhi FIR No. 135/16 State Vs. Farooq 39/66 12.13. Regarding the mobile no. 9711513609 in the name of Ravi Prakash Singh, Ld. Counsel for the accused submitted that the said mobile number was being used by Second IO/PW6 SI Rajender Singh, who admitted the same in his cross examination dated 23.04.2019 that he was using the mobile no. 9711513609 (Vodafone) on the date of incident i.e. 10.02.2016.
12.14. The issue which is now relevant for consideration is whether the other recovery witnesses were using the aforesaid mobile numbers at the time of apprehension of the accused with contraband.
12.15. PW2 HC Sunil has testified during cross-examination dated 19.02.2019 (para 8) that he was using mobile no. 9868462668 on 10.02.2016. However, he testified that he was not carrying mobile phone at the time of search and seizure.
12.16. IO/PW3 ASI Devi Ram testified in his cross examination dated 31.10.2018 (page 2) that he was having Samsung mobile phone having no. 8586908532 with camera and recording facility. He further admitted during his cross examination dated 21.01.2019 (para 10) that he was using the mobile no. 8586908532 at the time of recovery of contraband.
12.17. PW4 HC Sardar Singh Meena testified during his cross- examination dated 12.03.2019 that he was using mobile no. 9868369884 at the time when the accused was apprehended. He further deposed that he remained at the spot from 3.30 pm to 8.00 pm. FIR No. 135/16 State Vs. Farooq 40/66 12.18. Second IO/PW6 SI Rajender Singh admitted during cross-examination dated 23.04.2019 that he was using the mobile no. 9711513609 (Vodafone) on the date of incident i.e. 10.02.2016. He stated that he had not conducted any videography or photography of the proceedings at the spot. He denied the suggestion that his mobile location was not at the spot during the proceedings conducted by him at the spot between 7.00 pm to 8.00 pm. 12.19. From the testimony of aforesaid PW2 HC Sunil, IO/PW3 ASI Devi Ram, PW4 HC Sardar Singh Meena and Second IO/PW6 SI Rajender Singh, it is explicit that they were having the aforesaid mobile numbers on 10.02.2016. As per PW2 HC Sunil, he was not carrying his mobile phone at the time of search and seizure. Whereas, PW3 first IO/ASI Devi Ram testified that he was using the mobile no. 8586908532. PW4 HC Sardar Singh testified that he was using the mobile no. 9868369884 at the time of apprehension of the accused and he remained at the spot from 3.30 pm to 8.00 pm. Second IO / PW6 SI Rajender Singh also admitted the use of mobile no. 9711513609 (Vodafone), which was in the name of Ravi Kumar Singh, on the date of incident i.e. 10.02.2016.
12.20. The accused was apprehended at Peeli Mitti ground, near TLM Hospital, Sunder Nagri, Delhi with the contraband Ganja weighing 37 kgs.
FIR No. 135/16 State Vs. Farooq 41/66 12.21. According to PW-2 Ct Sunil, he was not carrying mobile phone at the time of search and seizure. The same does not appear to be plausible as the witness did not depose as to who else was using his mobile phone during the investigation process. Be that as it may, this court is not considering the CDR of Ct Sunil. In so far as tower location of mobile no. 9868369884 which was in the name of Ct. Sardar Singh is concerned, same changed from Gandhi Nagar, Delhi - Kanti Nagar Extension - Krishna Nagar - Shahdara(near KKD Court)- Nand Nagri during 2.45 pm to 6.21 pm. Thereafter, the tower location was of Sunder Nagari, Delhi for the period from 6.22 pm till 7.10 pm. Again at 7.25 pm, the tower location was of Nand Nagri till 7.46 pm and it changed to Ashok Nagar, Delhi at 7.49 pm. Pertinently, PW-4 Ct. Sardar Singh stated to remain present at the spot from 3.30 pm to 8.00 pm, but CDR & tower location of mobile phone of PW-4 Ct. Sardar Singh shows his presence at the spot i.e. Sunder Nagri from 6.22 pm till 7.10 pm. 12.22. The perusal of CDR of mobile no. 8586908532 for 10.02.2016 in the name of IO / PW-3 ASI Devi Ram shows that his tower location was at Mandoli Extension, Delhi at about 2.24 pm, which changed to GTB Enclave Chowk at about 3.27 pm, which further changed to Delhi State Cancer Institute i.e. near spot at about 4.15 pm and continued till 4.29 pm. It further changed to Nand Nagri at about 4.58 pm, again to Mandoli Extension at about 5.40 pm, which again changed to ESI FIR No. 135/16 State Vs. Farooq 42/66 Dispensary, Nand