Delhi District Court
2 vs State 2000 Cri. L. J. 24 on 8 January, 2014
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In the Court of Dig Vinay Singh : Addl. Sessions Judge
Spl. Judge: NDPS (NW): Rohini Courts: Delhi
In the matter of :
SC No. 64/12
FIR No. 210/12
PS. Crime Branch
U/s 21 NDPS Act
State
Versus
Mohd. Niyaz
S/o Late Sh.Kurban Ali
R/o H.No. E-2609, J.J.Colony,
Bawana, Delhi
Date of receipt : 19.10.2012
Date of arguments : 08.01.2014
Date of announcement : 08.01.2014
JUDGMENT
1. The above named sole accused was sent up for trial with the case of prosecution that on 16.8.2012 at 3.45 PM, at footpath, under Metro Station Pitampura, Delhi, the accused was found in possession of 125 Gms of 'heroine', which he was carrying inside a polythene inside his pocket of pant. Out of the recovered 'heroine', samples were drawn and one of the sample was sent to the FSL, Rohini, which also confirmed the substance to be 'heroine'.
2. Accordingly, the accused was charged U/s 21 NDPS Act of 1985, to which he pleaded not guilty and claimed trial.
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3. In support of its case, prosecution examined total 10 witnesses, out of whichPW-1 HC Narender, PW-4 HC Kanwal Singh and PW-5 Inspector Bhagwan Singh are the recovery witnesses.Inspector Bhagwan Singh was the initial investigating officer. PW-9 SI Sunil Jain was the subsequent investigating officer.
3.1. It is deposed byPW-5 Inspector Bhagwan Singh that on 16.8.2012, when he was posted in Narcotics Cell, Shakarpur, one secret informer came to his office at about 1.30 PM and told him that the accused would come with 'heroine' between 3.45 to 4.15 PM at Pitampura Metro Station, Delhi. The secret informer was produced before PW-10 Inspector Kuldeep Singh, who was Incharge of Narcotics Cell on that day. Inspector Kuldeep also enquired from the informer, and on being satisfied informed ACP Bir Singh about the secret information. Thereafter, the secret information was reduced to writing vide DD no.14 Ex.PW-5/A and a true copy of the said DD was forwarded to Inspector Kuldeep in compliance of Section 42 of the NDPS Act, who endorsed and forwarded the report to ACP. Thereafter, a raiding party comprising of HC Narender, HC Kanwal Singh and Inspector Bhagwan Singh was constituted.
3.2. It is deposed by the three witnesses viz. PW-1 HC Narender, PW-4 HC Kanwal Singh and PW-5 Inspector Bhagwan Singh that the raiding team along with the informer went to the spot in government vehicle vide DD no.15 Ex.PW-5/B and the raiding team also took SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 2 of 31 -3- along the IO bag, a field testing kit and an electronic weighing scale. The raiding team reached Pitampura Metro Station at 3.30 PM. On the way to the spot, few passersby were requested to become witnesses, but none of them agreed. The raiding team took position at the spot and, at 3.40 PM the accused was noticed while coming from the side of Wazirpur. He was identified by the informer and thereafter the informer left. The accused came and stood at the spot for 2-3 minutes and when he started walking back, he was apprehended at 3.45 PM. After apprehension of accused, Sec. 50 of NDPS Act was complied with and a written notice Ex.PW-1/1 was delivered to the accused. The accused refused to exercise his legal rights and gave his refusal. Thereafter, 7-8 public persons who had gathered at the spot were requested to become witness but even they did not agree. On search of accused, from right side pocket of his pant, one polythene was recovered which was containing some powder. It was checked with the help of field testing kit and was found to be 'heroine'. On measurement, the total weight of 'heroine', with polythene, came to be 125 grams. Out of it, two samples of 5-5 Grams of 'heroine' were separated and were kept in parcels Mark A & B. The remaining 'heroine' was kept in Parcel C. All the three parcels were duly sealed by SI Bhagwan Singh with his seal of 8APS NB Delhi. FSL form was filled up upon which also same specimen seal was applied. Seal after use was handed over to HC Kanwal Singh. Thereafter, all the sealed parcels and FSL form were taken SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 3 of 31 -4- into police possession vide seizure memo Ex.PW-1/2. Thereafter, rukka Ex.PW-4/A was prepared and was handed over to HC Narender to be takken to police station Crime Branch Malviya Nagar for registration of FIR. Besides rukka, all the three sealed parcels, the FSL form and one copy of seizure memo were also given to HC Narender to be taken to the police station and to be handed over to the Station House Officer. It is deposed that HC Narender took those documents and parcels from the spot.
