Delhi District Court
State vs Pooja on 25 September, 2020
IN THE COURT OF SH. AJAY GUPTA, SPL. JUDGE (NDPS)/EAST
KARKARDOOMA COURTS, DELHI
SC No.1743/2019
FIR No.99/19
U/s 21(b) of NDPS Act
PS Mayur Vihar
State Versus Pooja
W/o Late Sh. Danny
R/o 32/97, Trilokpuri
Delhi
Date of Institution 06.05.2019
Arguments heard 04.09.2020
Date of order 25.09.2020
JUDGMENT
1. The prosecution case in brief is that on 26.03.2019 when SI Manoj Kumar Tomar was present in his office, at about 5.00 pm, a secret informer came and informed that one lady namely Pooja is selling smack in front of her house at 32Block, Trilokpuri, Delhi. On receiving said information, SI Manoj Kumar Tomar produced the secret informer before SHO, who, after making inquiry from secret informer, directed SI Manoj Kumar Tomar to take necessary action. Thereafter, SI Manoj Kumar Tomar (the 1st IO) recorded the said secret information in compliance of section 42.2 NDPS Act vide GD No.49A and constituted a raiding party comprising HC Upender, Ct. Shiv Charan, W/Ct. Neetu & W/Ct. Sheela. SI Manoj Kumar Tomar collected IO Kit, electronic weighing machine and left PS along with aforesaid staff and secret FIR No.99/19 State vs Pooja 1 of 27 informer in govt. vehicle i.e. TATA 407 No. DL1LM 6772, after lodging DD No.50A. The vehicle was being driven by HC Upender. At about 6.15 pm, the raiding team reached at/near Gurudwara, 36 Block, Trilokpuri, Delhi and IO asked 56 passersby to join the raiding team but none agreed. Then IO took search of HC Upender and Ct. Shiv Charan and HC Upender took search of IO while lady constable took search of each other and vehicle was parked by the side of the road. Thereafter, IO briefed the raiding team members and at about 6.30 pm, they reached in front of 32 Block, Wireless Road, Trilokpuri, Delhi. At the instance of secret informer, raiding team member hid themselves in the park situated near the house of Pooja and started keeping eyes on the activities of the accused. After pointing out towards the house of Pooja, secret informer went inside the park. At about 7.00 pm, IO sent back W/Ct. Sheela as she was not feeling well. At about 7.10 pm, Pooja was seen outside her house and she was cordoned of by the raiding party. IO again asked 56 passersby to join the investigation but none agreed. IO informed Pooja about receipt of secret information that she might be in illegal possession of smack and apprised her about her legal right that she may be searched in presence of Gazetted Officer/Magistrate and that she can also take the search of the police party but she refused for the same. Thereafter, IO prepared notice u/s 50 NDPS Act, read over its contents to Pooja, made her understand and served the said notice to her. Pooja accepted the said notice and her signature/thumb impression was obtained on copy of the notice. IO informed the SHO. At about 8.15 pm, ACP Kalyanpuri arrived at the spot. SHO PS Mayur Vihar also reached at the spot. After inquiry, IO FIR No.99/19 State vs Pooja 2 of 27 directed W/Ct. Neetu to take search of Pooja. W/Ct. Neetu took search of Pooja inside her house and informed ACP that one white colour flowered purse was recovered from the bra of Pooja. On the direction of ACP, IO checked the said purse which was found containing 44 white paper purias. IO checked all the 44 purias and same were found containing brown colour powder which was smelling like smack. Thereafter, IO weighed three white papers on the electronic weighing machine and each paper was found to be 4.7 gram. The brown colour powder/smack of all the purias was put on a white paper and then it was weighed. On weighing, total weight was found to be 13.1 grams. The weight of recovered smack was found to be 8.4 grams. Two samples of 22 grams each were drawn and the same were converted into pullandas and same were given Mark S1 and S2. Remaining smack was also converted into a pullanda and it was given Mark A. All the pullandas were sealed with the seal of MKT and taken into possession vide seizure memo. Form FSL was filled at the spot and it was also affixed with the same seal. Thereafter, ACP left the spot. IO handed over the pullandas, FSL form and carbon copy of seizure memo to SHO who also put his seal of MKS on all the parcels and FSL form and left the spot along with aforesaid articles. IO prepared rukka and handed it over to Ct. Shiv Sharan for registration of FIR. Kayami regarding registration of FIR was lodged vide DD No.74. After FIR was registered u/s 21 NDPS Act, the further investigation was assigned to SI Vishvendra Kumar, the second IO of the case. Second IO came at the spot along with W/HC Raj Kumari and enquired SI Manoj who produced one carbon copy of notice u/s 50 NDPS Act, seizure memo of recovered FIR No.99/19 State vs Pooja 3 of 27 smack and handing over memo of seal MKT, to the second IO who mentioned FIR number and other particulars on the documents which were handed over to him by 1st IO. Second IO prepared site plan at the instance of 1st IO. Accused was interrogated and she was apprised of the ground of her arrest. Notice u/s 52 NDPS Act was served upon the accused. Being lady, accused was not arrested at the place of occurrence due to night time. Medical examination of accused was got conducted in LBS Hospital. Thereafter Accused was produced before Ld. DMM where she was interrogated and arrested with permission of Ld. DMM in this case. Exhibits were sent to FSL, Rohini. Pending FSL result, chargesheet was prepared against the accused u/s 21 of NDPS Act and filed before the court.