Nagari at about 5.44 pm, Mandoli Extension, Delhi at about 6.04 pm; Nand Nagri at about 6.16 pm; Rajender Nagar, Ghaziabad at about 7.44 pm and to Shalimar Garden Extension, Ghaziabad, at about 8.20 pm. 12.23. The tower location of mobile no. 9711513609 for 10.02.2016 in the name of Ravi Prakash Singh, which was being used by Second IO/PW-6 SI Rajender, shows that the tower location was at Janta Flat, Nand Nagri at about 6.10 pm which changed to GTB Enclave, Nand Nagri at about 6.19 pm; Nand Nagri, near post office at about 7.25 pm; ESI Dispensary, Nand Nagri at about 8.10 pm; 705 & 706 Janta Flats Nand Nagri at about 8.39 pm; ESI Dispensary Nand Nagri at about 8.40 pm & finally changed to 705 and 706, Janta Flats, Nand Nagri, Delhi at 8.51 pm. 12.24. The call detail record and tower location of mobile no. 8586908532 of IO / PW3 ASI Devi Ram shows that he was not stationed at particular place on 10.02.2016 during the period from 2.44 pm till 8.20 pm. It is apparent from tower location that the IO / PW3 ASI Devi Ram was moving from Mandoli Extension-GTB Enclave chowk- Delhi State Cancer Institute, Dilshad Garden-Nand Nagri-Mandoli Extension-Nand Nagri- Mandoli Extension- Nand Nagri- Rajender Nagar, Ghaziabad- Shalimar Garden Extension, Ghaziabad during the period from 2.24 pm till 8.20 pm. According to IO / PW3 ASI Devi Ram, he was using the aforementioned mobile number while he apprehended the accused at about 3.30 pm and he remained at FIR No. 135/16 State Vs. Farooq 43/66 the spot for about 4 hours for conducting the proceedings. In such factual backdrop of this case, the tower location of mobile no. 8586908532, which was being used by IO / PW3 ASI Devi Ram on 10.02.2016, should have been of the spot only i.e. near TLM hospital, Sunder Nagri, Delhi. However, the tower location has been fluctuating from one place to another which shows that the IO / PW3 ASI Devi Ram was not stationed at the spot for nearly 4 hours, as deposed by him in his cross-examination dated 31.10.2018.
12.25. Once the IO/PW3 ASI Devi Ram was not stationed at the spot, the presence or non-presence of other recovery witnesses at the spot is inconsequential. Be that it may, tower location of mobile no. 9868369884 in the name of Ct. Sardar Singh shows that he was also not stationed at particular place as tower location of his mobile phone was at Gandhi Nagar from 2.45 pm till 3.25 pm, which changed to Kanti Nagar Extension at 3.49 pm and then to Krishna Nagar at 4.06 pm, Shahdara at 4.29 pm, Nand Nagri at 6.21 pm, Sunder Nagari at 6.22 pm which continued till 7.10 pm. Thereafter, tower location of his mobile phone is of Nand Nagri from 7.25 pm to 7.46 pm and is of Ashok Nagar, Delhi at about 7.49 pm. 12.26. As per HC Sardar Singh, he was member of raiding team on 10.2.2016 and had apprehended the accused at about 3.30 pm at Peeli Mitti ground, near TLM hospital and was part of investigation with IO from 3.30 pm to 8.00 pm. Pertinently, during cross-examination, PW-4 HC Sardar Singh testified that FIR No. 135/16 State Vs. Farooq 44/66 he was directed to bring electronic weighing machine from PS at about 4.00 pm; he collected the electronic weighing machine at about 4.15 pm and returned to the spot at about 4.25 pm. He stated that he did not make any separate DD entry regarding collecting of electronic weighing machine from PS. He deposed that he was using connection of MTNL when the present case was registered. He confirmed using aforesaid mobile number at the time when the accused was apprehended. Had it been so, the tower location of the mobile phone used by PW-4 HC Sardar Singh would have only been of Peeli Mitti ground, near TLM Hospital. According to him, he had gone to PS at about 4.00 pm to collect the electronic weighing machine. The Police station is at Nand Nagri. At about 4.06 pm, the tower location of mobile phone of Ct. Sardar Singh is of Krishna Nagar, Delhi which changed to Shahdara, near KKD Court at about 4.29 pm and is of Nand Nagri at about 6.21 pm. Therefore, the deposition of HC Sardar Singh that he had gone to PS at about 4.00 pm and reached there at about 4.15 pm to collect the electronic weighing machine and thereafter he returned to spot at about 4.25 pm is not in tune with the tower location of the aforesaid mobile no. 9868369884 which was being used by him on the date of recovery i.e. 10.02.2016.