3.3. HC Narender deposed that on reaching the police station, he handed over the rukka to PW-2 HC Adal Singh. It is deposed by HC Adal Singh and HC Narender that FIR Ex.PW-2/A was registered and endorsement on rukka Ex.PW-2/B was made by HC Adal Singh. HC Adal Singh also deposed that he lodged DDno.17 & 19, Ex.PW-2/C & D, regarding commencement and conclusion of FIR.
3.4. HC Narender also deposed that he handed over all the three sealed parcels, the FSL form and, carbon copy of seizure memo to PW-6 Inspector C.R.Meena who counter sealed all the three parcels with his seal of CRM and applied the same specimen seal on the FSL form.
3.5. It is deposed by PW-1 HC Narender, PW-6 Inspector C.R.Meena and PW-3 HC Jag Narain that thereafter HC Jag Narain who was working as a malkhana moharrar was called by the SHO in his room SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 4 of 31 -5- along with Register no.19 and, the case property, the FSL form and carbon copy of seizure memo was handed over to him and he made entry in Register no.19 Ex.PW-3/A. The SHO lodged DDno.18 Ex.PW-2/E at 8.55 PM qua deposition of case property in the malkhana.
3.6. It is deposed by HC Narender that thereafter he collected copy of FIR and original rukka from the duty officer and took them to Narcotics Cell, Shakarpur, where he handed over the FIR and original rukka to PW-9 SI Sunil.
3.7. PW-9 SI Sunil deposed that on receipt of rukka and copy of FIR, he left for the spot under DD no.25 Ex.PW-9/A. It is deposed by HC Kanwal Singh, Inspector Bhagwan and SI Sunil that on reaching the spot, SI Sunil prepared site planEx.PW-5/C and thereafter interrogated and arrested the accused vide arrest memo Ex.PW-4/B. Personal search of accused was also conducted vide memo Ex.PW-4/D, in which carbon copy of notice U/s 50 NDPS Act was recovered. Subsequently, disclosure statement of accused Ex.PW-4/C was recorded. Thereafter, the police officials and accused went to the police station Crime Branch, Malviya Nagar where personal search articles of accused were deposited in the malkhana and then the accused was taken to Narcotics Cell in Shakarpur. At Narcotics Cell, the accused was produced before Inspector Kuldeep Singh.
SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 5 of 31 -6- SI Sunil also proved DD no.4 regarding arrival from the spot on 17.8.2013 Ex.PW-9/C. The FSL result is proved as Ex.PW-9/D. 3.8. Inspector Bhagwan Singh deposed that he prepared a report U/s 57 NDPS Act Ex.PW4/D qua seizure of contraband, which he forwarded to senior officers.
3.9. Similarly, SI Sunil also deposed that he also prepared a report U/s 57 NDPS Act Ex.PW9/B, which he submitted to senior officers qua arrest of accused.
3.10. The remaining witnesses are more or less formal in nature.
3.11. PW-2 HC Adal Singh proved registration of FIR; endorsement on rukka and; the concerned DDs as mentioned above.
3.12. PW-3 HC Jag Narain the Malkhana Moharrar corroborated that the case property was deposited in the malkhana on 16.8.2012 by the SHO vide entry Ex.PW-3/A and the personal search articles were deposited by SI Sunil vide entry Ex.PW-3/B. 3.13. PW-3 HC Jag Narain and PW-8 HC Rajender also deposed that on 23.8.2012 one of the sample parcels Mark A duly sealed was sent to FSL, Rohini along with the FSL form through HC Rajender vide road certificate Ex.PW-3/C. After depositing the sample parcel in the lab, HC Rajender obtained one acknowledgment receipt Ex.PW-3/E which he deposited in the malkhana on that very day.
SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 6 of 31 -7- 3.14. PW6 Inspector C.R.Meena corroborated the testimony of HC Narender as mentioned above.
3.15. PW-7 HC Om Prakash from ACP office proved that on 16.8.2012, report Ex.PW-7/A in compliance of Sec. 42 of NDPS Act, and on 17.8.2012 two reports U/s 57 NDPS Act Ex.PW-7/B & C, were received in the office of ACP, which were seen and signed by the ACP. The relevant entries regarding receipt of those three reports are proved as Ex.PW-7/A-1, B-1 & C-1.