2. FSL result was filed on record. As per FSL result, exhibits S1 and S2 were found containing 'Diacetylmorphine', '6monoacetylmrphine', 'Acetylcodeine', 'Acetaminophen'. After compliance of section 207 Cr.P.C., charge u/s 21(b) of NDPS Act was framed against the accused to which she pleaded not guilty.
3. In order to prove its case, prosecution examined fourteen witnesses.
(3.1) PW1 is W/HC Raj Kumari. This witness deposed that on 26.03.2019 at about 10.30 pm, she along with SI Vishvendra Singh left PS and reached the spot i.e. in front of house no. 32/97 Trilokpuri, Delhi where SI Manoj Tomar, HC Upender and W/Ct. Neetu met them along with accused Pooja. SI Manoj narrated facts of the case to SI Vishvendra and handed over the prepared documents to him. SI FIR No.99/19 State vs Pooja 4 of 27 Vishvendra filled FIR number etc on those documents and signed the same. Thereafter, SI Vishvendra inspected the spot and prepared site plan at the instance of SI Manoj and relieved him after recording his statement. PW1 further deposed that in the meantime HC Manoj Tiwari reached the spot and handed over copy of FIR and original tehrir and certificate u/s 65B of Indian Evidence to the SI Vishvendra. HC Upender, W/Ct. Neetu were also relieved from the spot. IO interrogated the accused and served notice u/s 50 NDPS Act to her. She was got medically examined in LBS Hospital. Thereafter, accused was produced before Ld. Duty MM at her residence and with permission of court, IO SI Vishvendra interrogated and arrested the accused at about 3.35 am (27.03.2019) vide arrest memo Ex.PW1/A. Personal search of accused was conducted by her behind the stairs protecting her decency vide personal search memo Ex.PW1/B. In personal search, original notice u/s 50 NDPS Act and original notice of section 52 NDPS Act of this case were recovered. IO obtained one day JC remand of the accused and recorded disclosure statement of accused vide memo Ex.PW1/C. Thereafter, accused was sent to JC.
(3.2) PW2 W/Ct. Neetu, PW4 HC Upendra and PW6 Ct. Shiv Charan are the members of raiding team and they have deposed more or less as discussed in para no.1 of the order.
(3.3) PW3 ASI Jai Prakash Singh is the Duty Officer, who lodged present FIR, copy of which is Ex.PW3/G. He also brought on record DD No.49A Ex.PW3/A, copy of DD No.50A Ex.PW3/B, copy of DD No.80A Ex.PW3/C, copy of DD No.34B Ex.PW3/D and copy of DD No.36B FIR No.99/19 State vs Pooja 5 of 27 Ex.PW3/E and copy of DD No.40B Ex.PW3/F. (3.4) PW5 is HC Manoj Kumar. This witness deposed that on 26.03.2019, at about 11 pm, Duty Officer (PW3) handed over copy of FIR, rukka and certificate u/s 65B of Indian Evidence Act and directed to deliver the same to IO. Thereafter, he reached the spot i.e. 32 Blocks, Trilokpuri in front of House No.32/97 and produced the aforesaid documents to IO SI Vishvendra Kumar. Thereafter, SI Manoj, HC Upender and Ct. Neetu left the spot. PW5 also deposed that SI Vishvendra served notice u/s 52 NDPS Act Ex.PW1/E to the accused. PW5 further deposed more or less on the lines of PW1.
(3.5) PW7 is ACP Sh. Subodh Kumar Goswami. This witness deposed that on 26.03.2019, on the instructions of Sr. Officers, he reached at the spot i.e in front of H.No. 32/97 Trilokpuri, Delhi at about 8.15 p.m where SI Manoj Tomar, W/Ct Neetu alongwith other staff and accused Pooja met him. Insp. Manoj Sharma, SHO PS Mayur Vihar also reached at the spot. He made enquiry from accused and instructed W/Ct Neetu to conduct the search of accused. PW2 W/Ct. Neetu took the search of the accused inside her house and after taking her search, she came out and produced a white flowered purse before him (PW7) stating that same was recovered from wearing bra of accused. SI Manoj Tomar checked the recovered purse from which some paper purias were recovered. On being counted the same were found to be 44 purias. On opening the same, brown colour powder was found in the purias and same was smelt and found to be smack. SI Manoj Tomar weighed the contraband which was found to be 8.4 grams. After FIR No.99/19 State vs Pooja 6 of 27 sampling, sealing and seizure of the case property by SI Manoj Kumar, PW7 left the spot.