FIR No. 135/16 State Vs. Farooq 45/66 12.27 The fluctuating tower location of the mobile phone of
aforesaid witnesses during the investigation process also negates the case of the prosecution.
13. NO DD ENTRY IN POLICE STATION REGARDING PROVIDING ELECTRONIC WEIGHING MACHINE TO HC SARDAR SINGH:-
13.1. IO/ PW-3 ASI Devi Ram deposed during his examination in chief dated 27.08.2018 that he had sent PW-4 HC Sardar Singh to the Police Station to procure the electronic weighing machine, who collected the electronic weighing machine from MHC(M), Police Station Nand Nagari and returned along with electronic weighing machine to the spot. IO/PW-3 got one Tata 407 stopped at the spot. The wires of electronic weighing machine were attached with the battery of Tata 407 and it was made functional. The entire recovered ganja along with katta was weighed and it was found to be 37 kg.
13.2. It is contention of ld. counsel for the accused that electronic weighing machine could not be handed over to HC Sardar Singh without making DD entry in the Police station. In order to buttress his contention, he has drawn attention of this court to para 6 of cross examination of PW-4 HC Sardar Singh dated 22.11.2018 wherein he stated that no separate DD entry was made regarding collecting of electronic weighing machine from the PS. In his further cross-examination dated 12.03.2019, he testified that he did not recall the name of MHC(M) who FIR No. 135/16 State Vs. Farooq 46/66 issued the weighing machine. He testified that no entry was made by MHC(M) in his presence regarding the issuance of electronic weighing machine nor his receiving was taken. Further, PW3 ASI Devi admitted in his cross-examination dated 21.01.2019 (para 7) that weighing machine cannot be issued without making entry in the relevant register maintained at Police Station.
13.3. The testimony of IO/ PW-3 ASI Devi Ram read in conjunction with testimony of PW-4 HC Sardar Singh makes it clear that DD entry was required to be made before the issuance of Electronic Weighing machine, which has apparently not been done in the present case. Therefore, the deposition of IO/PW-3 ASI Devi Ram to the effect that PW-4 HC Sardar Singh was sent to Police Station to procure the electronic weighing machine, does not inspire any confidence.
13.4. Infact, the testimony of recovery witnesses is not trustworthy even to the effect that the electronic weighing machine was made operational by connecting it with the battery of TATA 407, which is not so stated in the statement u/s 161 Cr.PC. Same is apparent from the cross-examination dated 19.02.2019 of PW2 HC Sunil (paragraph 5) wherein he admitted that he did not state the aforementioned fact in his statement to the IO. Similarly, PW3 ASI Devi Ram in his cross-
examination dated 31.10.2018 (second page last two lines) admitted the same. PW4 HC Sardar Singh in para 2 of cross- examination dated 12.03.2019 testified that he had stated the FIR No. 135/16 State Vs. Farooq 47/66 aforesaid facts to the IO but it is not so recorded in his statement. The testimony of recovery witnesses especially PW2 and PW3 to the effect that they did not state about TATA 407 in statement U/s 161 Cr.PC creates suspicion as to whether they had stopped TATA 407 for the aforesaid purpose.
14. CONTRADICTION IN THE TESTIMONY OF PROSECUTION WITNESSES 14.1. It is submission of ld. Counsel for the accused that MHC(M) produced plastic sack having Gokul Brand written on it containing case property i.e. ganja during cross-examination of PW2 HC Sunil on dated 27.08.2018, whereas IO/PW3 ASI Devi Ram testified in his cross-examination dated 21.01.2019 that nothing was printed on the plastic sack which was of white colour and from which ganja was recovered. IO/PW3 ASI Devi Ram denied the suggestion while cross-examination dated 21.01.2019 (para 11) that different plastic sack was produced before the court during his deposition in order to suit the case of prosecution. Similarly, PW4 HC Sardar Singh admitted in his cross examination dated 22.11.18 that plastic sack was of white colour. He further testified that he did not notice any writing on the plastic katta (Page 1 para 2).