3.16. PW10 Inspector Kuldeep also corroborated the testimony of Inspector Bhagwan Singh to the effect that secret informer was produced before him on 16.8.2012 and he informed the ACP about the information and also that SI Sunil had produced the accused before him upon return from the spot. Inspector Kuldeep Singh also corroborated the testimony of other witnesses to the effect that the report U/s 42 NDPS Act Ex.PW-7/A and another report U/s 57 NDPS Act Ex.PW-7/B & C were submitted to him which he signed and forwarded to the ACP.
4. On conclusion of prosecution evidence, all the incriminating evidence was put to the accused in his examination U/s 313 Cr.P.C. The accused claimed that he did not go to Pitampura Metro Station at all on the date of incident, and in fact he had gone to Rohini Courts along with his brother in law namely Dharamvir and his son Sanju, as Dharamvir had a date of hearing. He claimed that he was in Rohini SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 7 of 31 -8- Courts up to 4.05 PM and then met his lawyer on that day and he was picked up from the gate of Rohini Courts at 4.20 PM by some police officials and from there, he was straightaway taken to Narcotics Cell. The accused claimed that neither he was explained any rights U/s 50 NDPS Act, nor any notice was served upon him. He also claimed that he was not carrying any kind of contraband and the contraband is planted upon him. He claimed that his signatures were obtained by the police on blank papers in Narcotics Cell which were then converted into documents of this case. He claimed that he has been falsely implicated.
4.1. The accused examined one witness in his favour namely Sanju who was examined as DW1. The defence witness deposed that on the date of incident, he along with his maternal uncle and his father (i.e. the accused) came to Rohini Courts to attend the date of hearing of his maternal uncle namely Shiv Kumar and remained in the court till 4 PM. He claimed that thereafter he along with his father and maternal uncle met their advocate and thereafter they went outside the Rohini courts where one police official namely Charan Singh with 2-3 other police officials met his father and told that his father was called by some senior officer for some enquiries and thereafter they left along with his father. In the night, DW1 came to know through telephone that his father has been implicated in this case. No other defence witness was examined by the accused.
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5. I have heard Ld. Prosecutor for the State and Ld. Counsel for the accused.
6. Ld. Counsel for the accused first of all argued that the certificate U/s 65 B of Indian Evidence Act qua the FIR has not been proved in accordance with law.
6.1. PW-2 the duty officer exhibited the said certificate as Ex.PW-2/F, but in his cross examination he deposed that he does not know as to on which date the certificate was signed by the SHO as it was not signed by the SHO in his presence. He also admitted that the SHO was not aware how to operate computer and he himself was also not aware as to how to operate computer.
6.2. There was no requirement of proving any certificate U/s 65 B of Indian Evidence Act qua the FIR. Though the FIR was typed on a computer system and its printout was taken, it was not processed or stored or transferred with the aid of computer. It is not uncommon that computer are being used as a substitute of typewriters. Most of the time, computers are used for typing material directly, and immediately after typing its printout is taken out. In such circumstances, first information report though is a computer typed document, it is not a computer processed document and, therefore, legally there was no requirement of any certificate U/s 65 B of Indian Evidence Act in support of the FIR. This contention of Ld. Counsel for the accused is therefore rejected.
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7. Ld. counsel for the accused next contended that there is no compliance of Section 50 of NDPS Act and in this regard, attention of the court is drawn towards cross examination of PW-1 & 5.
7.1. Admittedly, the contraband was recovered from inside a polythene, which polythene was kept inside the pocket of pant of accused. Thereby meaning that recovery of contraband of this case was affected from the person of accused. Therefore, strict and absolute compliance of Section 50 of NDPS Act was mandatory in the present case. Three witnesses have been examined in the present case, who were allegedly present at the spot at the time when the alleged notice was served. PW1 HC Narender and PW-4 HC Kanwal Singh are the two witnesses of this document and PW-5 Inspector Bhagwan Singh was the Investigating Officer, who had prepared the notice.
7.2. PW1 HC Narender deposed that after the accused was apprehended, he was informed that if he wishes, he could be searched before Gazetted Officer or a Magistrate. This witness did not depose that the accused was specifically and categorically informed that accused had a legal right to offer his search in presence of a Gazetted Officer or a Magistrate. Despite the fact that Ld. Prosecutor for the State, with the permission of court, asked leading question to the witness but the witness was not asked by the Prosecutor as to informing the accused about his legal rights under SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 10 of 31
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section 50 NDPS Act. Therefore, one of the witnesses of this notice fails on this aspect of the matter.