(3.6) PW8 is HC Ram Karan Tiwari. This witness brought on record GD No.49A and report u/s 57 NDPS Act on record and deposed that as per record, GD No.49A was diaried at sl. no.1597 on 26.03.2019 and same was seen and signed by the then ACP. The GD No.49A is Ex.PW8/A. PW8 also deposed that report u/s 57 NDPS Act was diaried at sl. no.1626 on 27.03.2019 and it was also seen and signed by the then ACP. The report is Ex.PW8/C and relevant entry is Ex.PW8/D. (3.7) PW9 is ASI Somdutt who deposed that on 04.04.2019, he took two parcels Mark S1 and S2 with form FSL having seal of MKS and MKT from MHCM and deposited the same to FSL Rohini.
(3.8) PW10 is HC Sanjay Kumar, the MHCM. This witness deposed that on 26.03.2019, SHO Insp. Manoj Sharma called him in his office and handed over three parcels Mark A, S1 and S2 and form FSL having seal impression of MKT and MKS alongwith copy of seizure memo pertaining to this case for depositing in malkhana. He deposited the same in Malkhana and made entry at sr.no. 2356 in register no.19 in this regard. Copy of the relevant entry is Ex.PW10/A. PW10 further deposed that on 27.03.2019, SI Vishwender deposited personal search articles of the accused Pooja in Malkhana and in this regard, he made entry at sr.no. 2357 in this regard. Copy of the relevant entry is Ex.PW10/B. On 04.04.2019, he handed over the sample parcels S1 and S2 to ASI Somdutt vide RC no. 41/21/19, who deposited the same FIR No.99/19 State vs Pooja 7 of 27 with FSL and handed over copy of RC and acknowledgment to him. Copy of RC is Ex.PW10/C and copy of acknowledgment is Ex.PW10/D. He also deposed that on 24.07.2019, exhibits and result were received from FSL which was handed over to IO.
(3.9) PW11 is Inspector Manoj Kumar Sharma, the then SHO. This witness deposed that on 26.03.2019, at about 5.15 pm, SI Manoj Tomar came in his office and produced a secret informer stating that accused was selling smack while standing in front of her house at 32 Block Trilokpuri, Delhi. PW11 interrogated the secret informer and on being satisfied, he directed SI Manoj Tomar to act accordingly. The secret information was recorded vide DD No.49A (Ex.PW8/A) by SI Manoj Kumar in compliance u/s 42.2. NDPS Act and the said DD was produced before him. Thereafter, SI Manoj Tomar called HC Upender, Ct. Shiv Charan, Ct. Neetu and Ct. Sheela in the office and formed a raiding team comprising aforesaid staff. PW11 further deposed that on the same day at about 8 pm, SI Manoj Tomar informed him telephonically about apprehension of the accused Pooja and asked him to inform the concerned ACP and to reach at the spot. At about 8.15 pm, PW11 and ACP Kalyanpuri reached the spot i.e. 32 Block, in front of house no.97, Trilokpuri, Delhi where SI Manoj Tomar narrated the entire facts to him and ACP. On the direction of ACP, the personal search of accused Pooja was conducted by lady Ct. Neetu who informed him about recovery of one purse under bra of accused. The purse was checked and found to contain 44 purias of brown colour material. On checking, the substance contained in the purias were FIR No.99/19 State vs Pooja 8 of 27 found to be smack. The said substance along with the paper was weighed on the weighing machine and found to be 13.1 gram. PW11 further deposed that after sampling, sealing and seizure of the contraband, SI Manoj Tomar handed over the parcels Mark A, S1 and S2 sealed with the seal of MKT and FSL form to him and he also put his seal of MKS on the said parcels and FSL form and entire parcels were seized vide seizure memo Ex.PW2/C. Thereafter, ACP left the spot. He also left the spot with parcels, FSL form and copy of seizure memo and deposited the parcels and documents in Malkhana vide DD No.80A (Ex.PW3/C). PW11 also deposed that on 27.03.2019, SI Vishvendra produced a report u/s 57 NDPS Act and he forwarded the same to the office of ACP.
(3.10) PW12 is Ct. Amit Kumar, the reader to then SHO. This witness deposed that on 26.03.2019, information u/s 42.2 NDPS Act vide DD No.49A recorded by SI Manoj Tomar, was sent to ACP office after making diary entry vide diary no.482. Copy of the said entry is Ex.PW12/A. He further deposed that on 27.03.2019, report u/s 57 NDPS Act prepared by SI Vishvendra was sent to ACP after making diary entry vide diary no.484. Copy of the said entry is Ex.PW12/A. (3.11) PW13 is SI Manoj Kumar Tomar, the 1st IO of the case. This witness has also deposed more or less on the lines of 1 st para of the order.