14.2. The variation in testimony of witnesses regarding identity of plastic sack also weaken the case of prosecution.
FIR No. 135/16 State Vs. Farooq 48/66 14.3. It is also pointed out by Ld. counsel for the accused that the prosecution witnesses deposed contrary to each other regarding time of deposit of case property and deposit of personal search articles of the accused with MHC (M) in as much as SHO/PW-8 Inspector Tarkeshwar Singh testified to have deposited the case property in Malkhana when Ct. Sunil came to his office at about 6.40 pm on 10.02.2016 whereas the MHC(M) PW7 ASI Prem Kumar deposed that case property and personal search articles of the accused were deposited together. In order to appreciate the said contention, it is necessary to peruse the testimony of SHO/PW-8 Tarkeshwar Singh & MHC(M)/PW7 ASI Prem Kumar.
14.4. SHO/PW-8 Inspector Tarkeshwar Singh deposed that on 10.02.2016, at about 6.40 pm, Ct. Sunil came in his office and handed over two sealed plastic containers, one sealed plastic katta stated to be recovered from accused Farooq, carbon copy of seizure memo and FSL form. He counter sealed all the three sealed pullandas with his seal of TS. He called the MHC(M) in his office with register no. 19 and got deposited the case property in the malkhana and entry No. 4633 was made in this regard in register no. 19. He had also lodged DD no. 16A, Ex.PW8/A regarding the proceedings conducted by him. In reply to leading question by Ld. Addl. PP for State, he admitted that he had written the details of FIR on all the three sealed exhibits after asking the same from Duty officer. He also admitted that he had also put his seal impression of TS on the FSL form.
FIR No. 135/16 State Vs. Farooq 49/66 14.5. During cross examination, he admitted that the sealed container, plastic katta and FSL Form are not mentioned in the DD no. 16A, Ex. PW8/A specifically. He did not recall whether his statement was recorded by the IO or not. He did not recall the colour of plastic katta in which case property was produced. He did not recall whether anything was printed on the plastic katta. He had not given any oral or written directions to produce the case property before the concerned court. The sealed plastic katta was not sent to FSL for examination. He denied the suggestion that no case property was produced before him or that he had not conducted any proceedings regarding case property and for the said reason, his statement was not recorded by IO to this effect.
14.6. Pertinently, PW7 ASI Prem Kumar, MHCM in his cross- examination dated 22.05.2019 stated that case property and personal search articles of the accused were deposited at the same time. He also deposed that signature of Inspector Tarkeshwar and SI Rajender were obtained at the same time. He testified that particulars were written on the case property when it was deposited. It is also his deposition that the seal of DRS and TS were already affixed on the case property when it was deposited. The testimony of PW7 ASI Prem Kumar (MHCM) and SHO / PW-8 Inspector Tarkeshwar Singh shows that there is material contradiction regarding time of deposit of case property. As per DD no. 16A lodged by SHO / PW-8 Inspector Tarkeshwar Singh, he had deposited the sealed FIR No. 135/16 State Vs. Farooq 50/66 exhibits with MHCM after Ct. Sunil brought the same in his office whereas as per MHC(M), the sealed exhibits were deposited alongwith the personal search articles of the accused. The said contradiction demolishes the story of the prosecution about the time as well as manner in which sealed exhibits and personal search articles of the accused were deposited in malkhana.
14.7. It is also contention of ld. counsel for the accused that PW-3 ASI Devi Ram deposed that he had informed SHO/PW8 Inspector Tarkeshwar Singh after apprehending the accused on his mobile phone whereas SHO / PW8 Inspector Tarkeshwar Singh testified in his cross examination that he had not received information from first IO regarding apprehension of the accused and recovery of contraband from the accused and stated to have derived knowledge of the present case from the Ct. Sunil when the case property was produced by Ct. Sunil in his office.
14.8. The testimony of PW3 ASI Devi Ram and SHO / PW 8 Inspector Tarkeshwar Singh shows that they deposed contrary to each other inasmuch as PW3 ASI Devi Ram stated to have sent the information to the SHO / PW 8 Inspector Tarkeshwar Singh regarding apprehension of the accused while as per SHO / PW8 Inspector Tarkeshwar Singh, he did not receive any such information. The difference in the testimony of prosecution witnesses raise serious doubt as to whether IO had informed SHO about apprehension of the accused. It also shows that there is no coherence in the testimony of witnesses about the FIR No. 135/16 State Vs. Farooq 51/66 procedure followed after the apprehension of the accused with contraband ganja.