7.3. Similarly, PW-4 HC Kanwal Singh deposed that after apprehension of accused, SI Bhagwan told the accused that if he wishes, his search can be conducted before a Gazetted Officer or a Magistrate and arrangements can be made to call those officers at the spot. Even this witness did not depose that the accused was categorically informed of his legal rights to this effect. Thus, even the second witness to the notice fails on this crucial aspect of the matter. Despite the fact that this witness did not so depose in his examination in chief, he was not questioned on this aspect of the matter by the prosecution.
7.4. Thus, as per the testimony of PW-1 & 4, the legal requirement U/s 50 NDPS Act were not strictly complied with, as merely an option was given to the accused to be searched in presence of those officers and it is not deposed by these witnesses that accused was specifically informed that he had a legal right vested in him U/s 50 NDPS Act.
7.5. Thus, there is only PW-5 Inspector Bhagwan Singh who deposed that he had told the accused that the accused had a legal right to be searched in presence of Gazetted Officer or a Magistrate. But cross examination of Inspector Bhagwan Singh would also reveal that even his testimony as to notice U/s 50 NDPS Act is unreliable.
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7.6. It is no more res integra that compliance U/s 50 NDPS Act has to be absolute and strict and there cannot be any question of substantial compliance.
7.7. Recently, in the case of Kishan Chand v. State of Haryana, (2013) 2 SCC 502 , Supreme Court held as follows;
"19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in Karnail Singh [(2009) 8 SCC 539 : (2009) 3 SCC (Cri) 887] carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds.
20. While dealing with the requirement of complying with the provisions of Section 50 of the Act and keeping in mind its mandatory nature, a Bench of this Court held that there is need for exact compliance without any attribute to the element of prejudice where there is an admitted or apparent non-compliance. The Court in State of Delhi v.Ram Avtar [(2011) 12 SCC 207 : (2012) 1 SCC (Cri) 385] held as under: (SCC pp. 216-17, paras 26-27) "26. The High Court while relying upon the judgment of this Court in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and rejecting the theory of substantial compliance, which had been suggested inJoseph Fernandez [Joseph Fernandez v. State of Goa, (2000) 1 SCC 707 :
2000 SCC (Cri) 300] , found that the intimation did not satisfy the provisions of Section 50 of the Act. The Court reasoned that the expression 'duly' used in Section 50 of the Act connotes not 'substantial' but 'exact and definite compliance'. Vide Ext. PW 6- A, the appellant was informed that a Gazetted officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 12 of 31
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before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside.
27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] , the theory of 'substantial compliance' would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act.
Non-compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial."
7.8. Also recently, in the case of Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67, Supreme Court held as follows;
"7. We are in this case concerned only with the question whether PW 1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under Section 50 of the NDPS Act. On this question, there were conflicts of views by different Benches of this Court and the matter was referred SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 13 of 31
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to a five-Judge Bench. This Court in Vijaysinh Chandubha Jadeja [(2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a gazetted officer or a Magistrate. This Court also held that it is mandatory on the part of the authorised officer to make the accused aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. .............................
The above statement of PW 1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a gazetted officer if he so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a gazetted officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a gazetted officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person.
9. We are of the view that non-compliance with this mandatory procedure has vitiated the entire proceedings initiated against the appellant-accused. ...................... Consequently, the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside.................."
7.9. In the cross examination, Inspector Bhagwan deposed that he prepared FSL form at the spot after sealing the case property and thereafter seizure memo and rukka was prepared. He categorically deposed that he did not prepare any other document at the spot SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 14 of 31
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on that day. This statement of the witness creates doubt as to whether notice U/s 50 NDPS Act was in fact prepared or delivered to the accused or not.
7.10. Service of notice is also doubtful from the testimony of none other than the initial Investigating Officer Inspector Bhagwan Singh, who deposed that the accused was noticed at the spot for the first time 30 minutes after the raiding team reached the spot. He also deposed that within five minutes of noticing the accused, he was searched and within those five minutes of noticing the accused, the contraband was found on the search of the accused. The fact that within 5 minutes of noticing of accused, the accused was searched, itself indicates that the time to prepare notice U/s 50 NDPS Act was grossly insufficient and within those five minutes of noticing of accused, the accused could not have been apprehended, secret information disclosed, legal rights explained, and notice prepared in writing and served. It is so, because admittedly as per the case of the prosecution, after the accused came to the spot, he stopped at the spot for 2-3 minutes while waiting for somebody and thereafter, when the accused started walking back, he was apprehended. Thus, within the remaining two minutes the notice Ex.PW-1/1 could not have been prepared in writing and the time was insufficient for orally telling the accused about the secret information; giving introduction of the raiding team members and; preparation or SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 15 of 31
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service of this notice and also recording the refusal of accused in writing.