(3.12) PW14 is SI Vishvendra Singh, the second IO of the case. This witness deposed that on 26.03.2019, investigation of this case was FIR No.99/19 State vs Pooja 9 of 27 assigned to him. DO also informed him about the FIR number of this case. Thereafter, he alongwith WHC Raj Kumari reached at the spot i.e. in front of H.NO.32/97 Trilokpuri, Delhi. There SI Manoj Tomar, HC Upender and W/Ct Neetu met him. SI Manoj Tomar produced accused Pooja before him and produced documents prepared by him (PW13) and also apprised him about the facts of the case. Thereafter, PW14 mentioned FIR number on the said documents. PW14 inspected the scene of crime and prepared site plan Ex.PW13/B at the instance of SI Manoj. In the meantime, HC Manoj Tiwari reached at the spot and produced copy of FIR, rukka and certificate u/s 65 of Evidence Act to him at about 11.35 p.m. He relieved SI Manoj Tomar, HC Upender and W/Ct Neetu from the spot. PW14 interrogated the accused and served notice u/s 52 NDPS Act Ex.PW1/E upon her. PW14 further deposed more or less on the lines of PW1. He prepared report u/s 57 NDPS Act Ex.PW8/C. During investigation, he sent the exhibits to FSL Rohini and on receipt of FSL result Ex.PW14/B, he filed the same on record. All the witnesses were crossexamined on behalf of accused.
4. Statement of accused u/s 313 Cr.P.C was recorded wherein she pleaded her innocence and stated that she is innocent. She stated that nothing was recovered from her possession and she was lifted from her house and has been falsely implicated in this case.
5. Arguments have been heard from the Ld. Addl. PP as also from the Ld. Counsel for accused. Ld. Addl. PP has argued that the recovery witnesses PW2 W/Ct. Neetu, PW4 HC Upendra, PW6 Ct. Shiv Charan, PW7/ACP, PW11 SHO Inspector Manoj Kumar Sharma and PW13 1 st FIR No.99/19 State vs Pooja 10 of 27 IO SI Manoj Kumar Tomar examined by the prosecution have proved the recovery of smack from the possession of accused. All the relevant provisions of NDPS Act have been duly complied with. The witnesses have supported the prosecution case. FSL result confirms that the recovered substance was smack. Thus, it is argued that the prosecution has been able to prove its case against the accused and therefore, she may be convicted.
6. Ld. Counsel for the accused, on the other hand, argued that the accused has been falsely implicated in the present case and nothing was recovered from the possession of the accused and the contraband has been planted upon her. It is also argued that the spot is residential area and admittedly some public persons were available near the spot but no public person has been associated by the IO at the time of apprehension of accused and alleged recovery. Preparation of notice u/s 50 NDPS Act at the spot and its service to accused is highly doubtful. Ld. Counsel further submitted that in this case, the parcel of the contraband Mark A has been tampered with as raiding team members deposed that the remaining smack was kept in paper and thereafter the recovered purse, papers of 44 purias were kept into white cloth and same were converted into white cloth along with remaining smack and it was given Mark A but when the parcel Mark A produced before the court at the time of evidence of PW2, was found containing only one white colour paper puria containing remaining smack and white flowered purse and 44 small papers were not in the parcel A and same were produced separately. It is further submitted that there are FIR No.99/19 State vs Pooja 11 of 27 material contradictions in the testimony of prosecution witnesses. Thus, it is prayed that accused may be acquitted.