15. FSL FORM AND SEIZURE MEMO 15.1. Regarding FSL Form and Seizure memo, PW-7 HC Prem Kumar proved the entry number 4633 in original register no. 19 as Ex.PW7/A. He testified that on 29.3.2016, two sealed transparent plastic containers were sent to FSL, Rohini through Ct. Vikas vide RC no. 42/21/16. He mentioned the same in the entry no. 4633, already Ex. PW7/A from point Y to Y1. After deposing the same, Ct. Vikas had handed over the acknowledgement of case acceptance alongwith the copy of RC to him. He had proved the copy of RC as Ex. PW7/B and copy of acknowledgement of case acceptance as Ex.PW7/C. He further testified that on 24.6.2016, two sealed parcels and report of FSL were deposited in the malkhana by Ct. Anuj, which is mentioned from point Z to Z1 in entry no. 4633 already Ex.PW7/A .
15.2. During cross examination, he testified that the case property and the personal search articles of accused Farooq were deposited at the same time. He further testified that signatures of Inspector Tarkeshwar and SI Rajender were obtained at the same time. Upon such deposition, Ld. Addl PP for the State sought permission to re-examine the witness, which was allowed. In response to suggestion, witness denied FIR No. 135/16 State Vs. Farooq 52/66 that case property was deposited firstly by Inspector Tarkeshwar and personal search articles of accused Farooq were deposited by SI Rajender after the arrest of the accused.
15.3. On the other side, PW-9 Ct. Vikas, in his examination in chief dated 28.05.2019, deposed that on 29.03.2016, he collected two sealed containers from the Malkhana PS-Nand Nagari in the present case alongwith FSL form, copy of FIR and other documents and got deposited the same at FSL, Rohini vide R/C no. 42/21/16. Pertinently, MHC(M)/PW7 HC Prem Kumar did not depose about handing over of FSL form, copy of FIR & other documents to PW-9 Ct. Vikas.
15.4. During cross examination, PW-9 Ct. Vikas testified that he had stated to the IO that MHCM had handed over the FSL form and other documents pertaining to the present case when the case property was handed over to him. However, he was confronted with statement Mark-X where it is not so recorded. He could not testify about the contents of sealed exhibits. He did not recall what was the impression of seal on the sealed exhibits. According to him, there were two seal impressions on the sealed exhibits. He testified that he had stated to the IO that the containers were wrapped with white cloth. He was confronted with statement Mark-X where it is not so recorded.
16. It is clear from perusal of the Entry number 4633 in register no. 19 as Ex.PW7/A that this entry is merely a repetition of the contents of seizure memo and it doesn't mention about FIR No. 135/16 State Vs. Farooq 53/66 the deposit of any FSL form and carbon copy of seizure memo. There is no discussion that FSL form was deposited with the MHCM and same was sent to FSL for authentication of seal. It is not mentioned either in the register no.19, Ex. PW7/A or in the road certificate, Ex PW7/B that FSL form was deposited or sent to FSL respectively. It is well settled law that in case FSL form is not deposited in the Malkhana or sent to the FSL, the case of prosecution will be highly doubtful. In the case of Radha Kishna Vs. State, 87(2000) DLT 106, Hon'ble High Court of Delhi has explained the importance of ensuring that the FSL form is duly sent with sample for testing. In para '26' of the Judgment, it was explained:
It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central Forensic Science Laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instance case, this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the FIR No. 135/16 State Vs. Farooq 54/66 CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/police station".
In Radha Kishan, after referring to Delhi High Court Rules, Part III Chapter 18B, regarding proper proof of custody of articles, it was held by this Court that the evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched. To the same effect are the judgments in Moolchand and Phool Kumar. Further, it has been held in Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT 577, that oral evidence which is contrary to the documentary evidence ought not to be relied upon. In the instant case, despite the prosecution witnesses asserting that the FSL form was prepared, not only is the FSL form unavailable on the record but the photocopies of the store room register and road certificate throw considerable doubts whether the FSL form was in fact prepared and dispatched. These documents are unreliable. For FIR No. 135/16 State Vs. Farooq 55/66 the above reasons, it is held that in the instant case the noncompliance with the mandatory requirement of preparation and dispatch of the FSL form with the sample sent for testing is fatal to the case of the prosecution.