7.11. The initial investigating officer also deposed that at the time of search of accused, besides contraband, Rs.150/- were also found in his possession but those currency notes were not seized at that time and nothing was mentioned about the currency notes in the seizure memo or any other document prepared by SI Bhagwan Singh. The fact that at the time of search of accused besides contraband only Rs.150/- were claimed to be found in possession of accused also indicates that the carbon copy of notice was not in his possession. Thereby creating a serious doubt whether the carbon copy of notice was actually delivered to the accused before his search was conducted by Inspector Bhagwan Singh, who at the relevant time was Sub Inspector.
7.12. PW-4 HC Kanwal Singh deposed that in the first search of the accused, at the time of recovery of contraband, nothing else was recovered from the search of accused. This fact creates a serious doubt about the genuineness of the case of prosecution as admittedly this search of accused was conducted by Inspector Bhagwan Singh in presence of HC Kanwal Singh in which the pockets of accused were searched and his body was also searched by Inspector Bhagwan Singh. Had the accused been delivered carbon copy of notice U/s 50 NDPS Act, the same should have been SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 16 of 31
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found in the search of the accused. But, not only the carbon copy of notice was not found as per deposition of PW-4 but also no currency notes were found from the possession of accused at that time, whereas, in the second personal search of accused, carbon copy of notice and Rs.150/- are claimed to have been recovered from the search of accused by SI Sunil Jain. This fact creates a serious doubt as to whether true and actual compliance of Section 50 NDPS Act was made in the present case or not.
7.13. Besides compliance of Section 50 NDPS Act, there is a serious discrepancy as to the seal impression affixed by the IO on the pullandas. PW-1 HC Narender, the recovery witness in his examination in chief deposed that Inspector Bhagwan affixed seal of "8A" on the three pullandas and he also deposed that he took the rukka with the case property from the spot to the PS where the SHO affixed his seal of "PCM". He deposed the name of SHO as P.C.Meena and the impression of seal of SHO as PCM, whereas the name of SHO was C.R.Meena and impression of seal was "CRM" and not "PCM". Despite the fact that Ld. Prosecutor for the State questioned this witness under leading question as to the name of SHO, no suggestion was put to the witness and no leading question was asked to the witness to the effect that the seal of SHO was not "PCM" or it was "CRM" or that the seal of IO was not "8A" but was "8APS NB Delhi". When the case property was produced in the SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 17 of 31
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court for the first time in the testimony of PW-1, the three parcels including the parcel which was sent to the FSL was bearing seals of "CRM" and "8A". Out of the three parcels, parcel Mark A was sent to the FSL and the FSL authorities opened the parcel without disturbing the seals and then tested the material. Thereafter, the parcel was sent back. It was clarified by the court in the testimony of PW-4 on 17.5.2013 that the parcel Mark B was bearing seal of "CRM" and "8 APS NB Delhi" whereas the parcel Mark A had a cloth parcel which had a seal impression of "8A" and not "8APS NB Delhi". Investigating Officer admitted that he had no seal of "8A" with him. This fact also creates a serious suspicion as to whether the case property was kept in safe condition and was not tampered with. The case of prosecution is that the seal which was applied by Inspector Bhagwan was of "8 APS NB Delhi" and not "8A".
8. Besides this fact, there are contradictions in the testimony of recovery witnesses.
8.1. PW-1 and 4 claimed that the accused was searched 30-45 minutes after his apprehension at the spot, whereas, IO Inspector Bhagwan Singh deposed that he was searched within five minutes of noticing of accused.
8.2. PW-1 deposed that measurement, testing and preparation of pullandas was done inside the vehicle and at that time, accused was also sitting in the vehicle, as the accused was made to sit in the SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 18 of 31
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vehicle after his search, whereas, PW-4 deposed that the sealing was done outside the vehicle on footpath, and measurement and sampling was done inside the vehicle.
8.3. PW1 in his cross examination deposed that after sealing the pullandas, first document prepared was seizure memo and thereafter tehrir was prepared and no third document was prepared at the spot till the time he left the spot. This fact creates doubt as to whether FSL form was in fact prepared at the spot and in the manner as deposed by the witnesses.