7. PW2 W/Ct. Neetu, PW4 HC Upendra, PW6 Ct. Shiv Charan, PW7/ACP, PW11 SHO Inspector Manoj Kumar Sharma and PW13 1st IO SI Manoj Kumar Tomar are the witnesses of recovery on which the prosecution case mainly rests. PW13 SI Manoj Kumar Tomar is the 1 st IO who was heading the raiding team. PW14 SI Vishvendra Singh is the second IO to whom the further investigation was entrusted. PW13 SI Manoj Kumar Tomar deposed that on 26.03.2019 at about 5 pm, when he was present in his office, a secret informer came there and informed that one lady namely Pooja (accused) was selling smack in front of her house and then he produced the secret informer before SHO who made inquiry from secret informer and on being satisfied, SHO directed him to take action. Thereafter, PW13 recorded the said information vide GD No.49A in compliance of section 42.2 NDPS Act and called HC Upender, Ct. Shiv Charan, W/Ct. Neetu and W/Ct. Sheela. PW2 W/Ct. Neetu, PW4 HC Upendra and PW6 Ct. Shiv Charan deposed that they were called by PW13 1st IO SI Manoj Kumar Tomar and after briefing about the secret information, PW13 constituted a raiding party comprising themselves. PW2, PW4 and PW6 deposed that IO/PW13 took IO Kit, electronic weighing machine and left for the spot along with secret informer in a govt. vehicle i.e. TATA 407 no. DL1 LM 6722 after lodging GD No.50A. After reaching near 36 Block Gurudwara, Trilokpuri, PW13 asked 56 public persons but none agreed. Thereafter, PW13 took search of Ct. Shiv Charan and HC Upender. Search of FIR No.99/19 State vs Pooja 12 of 27 PW13 was also taken by HC Upender. W/Ct. Neetu and W/Ct. Sheela took search of each other. PW2, PW4, PW6 and PW13 deposed that the vehicle was parked on the side of the road and at the instance of secret informer, they hid themselves in the park situated near the house of the accused, for keeping an eye on the activity of the accused. Secret informer also left the spot after pointing out the house of the accused. At about 7 pm, due to illness W/HC Sheela also went away from the spot. The raiding team members further deposed that at about 7.10 pm, accused was seen outside her house. PW13 told PW2, PW4 and PW6 and identified the accused as Pooja as she was arrested earlier also in other case of NDPS Act and thereafter, accused was cordoned of and apprehended. Raiding team members deposed that PW13 asked 56 passers by to join the investigation but none agreed and PW13 informed the accused about receipt of secret information that she was having smack and there is possibility of recovery of smack from her and for that purpose she would be searched. Accused was also apprised about her legal right but she refused. Then PW13 prepared notice u/s 50 NDPS Act and its contents were read over and explained to the accused. The original notice Ex.PW1/D was given to the accused and she refused to exercise her legal rights. Refusal of the accused was written by PW4 HC Upendra on the carbon copy of the notice Ex.PW2/A as she was illiterate. Reply of the accused is Ex.PW2/B. The raiding team members deposed that SHO was informed in this regard and at about 8.15 pm, PW7/ACP reached at the spot. PW11/SHO PS Mayur Vihar also reached at the spot. They made inquiry from the accused and PW7 directed PW2 W/Ct. Neetu to take search of the accused.
FIR No.99/19 State vs Pooja 13 of 27 Thereafter, PW2 took search of the accused inside accused's house by maintaining her decency and after taking search, PW2 informed that one white flowered purse was recovered from the accused which was kept in the left side of her bra. Raiding team members as well as PW7 and PW11 deposed that PW2 produced the purse before PW7 who instructed IO/PW13 to check the said purse. On checking the said purse, some white paper purias were found and there were total 44 purias. PW13 smelt the powder i.e. brown powder kept in the purias and same was found to be smack. The recovery witnesses further deposed that PW13 weighed three white papers on the electronic weighing machine and each paper was found to be of 4.7 grams. The recovered smack of all the purias was weighed by putting them on a white paper and it was found to be 13.1 grams and the total weight of the recovered smacks was found to be 8.4 grams. Two samples of two grams each were drawn and same were kept on two separate white papers and same were converted into two separate cloth parcels which were given Mark S1 and S2. Remaining 4.4 grams smack was also kept in a paper and same were kept in parcel and it was given Mark A. All the pullandas were sealed with the seal of MKT. Seal after use was handed over to PW4 HC Upender vide handing over memo Ex.PW2/D. Form FSL was also filled by PW13 and it was affixed with the same seal. Thereafter, ACP/PW7 left the spot. Members of raiding team deposed that PW13 handed over the parcels, FSL form and carbon copy of seizure memo to SHO/PW11 who also put his seal of MKS on these articles and left the spot along with these articles. Thereafter, PW13 prepared rukka Ex.PW13/A and sent Ct. Shiv Charan to PS for registration of the case.
FIR No.99/19 State vs Pooja 14 of 27 PW2, PW4 and PW13 deposed that after registration of FIR, PW14 SI Vishvendra along with PW1 W/HC Raj Kumar came at the spot and PW13 handed over seizure memo and copy of notice u/s 50 NDPS Act and other documents along with custody of accused to PW14. PW1, PW2, PW4 and PW13 deposed that PW14 mentioned FIR number on the said documents and put his signatures. PW14 prepared site plan Ex.PW13/B at the instance of PW13. In the mean time, HC Manoj Tiwari came at the spot at about 11.35 pm and handed over copy of FIR and original rukka to PW14. After reaching PS, PW13 made DD No.40B Ex.PW3/F at about 11.50 pm. PW13 further deposed that inadvertently, the white flowered purse and 44 empty papers of purias were left in IO kit at that time but later on same were deposited by him in Malkhana vide DD No.26B dated 26.09.2019 Ex.PW13/C.