17. Adverting to the facts of the present case, the deposit of FSL Form & carbon copy of seizure memo in malkhana is highly doubtful for the simple reason that the same is not mentioned in entry no. 4633 recorded in register no. 19 & Road Certificate. The testimony of SHO / PW-8 Inspector Tarkeshwar Singh to the effect that he had received the documents from Ct. Sunil and deposited the same with MHC(M) is not suffice in the eyes of law when the same is not mentioned in the entry no. 4633, Register no. 19, Ex. PW7/A and DD no. 16A, Ex.PW8/A recorded by PW-8 Inspector Tarkeshwar Singh in this regard. Though the seizure memo, Ex. PW2/D was prepared prior to registration of FIR, it bears FIR number for the reason best known to the IO. In addition to the above, seal was handed over to HC Sardar Singh, but admittedly, no handing over / taking over memo of seal was prepared. All the aforesaid facts create doubt about the prosecution case and possibility of tampering of the case property cannot be ruled out.
18. PRESUMPTION 18.1. From the conjoint reading of the provisions of Section 35 and 54 of NDPS Act, 1985, it becomes clear that if the accused FIR No. 135/16 State Vs. Farooq 56/66 is found to be in possession of the contraband article, he is pre- sumed to have committed the offence under the relevant provi- sions of the Act until the contrary is proved. According to section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise. Of course, such presumption would only arise once the initial burden of establishing a link of the accused with the offence has been established.
18.2. The Hon'ble Apex Court had observed in Bhola Singh Vs. State of Punjab, (2011) 11 SCC 653 as:-
"While dealing with the question of possession in terms of Section 54 of the Act and the presump- tion raised under section 35, this Court in Noor Aga Vs. State of Punjab and Anr. (2008) 16 SCC 417 while upholding the constitutional validity of Section 35 that as this Section imposed a heavy reverse burden on an accused, the condition for the applicability of this and other related sections would have to be spelt out on facts and it was only after the prosecution had discharged the ini- tial burden to prove the foundational facts that Section 35 would come in to play. Applying the facts of the present case to the cited one, it is apparent that the initial burden to prove that the appellant had the knowledge that the vehicle he owned was being used for transporting Narcotics still lay on the prosecution, as would be clear from the word "knowingly", and it was only after the evidence proved beyond reasonable doubt that he had the knowledge would the presump- tion under Section 35 arise."
FIR No. 135/16 State Vs. Farooq 57/66 18.3. Serious punishments are prescribed under the NDPS Act and therefore stricter the punishment, stricter the mode of proof. In the case of Noor Agha Vs. State of Punjab & Anr. 2008 (3) JCC (Narcotics) 135, the Hon'ble Court held that in a case arising out of the provisions of NDPS Act the legislature has provided very stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of statutory safeguards available to the accused.
18.4. In the instant case, the recovery witnesses have failed to establish beyond reasonable doubt that the contraband Ganja was recovered from the possession of the accused.
19. CUMULATIVE EFFECT OF EVIDENCE COUPLED WITH LEGAL POSITION
19.1 Noncompliance of section 50 NDPS Act, 1985 on the pretext that the accused could only sign, is proved otherwise in as much as the accused could write hindi as envisaged from the application addressed to Jail Superintendent, Jail no. 11, Mandoli, Delhi-110093, Ex DW-1/A. Further, carbon copy of notice U/s 50 NDPS Act, 1985 which was served on the accused, Ex. PW2/F, is replica of original notice, Ex. PW2/C. To the utter surprise of this Court, carbon copy as well as original FIR No. 135/16 State Vs. Farooq 58/66 notice bears reply of the accused. Meaning thereby, the service of the notice U/s 50 NDPS Act, 1985 would have been done only after writing reply of the accused. Such service of notice is just a formality and is not sufficient in the eyes of law.
19.2 The seizure memo bears FIR number and thus appears to have been prepared after the registration of FIR, which put dent in the case of prosecution.
19.3 The manipulation in recording of departure entry by the members of raiding team is also not ruled out as PW-1 ASI Pradeep was not on regular official duty at the time when he recorded departure entry of raiding team on 10.02.2016 at 3.00 p.m. His duty hours were from 4 pm to 12 midnight & he stated to sit as duty officer at 03.00 p.m. on oral instructions of SHO concerned, which does not inspire confidence. Further, the fact cannot be overlooked that the entry in rojnamcha register is made at Sr. No. 12A whereas DD produced on record is 12B.