8.4. PW1 deposed that till the time he and other police officials remained at the spot, some public persons came and inquired from them, whereas, PW-4 deposed that no public persons came and enquired from the police officials.
8.5. PW4 deposed that photocopy of seizure memo was handed over to Ct. Narender to be taken to the PS from the spot, whereas, the case of other witnesses was that carbon copy was taken and not photocopy. PW-4 used the word 'photocopy' twice in his examination in chief and even after he was specifically asked about it, he mentioned the document to be a photocopied one. There was no photocopier available with investigating team at the spot. It is nobody's case that seizure memo was got photocopied. Ld. Prosecutor did not question this witness on this aspect of the matter, even in the leading questions put to the witness by the prosecutor.
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8.6. PW-1 deposed that within five minutes of reaching the spot, the accused was noticed, whereas, PW-4 deposed that he was noticed ten minutes after reaching the spot. On the other hand, Inspector Bhagwan Singh deposed that accused was noticed 30 minutes after reaching the spot.
8.7. Admittedly, the log book of the vehicle which was used on the date of incident has not been proved.
9. IO deposed in his cross examination that he had got issued the weighing machine from the malkhana of Narcotics Cell on the date of incident and it was also deposited back to the Malkhana. But no entry of malkhana register has been proved.
10. The mobile phone location of PW-4 HC Kanwal Singh, summoned and proved by accused in D.E., Ex. DW3/A-2 reveals that on 16.08.2012 between 16.56.20 to 21.22.02 his phone was in Gurgaon and not at the place of incident. Although PW-4 claimed that he left his mobile phone no. 9711381803 at his Tilak Nagar residence but the phone was roaming in Gurgaon, further creates doubt about genuineness of case of prosecution.
11. Recovery of this case was effected within few hundred meters from Rohini District Courts Complex at about 3.40 PM, yet no one from the Rohini Court Complex was even attempted to be joined. The investigating officer as per his own case had received secret SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 20 of 31
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information at about 1.30 PM and recovery was effected more than two hours after the information, but still no Magistrate was even requested from Rohini Courts Complex to either come or to remain on standby.
12. The present case is under NDPS Act. It involves severe punishment, which in the present case may extend up to ten years. It is now accepted principle of criminal jurisprudence that severer or harsher the punishment is, stricter has to be the degree of proof and higher degree of assurance would be required.
12.1. In Mousam Singha Roy and Others v. State of West Bengal 2003 (3) JCC 1385 : [(2003) 12 SCC 377], Hon'ble Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since the higher degree of assurance is required to convict the accused."
13. There is no independent witness joined. Metro station Pitampura was located exactly near the spot and admittedly various residential houses and shops were located near the spot but neither anybody from the metro station nor anybody from the shops and houses was even requested to become witness, creating a serious doubt as to the genuineness of the case of prosecution.
14. In the present case, yet again no independent witness has been joined, despite the fact that secret information of this case was SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 21 of 31
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received well in advance. Admittedly, the information was received at 1.30 PM whereas the accused was apprehended at 3.45 PM. There was thus more than two hours available with the investigating officer to join independent witnesses, but no independent witness was joined. The fact that Section 100 of Cr.P.C has been flouted openly and deliberately would be revealed from the following circumstances. The office of Narcotics Cell is located at Shakarpur, Delhi. The place of apprehension of accused was near Pitam Pura Metro Station. Section 100 requires that two local independent respectable inhabitants of the locality have to be joined as witness. Instead of joining such persons or requesting such persons only passers-by were requested. It is noticed by this court that in almost all the cases of Narcotics Cell, whenever a raid is conducted in North-West area, the passersby are claimed to have been requested at ISBT or Burari Chowk or Mukundpur crossing. It bothers mind as to why every time when a raid is conducted by Narcotics Cell, only at these few places the passers-by are requested. At ISBT, the officials of government are available particularly during day time, and even at night time, but they are never requested. No bus driver or conductor of Government Transport Department is ever requested. No vehicle occupant is ever requested. If such bus drivers or conductors or vehicle occupants are requested and if they refuse, at least the investigating officer can note down the number of vehicle so that the court gets an opportunity to cross check the veracity of claim. At least the SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 22 of 31
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government officials can be requested so that if they refuse, the veracity of claim can be cross checked. But the Narcotics Cell officials never do that and always it is claimed that only passers-by were requested. Strangely, in none of the cases seen by this court till date, the name or address of any of the passersby is obtained or filed on record. The version put forth that even the passersby do not disclose their names and addresses to the police officials, that too in every case received in this court, is indigestible. In none of these cases including the present one, action was taken against the persons who refused to disclose their names and addresses.