8. As per prosecution case, on 26.03.2019 at about 7.10 pm, in front of H.No.32/97, Trilokpuri, Delhi, accused was found in possession of 8.4 grams smack. Thus, the prosecution was required to establish the same beyond reasonable doubt. However, perusal of testimony of prosecution witnesses reflects several material contradictions in their statements made before the court and prosecution case appears to be highly doubtful.
9. The defence of the accused is that accused has been falsely implicated in this case as nothing was recovered from possession of accused. The case property produced before the court cannot be linked with the present case as same is tampered with and this fact is clear from the testimony of PW2, PW13 and other recovery witnesses.
FIR No.99/19 State vs Pooja 15 of 27
10.The search and seizure of the contraband at the spot from the possession of the accused and conducting of proceedings after apprehension of the accused at the spot appear to be very doubtful. As per raiding team members, after apprehension of accused, PW13 informed the SHO/PW11 and thereafter, PW11 and ACP/PW7 came at the spot and on the direction of PW7, PW2 took search of accused in which one white colour flowered purse containing 44 purias of smack was recovered. Thereafter, PW13 checked the purias, weighed recovered smacks, drawn two samples and converted them into two separate cloth pullandas Mark S1 and S2 and remnant was converted into separate cloth pullanda Mark A. In her testimony before the court, PW2 deposed that recovered purse and paper of 44 purias were kept into white cloth and same were converted into white cloth pullandas along with remaining smack and it was given Mark A and all the pullandas were sealed with the seal of MKT. PW2 further deposed that all pullandas, carbon copy of seizure memo and form FSL were handed over to SHO/PW11 who also put his seal of MKS on the parcels and form FSL and left the spot along with said articles. Other recovery witnesses also deposed that after drawing two samples, remaining substance was kept in a white paper and same was also converted into cloth pullanda Mark A. However, during the course of evidence of PW2, the case property i.e. parcel Mark A was produced before the court on 25.09.2019 and it was not found containing the case property as stated by PW2. On opening the parcel Mark A, it was found containing only one white colour puria containing remaining smack and therefore, further examination in chief of PW2 was deferred for want of remaining FIR No.99/19 State vs Pooja 16 of 27 case property i.e. a white flowered purse containing 44 small empty papers. In his evidence recorded on 23.01.2020, PW13/IO SI Manoj Kumar Tomar deposed that inadvertently, the white flowered purse and 44 empty papers of purias were left in IO kit but later on same were deposited by him in Malkhana and in this regard DD No.26B dated 26.09.2019 was lodged. Copy of DD No.26B is Ex.PW13/C. This document Ex.PW13/C appears to be highly doubtful on two counts, firstly, from this document, it is not clear as to at what time this DD was lodged in PS and secondly copy of the relevant entry qua deposit of said purse containing 44 empty papers of purias is not brought on record by the IO. PW10 HC Sanjay Kumar who was working as MHCM on 26.03.2019 in PS Mayur Vihar, was examined before this court on 30.11.2019 and he has no where deposed that PW13/SI Manoj Kumar Tomar has deposited any white colour purse containing 44 empty papers of puria. PW10 has brought on record copy of relevant entry dated 26.03.2019 Ex.PW10/A in which there is no mention of deposit of the said white colour purse containing 44 empty papers of purias by the IO/PW13. Further as per prosecution case, the recovery and seizure of case property was done in the presence of recovery witnesses and ACP/SHO also and they all have deposed that remaining smack was sealed with white paper sheets & purse and all the things were kept in pullanda Mark A then how it is possible that some of these articles were found not available in the parcel when it was produced before the court. As per prosecution case, this pullanda was also sealed with the seal of MKT and thereafter, all the parcels including Mark A were handed over to the SHO/PW11 and he had put his own seal of MKS on all the three FIR No.99/19 State vs Pooja 17 of 27 parcels including Mark A and all these parcels were deposited by him in the Malkhana on the same day and since then parcel Mark A had been lying in the Malkhana and for the first time it was produced before the court in the evidence of PW2 and after the same was opened it was only found containing the remnant of smack and white flowered purse and paper purias were not found in the mark A. As per evidence of 1 st IO/PW13, the white flowered purse and purias could not be sealed and same were found lying in the IO bag which were discovered by him subsequent to the evidence of PW2 and white flowered purse and purias were produced subsequently in unsealed condition. According to the recovery witnesses, including the ACP/SHO, the parcels were sealed in their presence and as per prosecution case none of the parcels have been tampered with yet Mark A was not found containing the articles which were kept therein. Thus, under these facts and circumstances, the entire prosecution case including the recovery as well as the further proceedings drawn in the present case by the IO becomes highly doubtful. All these facts create heavy doubt over the veracity of the prosecution case as well as the veracity of the version of the prosecution witnesses with regard to recovery of contraband from the possession of accused and under these circumstances, chances of false implication and planting of contraband cannot be ruled out. In case, the recovery would have taken place in the manner as mentioned in the chargesheet and as deposed by the witnesses, the parcel Mark A would have contained all the articles as mentioned in the seizure memo and the evidence of the witnesses. However, the factual position is quite different from the record of the case.