19.4 The IO/PW-3 ASI Devi Ram appears to have not made any genuine or sincere effort to associate public persons from BSES, TLM hospital, Rajiv Gandhi Super Specialty Hospital or occupants of Janta Flats, which were near the spot except asking passersby and that too only once i.e. prior to search of the accused. When the entire process took about 4 hours, IO ought to had made proper efforts for joining of public witness in the investigation from places around the spot, not only prior to search but also pre-apprehension and during the investigation FIR No. 135/16 State Vs. Farooq 59/66 process. The probability that the investigating agency was not inclined to join the public witness in the investigation cannot be ruled out.
19.5. The fluctuating tower location of mobile phones used by members of raiding team is also fatal to the case of prosecution.
19.6 The testimony of IO/ PW-3 ASI Devi Ram read in conjunction with testimony of PW-4 HC Sardar Singh shows that DD entry was required to be made before the issuance of Electronic Weighing machine, which has apparently been not done in the present case.
19.7 The testimony of recovery witnesses is not trustworthy even to the effect that the electronic weighing machine was made operational by connecting it with the battery of TATA 407 as they did not state so in the statement u/s 161 Cr.PC.
19.8 The prosecution witnesses deposed contrary to each other regarding time of deposit of case property and deposit of personal search articles of the accused with MHC (M) in as much as SHO/PW-8 Inspector Tarkeshwar Singh testified to have deposited the case property in Malkhana when Ct. Sunil came to his office at about 6.40 pm on 10.02.2016 whereas the MHC(M) /PW7 ASI Prem Kumar deposed that case property and personal search articles of the accused were deposited together. The said contradiction demolishes the story of the prosecution about the time as well as manner in which sealed FIR No. 135/16 State Vs. Farooq 60/66 exhibits and personal search articles of the accused were deposited in malkhana.
19.9 The testimony of SHO / PW-8 Inspector Tarkeshwar Singh to the effect that he had received the documents i.e. carbon copy of seizure memo & FSL form from Ct. Sunil and deposited the same with MHC(M) is not suffice in the eyes of law when the same is not mentioned in the entry no. 4633, Register no. 19, Ex. PW7/A and DD no. 16A, Ex.PW8/A recorded by PW-8 Inspector Tarkeshwar Singh in this regard.
19.20 Even Road Certificate is silent of FSL form & seizure memo. Since the FSL form appears to have been neither deposited in Malkhana & nor sent to FSL, case of prosecution is highly doubtful. Seal was handed over to HC Sardar Singh but admittedly, no handing over / taking over memo of seal was prepared.
19.21 Though the seizure memo, Ex. PW2/D was prepared prior to registration of FIR, it bears FIR number for the reason best known to the IO.
19.22 All the aforesaid facts create doubt about the prosecution case and possibility of tampering of the case property cannot be ruled out.
19.23 The Second IO/PW6 SI Rajender has not mentioned the relevant facts in the charge-sheet i.e. about interrogation of accused, conducting search of accused, serving FIR No. 135/16 State Vs. Farooq 61/66 notice u/s 52 NDPS Act, interrogation of accused, arrest of accused, recording of disclosure statement of the accused and preparation of report u/s 57 NDPS Act, 1985. Had the Second IO/PW-6 conducted the aforesaid proceedings, he would have mentioned about the same in charge sheet. It is not expected from investigating officer of the case to be so callous in preparing the chargesheet. Rather, it is improbable to even assume that any prudent police officer would not mention about the aforesaid proceedings in the chargesheet if he had conducted the same. The testimony of Second IO/PW6 SI Rajender reflects serious doubt as to whether the aforesaid proceedings were conducted by the Second IO/PW6 SI Rajender. Apparently, the chargesheet mentions the time of arrival of patrolling team at the spot as 8.30 p.m. and not 3.30 p.m. as deposed by prosecution witnesses.
20. In view of the aforesaid discussion, case of the prosecution is highly doubtful. It is well settled law that benefit of doubt is always given to the accused. The accused is accordingly acquitted of charges leveled against him.