Even if we leave the story of passersby apart, the most naturally available witnesses at the spot of the present case were the staff or security personnel available at the Metro Station. Admittedly, none of them was even requested. Investigating Officer did not even attempt to go to the metro station to request the staff posted there or the security guard or CISF personnel posted there or the Delhi Police Officials posted there. The Investigating Officer did not even attempt to join parking attendant of Metro Station. Had he done it, at least this court could have confirmed or cross checked the version whether those persons were even requested to become witness or not. The very fact that most naturally available witnesses at the spot are never requested in these kind of matters, create a grave suspicion about the truthfulness of version put forth in the court.
SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 23 of 31
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Besides the people available at metro station, including the passengers, admittedly, a large number of residential houses were located near the spot. The investigating officer did not even attempt to join anybody from the nearest residential houses or shops as witness. Avoiding going to the residential houses, shops or nearby establishments and claiming that only passers-by were requested who did not even tell their names and addresses, on the face of it suggests that the investigating agency has something to hide. This is not the only case seen by this court pertaining to Narcotics Cell. There are various other cases of Narcotics of different agencies i.e. Delhi Police, Special investigating team or the narcotics cell where recovery is claimed to have been effected from near the metro stations or residential localities but in none of these cases, even an effort is made to join witnesses from Metro Station or residential houses. Why does it happen that police officials request only passers-by and not anybody else? After all, how many of us have experienced that police requested us or our relatives or friends in such cases to become witness? These facts suggest that there is no attempt at all made to join independent witnesses. When the court comes to the conclusion that no attempt is made to join witness, the obvious thing which comes to mind is that the police officials have something to hide.
SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 24 of 31
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15. No doubt, in a given case even in absence of independent witnesses, the prosecution may succeed in proving its case, but at least the court should be satisfied with the veracity of version put forth by the police officials that sincere efforts were made to join independent witnesses. Police cannot be allowed to flout the provisions of Criminal Procedure Code that too with impunity, under the garb that passers-by do not join proceedings. In such circumstances, at least the name and particulars of those persons should be recorded.
It is now an era of technological revolution. When the investigating agency has repeatedly noticed that passersby do not agree to become witness, as claimed by them, help of electronic gadgets can be taken to lend credence to the version of prosecution. For example, a simple videography from a simple camera, which is now inbuilt in most of the mobile, about the accused coming to the spot in the manner as claimed in the present case and about his apprehension at the spot would be more than sufficient to lend credence to the case of prosecution. When investigating agency has prior information that accused is going to come to a particular spot, the least which could have been done was that some still images/ photograph/ videography could have been obtained by the investigating team, if the independent witnesses were not willing to join. But for some odd reason, it is never done. It was not done not SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 25 of 31
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only in this case, but it is not done in any of the cases. Gazetted officers or Magistrates are never taken along or kept on standby, particularly from outside the police department in such raids. Why does it happen that in every case, there is a refusal by the accused to exercise his/her rights U/s 50 NDPS Act? All these things create more than reasonable doubt that the true version is not being put forth in the court. After all the Rohini courts complex was admittedly located few hundred meters away, yet no one from the courts was even requested to become witness. Even if, before the accused was apprehended the investigating officer had paucity of time to go to residential houses, metro station or the courts, there was ample time available with the investigating officer after the accused was apprehended and before notice was served and the accused was searched. But it was not done. As mentioned above, there was more than two hours gap between the time when the information was received by the police and the accused was apprehended.
16. In the case of Mohd. Raffique vs. State 2000 CRI. L. J. 2401, Hon'ble Delhi High Court , observed as follows;
"6. In State of Punjab v. Baldev Singh (1999) 4 JT (SC) 595 : (1999 Cri LJ 3672), it was held that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the Act also to the extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Act, the safeguards provided under the Code of Criminal Procedure are also required to be followed. It is SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 26 of 31
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well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 of the Code of Criminal Procedure per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguards would be violative of the reasonable, fair and just procedure. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597), it was held that when a statute itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, an accused has the right to a reasonable, fair and just procedure. The statutory provisions embodied in Sections 41 to 55 and Section 57 of the Act and Sections 100, 102, 103 and 165 of the Code of Criminal Procedure provide for a reasonable, fair and just procedure.