FIR No.99/19 State vs Pooja 18 of 27
11.Search and seizure of case property from the possession of accused at the spot in presence of ACP/PW7 as well as SHO/PW11 Inspector Manoj Kumar Sharma and other recovery witnesses appear to be doubtful. As per PW13 SI Manoj Kumar Tomar, after apprehension of accused, he informed the SHO/PW11 and after sometime, PW7 and PW11 arrived at the spot and thereafter, on the direction of PW7, PW2 W/Ct. Neetu conducted search of the accused inside accused's house in which alleged contraband was recovered from the possession of accused. However, no DD entry regarding movement of PW7 and PW11 from the PS to the spot is brought on record to prove that PW7 and PW11 had, in fact, reached at the spot. From the statement of PW11, it appears that PW11 had informed PW7 while PW7 has not specified as to who had informed him to reach at the spot and PW7 has deposed that on the instructions of Sr. Officers he has reached at the spot.
12.During the course of arguments, Ld. Counsel for accused submitted that notice u/s 50 NDPS Act was not served upon the accused and compliance of section 50 NDPS Act has not been made. In this regard, Ld. Counsel for accused has referred to the crossexamination of witnesses. As per PW2, the original notice u/s 50 NDPS Act was given to the accused and her signature was there on the original notice, however, subsequently PW2 deposed that the signature of the accused was obtained on the carbon copy. In this regard, PW4 deposed that the signature of accused was obtained on original notice and at that time carbon copy was kept beneath the original notice and accused had put FIR No.99/19 State vs Pooja 19 of 27 one signature and one thumb impression on both the notices. While in regard to service of notice of the said notice, PW6 showed his ignorance and stated that he does not remember the number of copies of the notice which were prepared at the spot. He also could not remember whether the original or carbon copy of the notice was given to accused. He also could not remember that whether he has signed on the notice as witness or not. Besides that there are also material contradictions as PW2 stated that all the members were in civil dress while PW7 stated that all the raiding team members were in police uniform. Thus, keeping in view of the aforesaid contradictions, it is held that the testimony of recovery witnesses in regard to compliance of section 50 NDPS Act is highly doubtful.
13.As per prosecution case, the smack 8.4 grams was recovered from the possession of accused which was weighed on the weighing scale. For weighing the said quantity normally a specific weighing scale is required and prosecution ought to have disclosed its particulars as well as its minimum weighing capacity, however, it is clear from the evidence of the recovery witnesses that none of them has specified the particulars of weighing machine. All the recovery witnesses have minutely specified in their evidence about the receipt of secret information as well as all the facts and circumstances as to how the recovery was effected, thus, as per recovery witnesses they have participated in the raid and recovery was effected in their presence and entire proceedings regarding weighing and sealing of case property was done in their presence. However, when the recovery witnesses were crossexamined FIR No.99/19 State vs Pooja 20 of 27 regarding the specification of the weighing scale, they expressed their ignorance about its capacity, colour and make. Besides, the sealing and seizure of the case property was done in the presence of PW7 as well as PW11 also and the seizure memo was signed by PW7, PW11 and PW2, however, PW7 deposed that only he and PW2 had signed the seizure memo and he also deposed that none else had signed the seizure memo.
14.The entry made by MHCM in the register no.19 regarding deposit of pullandas and documents also appears to be highly doubtful. PW10 HC Sanjay Kumar, the MHCM deposed that on 26.03.2019, PW11/SHO called him in his office and handed over three parcels Mark A, S1 and S2 and form FSL having seal impression of MKT and MKS along with copy of seizure memo and in this regard PW10 made relevant entry i.e entry no.2356 in registere no.19, copy of which is Ex.PW10/A. Though, the entry Ex.PW10/A bear the name of PW11/SHO Inspector Manoj Kumar Sharma in the column no.3 meant for depositor's name, however, it does not bear time of deposit of the aforesaid articles in Malkhana by SHO/PW11. Bare perusal of the entry Ex.PW10/A further shows that this entry is merely a brief repetition of the contents of seizure memo and it doesn't mention about affixing of seal of MKS by the SHO. The said entry also does not mention the deposit of any pullanda, FSL form and copy of seizure memo. It is clear that there is no discussion about deposit of FSL form with the MHCM and it is not mentioned in the RC also that the same was sent to FSL for authentication of seal. It is not mentioned either in the register no.19 or FIR No.99/19 State vs Pooja 21 of 27 in the road certificate that FSL form was deposited and sent to FSL. It is also clear from the copy of RC Ex.PW10/C and acknowledgement receipt Ex.PW10/D that FSL form were not sent to FSL for authentication of seal. It is well settled law that in case FSL form is not deposited in the Malkhana or with the FSL, the case of the prosecution will be highly doubtful. In the case of Radha Kishna Vs. State, 87(2000) DLT 106, the Hon'ble High Court 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 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 FIR No.99/19 State vs Pooja 22 of 27 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 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."