21. Before parting with the judgment, this court would be failing in its duty if this court does not express its anguish against the colourful exercise of power by the members of raiding team and misuse of legal position by them. The aforesaid factors including changing tower location of mobile phone used by the FIR No. 135/16 State Vs. Farooq 62/66 members of raiding team during the investigation process shakes the conscience of the court. The accused in present case has spent almost three years of his life in jail for no rhyme or reason. It is a glaring example where unscrupulous police officials while discharging their duties, abused their power as well as position and boast up the investigation. The members of raiding team curtailed the liberty of innocent citizen for the reasons best known to them.
22. The Hon'ble High Court of Delhi in Crl. App 334/2004 titled as Prema Devi and ors Vs State of Delhi has observed as under:-
"29. We are therefore not inclined to accept the dying declarations of deceased as they do not inspire confidence. As a result, the conviction of the appellants is set aside and both of them are acquitted of the charges under Section 498A/302/34 IPC.
30. Admittedly, the accused husband also stands convicted under Section 498A IPC and he had even completed the period of his sentence. The appellants herein have also suffered more than four years of RI, Thus, we are of the opinion that both of them deserve to be compensated by the State in monetary terms for being made to go through the rigors of trial, spanning over fourteen long years, during which period, they remained incarcerated for over four years before their sentence was suspended. In Sube Singh vs. State of Haryana and Others reported as (2006) 3 SCC 178, the Supreme Court held as follows:
FIR No. 135/16 State Vs. Farooq 63/66 "It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Civil Procedure."
31. We direct the Government of NCT of Delhi to pay a sum 1,00,000/- (One lac) to each of the appellants as compensation for false prosecution, as per the dictum in the case of Sube Singh (supra). This being a case of false prosecution of the appellants under Section 302/34 IPC, we also deem it appropriate to direct the Commissioner of Police, Delhi to hold an enquiry into the incident, fix the responsibility and file a report of the action taken within two months from the date of this decision.
32. The appeal is allowed and disposed of on the above terms. The appellants are on bail in this case. Their bail bonds and surety bonds stand cancelled. However, as per Section 437A Cr PC, both the appellants are directed to furnish their personal bonds in the sum of `25,000/- each with one surety of the like amount to the satisfaction of the learned Trial Court within a period of two weeks from today, for them to appear before the Supreme Court, as and when the said Court issues notice in respect of the appeal or petition filed against this judgment. The bail bonds shall remain in force for a period of six months.
FIR No. 135/16 State Vs. Farooq 64/66
33. A copy of this judgment along with the TCR be remitted to the learned Trial Court forthwith. The Registry shall also forward a copy of this judgment immediately to the Commissioner of Police for perusal and compliance.
34. List before the Roster Bench on 18.02.2019, to await the action taken report, as directed above."
23. It is not out of place to mention herein that NDPS Act, 1985 provide stringent punishment for the offenders to fight the nuisance associated with drugs. Under the NDPS Act, 1985, guilt of the accused is presumed which brings complete responsibility of proving an individual's innocence on him. In the considered opinion of this court, it's a high time when the entire proceedings should be impartial vis a vis right of the accused to fair investigation. The investigation process should be so designed that the innocent persons are not roped in unnecessarily and the power should not be misused to the detriment of innocent citizens. It is desirable to call Gazetted officer or Magistrate at the spot even if the accused give refusal for the same. Further, the entire investigation process, as a matter of prudence, should be photographed/videographed to obviate the implication of innocent citizens of the society.
24. This court cannot shut its eye to the incarceration of innocent person in jail on false and frivolous accusations and also cannot be spectator to injustice being perpetrated at the hands of unscrupulous police officials.
FIR No. 135/16 State Vs. Farooq 65/66
25. Keeping in view the observations made in the aforesaid judgment of Hon'ble Division Bench of High Court of Delhi, the DCP concerned is directed to hold an enquiry in the light of observations made in this judgment and fix responsibility of erring police official/s and file action taken report within six months from the date of this decision.
26. Put up for direction/compliance on 04.03.2020. Copy of this order be sent to DCP concerned for compliance.
Digitally signed by MANJUSHA MANJUSHA WADHWA
Location: Shahdara District,
Karkardooma Courts, Delhi
WADHWA Date: 2019.08.28 16:49:43
+0530
Announced in the open court (MANJUSHA WADHWA)
today on 29.08.2019 Additional Sessions Judge-03
Shahdara District,
Karkardooma Courts, Delhi
FIR No. 135/16 State Vs. Farooq 66/66