7. Section 50 of the Act read along with sub-section (4) of Section 100, Cr.P.C. contemplates that search should, as far as practicable be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so the onus would be on the prosecution to establish that the association of such witness was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Thus, the statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against authorised officers. In other words, the Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of statutory safeguards committed by the authorized officer SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 27 of 31
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during search and seizure operations and may also undermine respect of law. That cannot be permitted.
8. It is undisputed that no public witness was associated during the course of search and seizure proceedings and the prosecution case hinges solely on the testimony of police officials. As per prosecution case the secret information was received at 9.35 a.m. and the appellant was apprehended at about 10 A.M. Thus, there was sufficient time to procure attendance of public witnesses to witness the search and seizure. This is not a case where due to urgency of the matter or for any other reason, it was not possible to comply with the provisions of sub-section (4) of Section 100 for associating public witness during the course of search and seizure. It is also undisputed that the appellant was apprehended in Gali Masjid Wali, which is a thickly populated area. Prosecution witnesses SHO P. L. Puri (P. W. 2) Constable Sukhram Pal (P.W. 3) Constable Jamil Ahmad (P. W./4) and SI Satpal (P.W. 6) want us to believe that at the relevant time public witnesses were approached but they declined to join the raiding party.
9 . It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons, who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may, in this context, be made to the provision of sub- section (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187, IPC. In the instant case, there is nothing to indicate that the authorized officer had served or even attempted to serve an order in writing upon any public witness as envisaged by sub-section (8) of Section 100, Cr.P.C. In this connection, I may usefully excerpt the following observations of Malik Sharief-u Din, J. in Rattan Lal v. State, (1987) 2 Crimes 29 (Delhi) :-
". . . . . . . .In the case in hand the seizure and the arrest have been made under Section 43 of NDPS Act. Admittedly, no public witness was SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 28 of 31
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involved in the matter of search and seizure as envisaged by sub- section (4) of Section 100, Cr.P.C. The explanation offered is that public witnesses were requested but they declined to co-operate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to co-operate without reasonable cause in spite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187, I.P.C. and this has been clearly spelt out in sub- section (8) of Section 100, Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards."
10. It has come in the evidence of Sub-Inspector Satpal (P.W. 6), Constable Jamil Ahmad (P.W. 4) and Constable Sukhram Pal (P.W. 3) that Gali Masjid Wali is a thickly populated area. It seems inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation. Having regard to the area and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made by Sub-Inspector Satpal (P.W. 6) to associate them before searching the appellant. I am unable to find any reason as to why he did not even make any attempt to associate any independent witness or witnesses during the course of search and seizure operation.
11. As stated earlier, the compliance with the procedural safeguards contained in the Code of Criminal Procedure and the Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the authorized officer. It has to borne in mind that where the error, irregularity or illegality touching the procedure committed by the authorized officer is so patent and SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 29 of 31
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loudly obtrusive that it leaves on his evidence an indelible stamp of infirmity or vice, which cannot be obliterated or cured, then it would be hazardous to place implicit reliance on it. The aforesaid circumstances make the court to be circumspect and look for corroboration of the testimony of the said police officials from independent sources. No such corroboration is coming forth in this case."
17. It is indeed true that mere non-joining of independent witnesses cannot be fatal. Indeed it may not be in a given case. But then the testimony of police witnesses must be inspiring and believable. In a serious case of NDPS Act, inviting stringent punishment, the above mentioned serious discrepancies cannot be ignored. An accused cannot be convicted on such tentative evidence. It is in the light of these discrepancies that non-joining of witnesses assumes significance.
18. Admittedly, signatures of accused were not obtained on the parcels, and the NCB guidelines were not complied qua keeping the sample parcels and FSL form etc. in an envelope and sealing the envelope thereafter. The recovery and seizure has not been made in accordance with the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi, and in this regard reliance is placed by the accused upon the case of Union of India Vs. Bal Mukund &Ors., 2009 Crl. L. J. 2407.
Clause 1.9 & 1.10 of the Instructions reads as under:-
"1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 30 of 31
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and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples.
1.10 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret-Drug sample/Test Memo"
to be sent to the chemical laboratory."
19. In the facts & circumstances of this case, benefit of doubt is given to the accused and accused is acquitted of the charges.
Announced in the open court Dig Vinay Singh on 08th day of January, 2014. Spl. Judge : NDPS / ASJ Rohini / Delhi SC no. 64/12 FIR no. 210/12 Dtd.. 08.01.2014 Pg.. 31 of 31