15.The prosecution has to travel the distance from 'may have' to 'must have' through the testimony of prosecution witnesses beyond reasonable doubt. However, the picture emerges from the aforesaid discussions, clearly indicates that the testimony of recovery witnesses are not consistent with each other. Even their testimony on many material aspect is not in consonance with the documents like seizure memo, copy of RC Ex.PW10/C and copy of entry Ex.PW10/A filed alongwith chargesheet. All these facts create doubt as to the veracity of prosecution case qua recovery of contraband from the possession of the accused at the spot.
16.Ld. Defence Counsel stated that the IO of this case has not associated any public witness in this case. Ld. Addl. PP submitted that there is no need to associate any public witness as the testimonies of police FIR No.99/19 State vs Pooja 23 of 27 officials are straight forward regarding recovery of smack from the accused. As per prosecution case, accused was apprehended on 26.03.2019, at about 7.10 PM, in front of H.No.32/197, Trilokpuri, Delhi and alleged contraband was recovered from her possession. Admittedly, the place of apprehension of accused is a residential area and public persons were passing through there. From the statement of recovery witnesses, it is clear that they did not make sincere effort to join public person before or after recovery of the alleged contraband despite having ample opportunity to do so. Admittedly, PW13 did not serve any notice to any person for nonjoining the investigation. Testimonies of all the raiding party members show that the spot is a busy place. Many public persons used to pass through the same, it being a residential area. There was enough time and opportunity to include the public persons in the raiding team. Neither any notice was served upon the public persons nor any action was taken against them on their refusal to join the investigation. Thus, it appears that no genuine effort was made to join the public persons in the raiding team. Ld. Addl. PP has referred to the decision of Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 arguing that failure to associate independent witnesses is not fatal to the prosecution case as long as it is shown that efforts were made and none was willing. However, in the said case, Hon'ble Supreme Court emphasized that it has to be shown that after making efforts the police official was not able to get the public witness associated either in raid or the arrest of the culprit. In other words, in every case, it will have to be examined whether serious efforts FIR No.99/19 State vs Pooja 24 of 27 were made by the police to associate public witnesses. However, it is clear from the facts and circumstances of the present case that no sincere efforts were made to join public witness. Furthermore, it is also clear that there are material contradictions in the testimony of recovery witnesses and the recovery itself is highly doubtful as the parcel Mark A was not found containing the material as per seizure memo and as per the deposition of witnesses. Thus, under these circumstances, the testimony of official witnesses cannot be relied unless same is corroborated by some independent witnesses.
17.In the case of Mohd. Masoom Vs. State of NCT of Delhi, Criminal Appeal 1404/11, decided by Hon'ble Delhi High Court on 09.04.2015, the Hon'ble High Court in Para No. 10 held as under: "10. "Appellants" conviction is primarily based upon the testimonies of the police officers/officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes, it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witnesses is not a mere formality. Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not suffice. The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits."
18.In the latest case of Om Prakash Vs. State III (2014) CCR 1 (Del.), it is held that 'in absence of clear evidence to show that sincere effort was FIR No.99/19 State vs Pooja 25 of 27 made, Court should not simply accept proposition that generally in such cases no member of public comes forward to help prosecution'. Reliance is also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
19.In the present case, public persons were not made to join the proceedings at the time of recovery at the spot and there seems to be no genuine efforts to join them. Hence, nonjoining of public witnesses at the time of recovery creates doubt regarding the entire proceedings being genuine.
20. 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.
21. In the State of Punjab Vs. Baldev Singh (1999) 3 SCC 977, the Hon'ble Supreme Court held that it must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguard provided in statute are scrupulously followed.
22. It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by the FIR No.99/19 State vs Pooja 26 of 27 Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103.
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
23. In view of the aforesaid discussions, the case of the prosecution is highly doubtful. It is well settled law that benefit of doubt is always given to the accused. Accused Pooja is accordingly acquitted. However, she is directed to furnish a personal bond u/s 437A Cr.P.C. in the sum of Rs.10,000/ with one surety of the like amount. File be consigned to record room after the requisite bond is furnished. AJAY Digitally signed by AJAY GUPTA Location: Karkardooma Court GUPTA Date: 2020.09.25 16:07:52 +0530 (Ajay Gupta) Special Judge(NDPS) KKD/East/Delhi Announced in open court on 25.09.2020 FIR No.99/19 State vs Pooja 27 of 27